{ "id": 8468323, "name": "STATE OF NORTH CAROLINA v. JAMES EARL EWELL", "name_abbreviation": "State v. Ewell", "decision_date": "2005-01-18", "docket_number": "No. COA04-372", "first_page": "98", "last_page": "107", "citations": [ { "type": "official", "cite": "168 N.C. App. 98" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "First-degree sexual offense" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 51-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(bl)" }, { "page": "(bl)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "367-68", "parenthetical": "bruising around throat indicated defendant choked victim in process of rape; red and swollen eyes showed defendant tried to \"put her eyes out with his thumbs\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "year": 1988, "pin_cites": [ { "page": "739", "parenthetical": "bruising around throat indicated defendant choked victim in process of rape; red and swollen eyes showed defendant tried to \"put her eyes out with his thumbs\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "409 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508773, 2512398, 2513391, 2512817, 2513215 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0122-05", "/nc/330/0122-01", "/nc/330/0122-02", "/nc/330/0122-04", "/nc/330/0122-03" ] }, { "cite": "404 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519665 ], "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0087-01" ] }, { "cite": "594 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2004, "pin_cites": [ { "page": "422" }, { "page": "421" }, { "page": "422" }, { "page": "422" }, { "page": "422" }, { "page": "423" }, { "page": "423-24" }, { "page": "423" }, { "page": "423" }, { "page": "423" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920607 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "731" }, { "page": "731" }, { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0727-01" ] }, { "cite": "595 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "718", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896816 ], "year": 2004, "pin_cites": [ { "page": "258", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0254-01" ] }, { "cite": "370 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "322 N.C. 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515424 ], "year": 1988, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0818-01" ] }, { "cite": "359 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "465-66", "parenthetical": "evidence that hymen was not intact was alone insufficient to support evidence of a diagnosis of sexual abuse" } ], "opinion_index": 0 }, { "cite": "320 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724664 ], "year": 1987, "pin_cites": [ { "page": "614", "parenthetical": "evidence that hymen was not intact was alone insufficient to support evidence of a diagnosis of sexual abuse" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0610-01" ] }, { "cite": "488 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139501, 139663, 139349, 139671, 139676 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0551-05", "/nc/346/0551-01", "/nc/346/0551-04", "/nc/346/0551-02", "/nc/346/0551-03" ] }, { "cite": "485 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "90" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710305 ], "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0312-01" ] }, { "cite": "553 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138480 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0354-01" ] }, { "cite": "543 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "183-84" }, { "page": "184", "parenthetical": "alteration in original" }, { "page": "185" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441531 ], "weight": 3, "pin_cites": [ { "page": "418-19" }, { "page": "419" }, { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "571 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511280 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0428-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0046-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "789", "parenthetical": "citation omitted" }, { "page": "789", "parenthetical": "\"an expert witness may testify, upon proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "266-67", "parenthetical": "citation omitted" }, { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "341 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "316 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700970 ], "year": 1986, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0337-01" ] }, { "cite": "340 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "316 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696516 ], "year": 1986, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0152-01" ] }, { "cite": "303 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "807" } ], "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "year": 1983, "pin_cites": [ { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002", "parenthetical": "footnotes omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "904" } ], "opinion_index": 0 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "year": 1999, "pin_cites": [ { "page": "514-15" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0483-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "parenthetical": "applied to assignments of error regarding jury instructions" }, { "page": "378" }, { "page": "379", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 3, "year": 1983, "pin_cites": [ { "parenthetical": "applied to assignments of error regarding jury instructions" }, { "page": "660" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "367 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516596 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0309-01" ] }, { "cite": "370 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "355", "parenthetical": "citing State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988)" } ], "opinion_index": 0 }, { "cite": "322 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515580 ], "year": 1988, "pin_cites": [ { "page": "790", "parenthetical": "citing State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0783-01" ] } ], "analysis": { "cardinality": 934, "char_count": 23302, "ocr_confidence": 0.75, "pagerank": { "raw": 3.377927752998124e-07, "percentile": 0.8762120880406541 }, "sha256": "a28544d3d63515f8c7eca68d188e3f9b453ad0debdd724650469e948deb243fe", "simhash": "1:80bfd06038dfea2b", "word_count": 3832 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES EARL EWELL" ], "opinions": [ { "text": "TYSON, Judge.\nJames Earl Ewell (\u201cdefendant\u201d) appeals from judgments entered after a jury found him to be guilty of: (1) attempted first-degree sex offense of a child under the age of thirteen years (03 CRS 1673); (2) attempted statutory sex offense of a victim who was thirteen years old (03 CRS 1674); (3) statutory rape of a victim who was thirteen years of age (03 CRS 1675); (4) taking indecent liberties with a child who was thirteen years old (03 CRS 1675); (5) first-degree rape of a female under the age of thirteen years (03 CRS 1676); and (6) taking indecent liberties with a child under the age of thirteen (03 CRS 1676). We vacate defendant\u2019s convictions and order a new trial.\nI. Background\nDefendant dated J.H., a single mother'of four children. T.G. is J.H.\u2019s daughter, born on 22 May 1989. J.H. and her children lived in a small mobile home. Defendant occasionally stayed over at J.H.\u2019s home.\nThe State\u2019s evidence tended to show defendant initially engaged in nonconsensual sexual intercourse with T.G. on 27 January 2001, when T.G. was eleven. T.G. testified that from that day until September 2002 defendant allegedly forced her to engage in sexual intercourse on \u201cmore than thirteen\u201d occasions.\nIn October 2002, T.G. was diagnosed with Trichomonas, a sexually transmitted disease. T.G. initially told her mother that she had engaged in sexual relations with defendant\u2019s stepson, who may have transmitted the disease to her. However, defendant\u2019s stepson tested negative for the disease. T.G. then told her mother that defendant was sexually abusing her. She also spoke with Dr. Warren Webster, the school counselor, and Investigator Gregory Daniels (\u201cInvestigator Daniels\u201d) of the Martin County Sheriff\u2019s Office about the abuse. Dr. Webster reported the incidents to the Martin County Department of Social Services (\u201cDSS\u201d), who conducted an investigation. T.G. spoke with Investigator Daniels two more times. When T.G. initially returned with her mother, she recanted her story and stated that she had \u201cmade it up\u201d because she thought defendant was trying to hurt her mother. During her third interview, T.G. told Investigator Daniels that defendant had sexually abused her and that she lied earlier because she was scared of defendant.\nInvestigator Daniels and DSS referred T.G. to Dr. Kathleen Previll (\u201cDr. Previll\u201d) for a medical examination. Dr. Previll examined T.G. on 5 February 2003 and interviewed J.H. Dr. Previll found no signs of trauma surrounding T.G.\u2019s vaginal area and could not reach an opinion of whether T.G. was sexually active based on the physical evidence. She noted that although Trichomonas could be contracted without sexual contact, it was unlikely.\nDefendant was arrested on 23 June 2003. Defendant was later indicted for: (1) attempted first-degree sex offense; (2) attempted statutory sex offense; (3) statutory rape of person 13, 14, or 15; (4) indecent liberties with child; (5) first-degree statutory rape; and (6) indecent liberties with child.\nDefendant pled not guilty and did not testify or offer any evidence at trial. He was found guilty of: (1) attempted first-degree sex offense of a child under the age of thirteen years; (2) attempted statutory sex offense of a victim who was thirteen years old; (3) statutory rape of a victim who was thirteen years of age; and (4) taking indecent liberties with a child who was thirteen years old. The trial court found defendant possessed a prior record level of IV based on ten misdemeanor convictions. The trial court sentenced defendant to two consecutive active sentences of not less than 339 nor more than 416 months each. Defendant appeals.\nII. Issues\nDefendant\u2019s assignments of error are whether the trial court erred: (1) in admitting the testimony of Dr. Previll opining that T.G. \u201cprobably suffered sexual abuse;\u201d and (2) by failing to dismiss the charges due to insufficiency of the evidence that defendant and T.G. were not lawfully married. Defendant also asserts he was denied his constitutional rights to effective assistance of counsel when defendant\u2019s counsel failed to object to Dr. Previll\u2019s opinion testimony.\nIII. Admission of Dr. Prev\u00fcl\u2019s Opinion Testimony\nDefendant argues the trial court committed plain error by admitting the opinion testimony of Dr. Previll indicating it was \u201cprobable\u201d that T.G. was a victim of sexual abuse in the absence of any physical evidence. We agree.\nA. Preservation of Potential Error for Appellate Review\nRule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires:\nIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party\u2019s request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.\nN.C.R. App. P. 10(b)(1) (2004). Assignments of error are generally not considered on appellate review unless an appropriate and timely objection was entered. State v. Short, 322 N.C. 783, 790, 370 S.E.2d 351, 355 (1988) (citing State v. Reid, 322 N.C. 309, 367 S.E.2d 672 (1988)); N.C. Gen. Stat. \u00a7 15A-1446(a) (2003).\nOur review of the transcripts and record fails to show that defendant made a timely and specific objection when the State proffered Dr. Previll\u2019s opinion testimony into evidence. The State prefaced its question to Dr. Previll by stating to the trial court, \u201cI\u2019m not sure whether [defendant\u2019s counsel] is going to object to my next question . . . .\u201d Following Dr. Previll\u2019s response, the trial court asked defendant\u2019s counsel, \u201cAre you going to object to that?\u201d She answered, \u201cNo, sir.\u201d\nUnder Rule 10(b)(1), defendant failed to preserve this assignment of error for review.\nB. Plain Error Rule\nOur Supreme Court adopted the plain error rule as an exception to Rule 10 in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) (applied to assignments of error regarding jury instructions). A defendant seeking plain error review must \u201cspecifically and succinctly\u201d argue that any error committed by the trial court amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999). The proponent must show that:\n[A]fter reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trial\u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nOdom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Our Supreme Court has extended plain error review to issues concerning admissibility of evidence. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983).\nWe examine the entire record to decide whether the error \u201chad a probable impact on the jury\u2019s finding of guilt.\u201d Odom, 307 N.C. at 661, 300 S.E.2d at 379 (citation omitted). We determine whether, absent the error, would the jury have returned a different verdict. State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d 75, 80 (1986).\nDefendant properly argued in his brief with citations to relevant authority that the admission of Dr. Previll\u2019s opinion testimony constitutes plain error, warranting this Court\u2019s review of an otherwise unpreserved assignment of error.\n1. Expert Medical Testimony on Sexual Abuse\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (2003) provides, \u201cIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\u201d However, an expert\u2019s opinion testimony may not be used to establish or bolster the credibility of a witness. State v. Heath, 316 N.C. 337, 342, 341 S.E.2d 565, 568 (1986).\nOur Supreme Court stated in State v. Stancil, \u201cIn a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim\u2019s credibility.\u201d 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (citation omitted) (emphasis supplied).\nIn State v. Dixon, this Court stated:\n[A]n expert medical witness may render an opinion pursuant to Rule 702 that sexual abuse has in fact occurred if the State establishes a proper foundation, i.e. physical evidence consistent with sexual abuse. . . . However, in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is not admissible because it is an impermissible opinion regarding the victim\u2019s credibility.\n150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (emphasis supplied) (citing Stancil, 355 N.C. 266, 559 S.E.2d 788), per curiam aff\u2019d, 356 N.C. 428, 571 S.E.2d 584 (2002); see also State v. Grover, 142 N.C. App. 411, 418-19, 543 S.E.2d 179, 183-84 (Expert opinion testimony that a child has been sexually abused based solely on the child\u2019s statements lacks a proper foundation where no physical evidence of abuse is shown), aff\u2019d, 354 N.C. 354, 553 S.E.2d 679 (2001); State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 90 (Where there was no clinical evidence to support a diagnosis of sexual abuse, experts\u2019 \u201copinions that sexual abuse had occurred merely attested to truthfulness of the child\u201d witness and were inadmissible), disc. rev. denied, 346 N.C. 551, 488 S.E.2d 813 (1997); State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465-66 (1987) (evidence that hymen was not intact was alone insufficient to support evidence of a diagnosis of sexual abuse).\nHowever, \u201c[w]hile it is impermissible for an expert, in the absence of physical evidence, to testify that a child has been sexually abused, it is permissible for an expert to testify that a child exhibits \u2018characteristics [consistent with] abused children.\u2019 \u201d Grover, 142 N.C. App. at 419, 543 S.E.2d at 184 (alteration in original) (quoting State v. Aguallo, 322 N.C. 818, 821, 370 S.E.2d 676, 677 (1988)); see also Stancil, 355 N.C. at 267, 559 S.E.2d at 789 (\u201can expert witness may testify, upon proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.\u201d). This testimony is permitted \u201cto inform the jury that the lack of physical evidence of abuse is not conclusive that abuse did not occur.\u201d State v. Bush, 164 N.C. App. 254, 258, 595 S.E.2d 715, 718 (2004) (citations omitted).\n2. State v. Couser\nThis Court recently ruled on a similar issue in State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004). In Couser, the defendant was charged with first-degree statutory rape and taking indecent liberties with a child. Id. at 729, 594 S.E.2d at 422. The victim testified that the defendant forced her to engage in sexual intercourse. Id. at 728, 594 S.E.2d at 421. \u201cThe State offered further corroborating evidence from the victim\u2019s mother, father, sister, and another acquaintance.\u201d Id. at 729, 594 S.E.2d at 422. Finally, the medical doctor who examined the victim following the alleged incident testified that \u201cshe performed an examination on the victim and that her only abnormal finding was the presence of two abrasions on either side of the introitus\u201d and \u201cher diagnosis was probable sexual abuse with abrasions consistent with the victim\u2019s history of sexual assault.\u201d Id. at 729, 594 S.E.2d at 422. On cross examination, the doctor testified that \u201cthe abrasions on the introitus could be caused by something other than a sexual assault.\u201d Id. at 729, 594 S.E.2d at 422. The defendant\u2019s counsel failed to object to the doctor\u2019s testimony. Id. at 729, 594 S.E.2d at 423.\nThis Court found the admission of the doctor\u2019s testimony to be plain error due to several factors: (1) the only evidence that directly linked defendant to the alleged incident was the victim\u2019s testimony as corroborated by the mother, father, sister, and an acquaintance; (2) the defendant submitted to a rape suspect kit with negative results; (3) the doctor\u2019s \u201copinion was based on her examination and the history of the victim as given to her;\u201d (4) the abrasions the doctor observed on the victim\u2019s introitus \u201cwere not diagnostic nor specific to sexual abuse;\u201d (5) no evidence was proffered to show the \u201cvictim\u2019s behavior or symptoms following the assault were consistent with being sexually abused;\u201d and (6) the doctor\u2019s opinion testimony of \u201cprobable sexual abuse,\u201d could be \u201cconstrued by the jury to include\u201d an attempted rape and taking indecent liberties. Id. at 731-32, 594 S.E.2d at 423-24.\nHere, the State offered expert medical opinion testimony through Dr. Previll based upon: (1) her physical examination of T.G.; (2) T.G.\u2019s medical history; and (3) the existence of a sexually transmitted disease. The only physical indication of any sexual activity was T.G.\u2019s diagnosis and treatment for Trichomonas. Dr. Previll testified that based upon the physical exam, \u201c[t]here\u2019s no way ... I could prove or disprove that she\u2019s had sexual intercourse or been sexually active.\u201d She found none of the physical indicators for sexual activity, such as vaginal trauma, tears in the hymen, or other associated injuries, despite T.G.\u2019s allegations of \u201cmore than thirteen\u201d separate instances of sexual intercourse. See State v. Moore, 103 N.C. App. 87, 94, 404 S.E.2d 695, 699 (indications of sexual abuse include: (1) no hymenal tissue; (2) \u201cragged scar tissue;\u201d (3) a urinary tract infection; and (4) a significantly larger than normal vaginal opening for a child that age), disc. rev. denied, 330 N.C. 122, 409 S.E.2d 607 (1991); State v. Herring, 322 N.C. 733, 739, 370 S.E.2d 363, 367-68 (1988) (bruising around throat indicated defendant choked victim in process of rape; red and swollen eyes showed defendant tried to \u201cput her eyes out with his thumbs\u201d). Rather, T.G.\u2019s genital exam was within the \u201cnormal limits.\u201d Finally, on cross examination, Dr. Previll acknowledged that \u201cI\u2019m relying on the history [i.e., T.G.\u2019s statements] being true,\u201d in giving her opinion of probable sexual abuse.\nFollowing this Court\u2019s analysis in Dixon and Couser and our Supreme Court\u2019s decision in Standi, we conclude the admission of Dr. Previll\u2019s testimony that it was \u201cprobable that [T.G.] was a victim of sexual abuse\u201d was not based on any physical evidence or behaviors consistent with sexual abuse and was error. Since defendant did not object to Dr. Previll\u2019s opinion testimony, we consider whether this error constitutes plain error.\n3. Plain Error\nOur review of the entire transcript and record on appeal indicates the only evidence linking defendant to T.G. were her statements and other witnesses\u2019 corroborative testimony. A medical exam conducted six months after the last of \u201cat least thirteen\u201d alleged sexual assaults returned no evidence of vaginal trauma. T.G.\u2019s contraction of Trichomonas is the sole physical evidence that any sexual activity occurred. Dr. Previll testified that sexual intercourse was not the only path of the disease\u2019s transmission, although she acknowledged that nonsexual transmission was \u201cunlikely.\u201d T.G. initially told J.H. that defendant\u2019s stepson gave her the disease during intercourse. The stepson tested negative for the disease. No evidence was presented that defendant ever tested positive for Trichomonas. T.G.\u2019s post-incident anger management at school was described to be \u201clike many students.\u201d See Couser, 163 N.C. App. at 731, 594 S.E.2d at 423. In addition, T.G. recanted her allegations to Investigator Daniels.\n. In the absence of any physical evidence, the admission of Dr. Previll\u2019s opinion testimony that \u201cit was probable that [T.G.] was a victim of sexual abuse\u201d was error. See Couser, 163 N.C. App. at 731, 594 S.E.2d at 423. The improperly admitted opinion by a medical expert on T.G.\u2019s credibility prejudiced defendant in the eyes of the jury. See Odom, supra; see also Grover, 142 N.C. App. at 421, 543 S.E.2d at 185 (\u201c[W]e note that because all of the State\u2019s charges against defendant rest upon the alleged sexual abuse of defendant\u2019s two children, and because the inadmissible expert opinion lent credibility to the children\u2019s testimonies with no other supporting evidence, defendant is entitled to a new trial as to all charges.\u201d).\nThe State presented no other evidence beyond what T.G. told other witnesses. As such, T.G.\u2019s credibility was the strength of the State\u2019s case and evidence was presented to put T.G.\u2019s honesty in doubt. Consequently, any comment on T.G.\u2019s credibility weighed heavily on all charges. The jury could have interpreted Dr. Previll\u2019s testimony of \u201cprobable sexual abuse\u201d to include all of the sexual offenses defendant was charged with, even those not associated with physical injuries. See Couser, 163 N.C. App. at 731, 594 S.E.2d at 423. We hold the admission of Dr. Previll\u2019s expert medical opinion testimony was prejudicial to defendant and constitutes plain error.\nWe vacate defendant\u2019s convictions of: (1) attempted first-degree sex offense of a child under the age of thirteen years; (2) attempted statutory sex offense of a victim who was thirteen years old; (3) statutory rape of a victim who was thirteen years of age; and (4) taking indecent liberties with a child who was thirteen years old. In light of our holding, we do not address defendant\u2019s assignment of error regarding ineffective assistance of counsel.\nIV. Motion to Dismiss\nDefendant asserts the trial court erred in denying his motion to dismiss on all the charges due to the State\u2019s failure to show T.G. and defendant were not lawfully married during the period of time at issue. We address this issue because it may arise during any retrial of defendant and we disagree.\nDefendant was charged with: (1) attempted first-degree sex offense of a child under the age of thirteen years; (2) attempted statutory sex offense of a victim who was thirteen years old; (3) statutory rape of a victim who was thirteen years of age; (4) taking indecent liberties with a child who was thirteen years old; (5) first-degree rape of a female under the age of thirteen years; and (6) taking indecent liberties with a child under the age of thirteen.\nThe charges of attempted statutory sex offense and statutory rape allow for the defense of marriage. However, it only applies if the victim and perpetrator are lawfully married. See N.C. Gen. Stat. \u00a7 14-27.7A (2003). Under N.C. Gen. Stat. \u00a7 51-2(bl) (2003), defendant and T.G. could not be lawfully married. N.C. Gen. Stat. \u00a7 51-2(bl) states, \u201cIt shall be unlawful for any person under 14 years of age to marry.\u201d T.G. was between the ages of 11 and 13 during all the times and events at issue.\nThe remaining charges of: (1) attempted first-degree sex offense of a child under the age of thirteen years; (2) taking indecent liberties with a child who was thirteen years old; (3) first-degree rape of a female under the age of thirteen years; and (4) taking indecent liberties with a child under the age of thirteen do not permit lawful marriage as a defense. See N.C. Gen. Stat. \u00a7 14-27.4 (First-degree sexual offense), \u00a7 14-202.1 (Taking indecent liberties with children), and \u00a7 14-27.2(a)(l) (First-degree rape). This assignment of error is overruled.\nV. Conclusion\nThe admission of Dr. Previll\u2019s expert medical opinion testimony that it was \u201cprobable that [T.G.] was a victim of sexual abuse\u201d was plain and prejudicial error concerning all charges against defendant. A new trial is ordered for: (1) attempted first-degree sex offense of a child under the age of thirteen years; (2) attempted statutory sex offense of a victim who was thirteen years old; (3) statutory rape of a victim who was thirteen years of age; and (4) taking indecent liberties with a child who was thirteen years old. Lawful marriage is not a defense to the charges brought against defendant. We decline to address defendant\u2019s assertion of ineffective assistance of counsel.\nWe order a new trial in 03 CRS 1673, 03 CRS 1674, 03 CRS 1675, and 03 CRS 1676.\nNew Trial.\nJudges TIMMONS-GOODSON and GEER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Sue Y Little, for the State.", "Jeffrey Evan Noecker, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EARL EWELL\nNo. COA04-372\n(Filed 18 January 2005)\n1. Evidence\u2014 expert medical testimony \u2014 sexual abuse in absence of physical evidence \u2014 plain error\nThe trial court committed plain error in a first-degree sex offense, attempted statutory sex offense, statutory rape, and indecent liberties with a child case by admitting the opinion testimony of a doctor indicating it was probable that the minor child was a victim of sexual abuse in the absence of any physical evidence, because: (1) the improperly admitted opinion by a medical expert on the child\u2019s credibility prejudiced defendant in the eyes of the jury; and (2) the State presented no other evidence beyond what the child told other witnesses, and as such, the child\u2019s credibility was the strength of the State\u2019s case.\n2. Indecent Liberties; Rape; Sexual Offenses\u2014 defense of lawful marriage \u2014 validity of defense\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of first-degree sex offense, attempted statutory sex offense, statutory rape, and indecent liberties with a child based on the State\u2019s alleged failure to show that defendant and the child were not lawfully married during the period of time at issue, because: (1) even though the defense of marriage is valid for the charges of attempted statutory sex offense and statutory rape, defendant and the child could not be lawfully married when N.C.G.S. \u00a7 51-2(bl) states it is unlawful for any person under 14 years of age to marry, and the child in this case was between the ages of 11 and 13 during all the times and events at issue; and (2) the remaining charges of attempted first-degree sex offense of a child under the age of thirteen years, taking indecent liberties with a child who was thirteen years old, first-degree rape of a female under the age of thirteen years, and taking indecent liberties with a child under the age of thirteen, do not permit lawful marriage as a defense.\nAppeal by defendant from judgments entered 5 November 2003 by Judge Thomas D. Haigwood in Martin County Superior Court. Heard in the Court of Appeals 18 November 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Sue Y Little, for the State.\nJeffrey Evan Noecker, for defendant-appellant." }, "file_name": "0098-01", "first_page_order": 128, "last_page_order": 137 }