{ "id": 8318688, "name": "STATE OF NORTH CAROLINA v. STEPHEN M. DELSANTO", "name_abbreviation": "State v. Delsanto", "decision_date": "2005-08-02", "docket_number": "No. COA04-876", "first_page": "42", "last_page": "58", "citations": [ { "type": "official", "cite": "172 N.C. App. 42" } ], "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": "113 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523857 ], "year": 1994, "opinion_index": -1, "case_paths": [ "/nc-app/113/0605-01" ] }, { "cite": "614 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633129 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/614/0313-01" ] }, { "cite": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "612 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632786 ], "year": 2005, "pin_cites": [ { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0178-01" ] }, { "cite": "612 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632811 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding that it was error for the trial court to allow expert testimony that it was \"probable that [the child] was a victim of sexual abuse\" when the testimony \"was not based on physical evidence or behaviors consistent with sexual abuse\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0327-01" ] }, { "cite": "359 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632806, 3801643, 3799341, 3799472, 3797969, 3798866, 3801046, 3801465, 3794842, 3804923 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding that it was error for the trial court to allow expert testimony that it was \"probable that [the child] was a victim of sexual abuse\" when the testimony \"was not based on physical evidence or behaviors consistent with sexual abuse\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0324-01", "/nc/359/0412-08", "/nc/359/0412-02", "/nc/359/0412-07", "/nc/359/0412-05", "/nc/359/0412-01", "/nc/359/0412-03", "/nc/359/0412-06", "/nc/359/0412-04", "/nc/359/0412-09" ] }, { "cite": "575 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511412, 1511620, 1511326, 1511516 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0623-04", "/nc/356/0623-03", "/nc/356/0623-02", "/nc/356/0623-01" ] }, { "cite": "568 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "page": "294" }, { "page": "294" }, { "page": "291" }, { "page": "295" }, { "page": "295" }, { "page": "295" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250759 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "521" }, { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0514-01" ] }, { "cite": "594 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "252", "parenthetical": "quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920388 ], "year": 2004, "pin_cites": [ { "page": "701", "parenthetical": "quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0696-01" ] }, { "cite": "286 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "539", "parenthetical": "\"The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\"" } ], "opinion_index": 0 }, { "cite": "305 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566171 ], "year": 1982, "pin_cites": [ { "page": "112", "parenthetical": "\"The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0106-01" ] }, { "cite": "136 L. Ed. 2d 725", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "519 U.S. 1098", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11766148, 11766724, 11766277, 11766217, 11766569, 11766923, 11766409, 11766525, 11766862, 11766028, 11766096, 11766644, 11766460, 11766781 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/519/1098-03", "/us/519/1098-11", "/us/519/1098-05", "/us/519/1098-04", "/us/519/1098-09", "/us/519/1098-14", "/us/519/1098-06", "/us/519/1098-08", "/us/519/1098-13", "/us/519/1098-01", "/us/519/1098-02", "/us/519/1098-10", "/us/519/1098-07", "/us/519/1098-12" ] }, { "cite": "472 S.E.2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "343 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798808 ], "year": 1996, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0634-01" ] }, { "cite": "439 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "813" }, { "page": "813" }, { "page": "814" }, { "page": "815" } ], "opinion_index": 0 }, { "cite": "285 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "821" } ], "opinion_index": 0 }, { "cite": "304 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570316 ], "year": 1982, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0643-01" ] }, { "cite": "369 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "825" }, { "page": "822" }, { "page": "822-23" }, { "page": "822-23" }, { "page": "824", "parenthetical": "second alteration in original" }, { "page": "825" } ], "opinion_index": 0 }, { "cite": "322 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514083 ], "year": 1988, "pin_cites": [ { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0585-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "893" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "567 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "356 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511282 ], "year": 2002, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0150-01" ] }, { "cite": "364 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "321 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569213 ], "year": 1988, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0574-01" ] }, { "cite": "170 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006213 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/170/0584-01" ] }, { "cite": "552 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "215-16" }, { "page": "215-16" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355762 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "240" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0234-01" ] }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36-37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "pin_cites": [ { "parenthetical": "footnote omitted" } ], "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, "pin_cites": [ { "parenthetical": "footnote omitted" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnote omitted)" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnote omitted)" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "303 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "807", "parenthetical": "applying plain error review to the admissibility of evidence under N.C.R. App. P. 10(b)(1)" } ], "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "year": 1983, "pin_cites": [ { "page": "741", "parenthetical": "applying plain error review to the admissibility of evidence under N.C.R. App. P. 10(b)(1)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] }, { "cite": "170 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004257 ], "year": 2005, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0068-01" ] }, { "cite": "571 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "concluding that it was improper to allow an expert opinion that the victim had in fact been sexually abused when no physical evidence supported a finding of sexual abuse" } ], "opinion_index": 0 }, { "cite": "356 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511280 ], "year": 2002, "pin_cites": [ { "parenthetical": "concluding that it was improper to allow an expert opinion that the victim had in fact been sexually abused when no physical evidence supported a finding of sexual abuse" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0428-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "598-99", "parenthetical": "concluding that it was improper to allow an expert opinion that the victim had in fact been sexually abused when no physical evidence supported a finding of sexual abuse" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "year": 2002, "pin_cites": [ { "page": "53", "parenthetical": "concluding that it was improper to allow an expert opinion that the victim had in fact been sexually abused when no physical evidence supported a finding of sexual abuse" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0046-01" ] }, { "cite": "594 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2004, "pin_cites": [ { "page": "422-23", "parenthetical": "finding error when the trial court permitted an expert to testify that she diagnosed the victim with \"probable sexual abuse\" when there was insufficient physical evidence of such abuse" }, { "page": "423" }, { "page": "423" }, { "page": "422-23" }, { "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": 6, "year": 2004, "pin_cites": [ { "page": "729", "parenthetical": "finding error when the trial court permitted an expert to testify that she diagnosed the victim with \"probable sexual abuse\" when there was insufficient physical evidence of such abuse" }, { "page": "731" }, { "page": "731" }, { "page": "730-31" }, { "page": "731" }, { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0727-01" ] }, { "cite": "606 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "919" }, { "page": "920" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468323 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "105" }, { "page": "105-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0098-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "789", "parenthetical": "per curiam" }, { "page": "789" } ], "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": "per curiam" }, { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "595 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2004, "pin_cites": [ { "page": "718", "parenthetical": "quoting State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam)" }, { "page": "719" }, { "page": "718" }, { "page": "718" }, { "page": "718-19" }, { "page": "719" }, { "page": "719" }, { "page": "720", "parenthetical": "admission of evidence that a defendant accused of sexual assault on a minor possessed and purchased pornographic videos was inadmissible under Rule 404(b) and prejudicial at trial" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896816 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "258", "parenthetical": "quoting State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam)" }, { "page": "260" }, { "page": "259-60" }, { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0254-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "113 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523857 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/113/0605-01" ] }, { "cite": "144 L. Ed. 2d 219", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "526 U.S. 1161", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11221024, 11221440, 11221250, 11221057, 11221476, 11221003, 11221356, 11220974, 11221212, 11221110, 11221176, 11221146, 11221307, 11221404, 11221085 ], "year": 1999, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/us/526/1161-03", "/us/526/1161-14", "/us/526/1161-10", "/us/526/1161-04", "/us/526/1161-15", "/us/526/1161-02", "/us/526/1161-12", "/us/526/1161-01", "/us/526/1161-09", "/us/526/1161-06", "/us/526/1161-08", "/us/526/1161-07", "/us/526/1161-11", "/us/526/1161-13", "/us/526/1161-05" ] }, { "cite": "506 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "470" } ], "opinion_index": 1 }, { "cite": "349 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571614 ], "year": 1998, "pin_cites": [ { "page": "29" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0001-01" ] }, { "cite": "145 L. Ed. 2d 681", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 1 }, { "cite": "528 U.S. 1084", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9662082, 9662211, 9662499, 9662246, 9662407, 9662603, 9662126, 9662289, 9662367, 9662455, 9662552, 9662169, 9662042, 9662335 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/us/528/1084-02", "/us/528/1084-05", "/us/528/1084-12", "/us/528/1084-06", "/us/528/1084-10", "/us/528/1084-14", "/us/528/1084-03", "/us/528/1084-07", "/us/528/1084-09", "/us/528/1084-11", "/us/528/1084-13", "/us/528/1084-04", "/us/528/1084-01", "/us/528/1084-08" ] }, { "cite": "516 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "118", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "350 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132292 ], "year": 1999, "pin_cites": [ { "page": "427", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/350/0411-01" ] }, { "cite": "485 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "89", "parenthetical": "internal citations omitted" } ], "opinion_index": 1 }, { "cite": "126 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710305 ], "year": 1997, "pin_cites": [ { "page": "315", "parenthetical": "internal citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/126/0312-01" ] }, { "cite": "359 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "465" } ], "opinion_index": 1 }, { "cite": "320 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724664 ], "year": 1987, "pin_cites": [ { "page": "614" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0610-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 1 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "opinion_index": 1 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc-app/150/0046-01" ] }, { "cite": "594 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 1 }, { "cite": "163 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920607 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/nc-app/163/0727-01" ] }, { "cite": "595 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 1 }, { "cite": "164 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896816 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/nc-app/164/0254-01" ] } ], "analysis": { "cardinality": 1270, "char_count": 38417, "ocr_confidence": 0.758, "pagerank": { "raw": 1.521368099086658e-07, "percentile": 0.6693434636536725 }, "sha256": "6b9500076addad2938dfbd3dd805cb4749793d03e12607e893e6be397e673e46", "simhash": "1:2502c5eaa43facca", "word_count": 6423 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEELMAN concurs.", "Judge BRYANT concurs in part and dissents in part with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. STEPHEN M. DELSANTO" ], "opinions": [ { "text": "McGEE, Judge.\nStephen M. Delsanto (defendant) was indicted on one count of first degree sexual offense, in violation of N.C. Gen. Stat. \u00a7 14-27.4 (2003), and one count of taking indecent liberties with a child, in violation of N.C. Gen. Stat. \u00a7 14-202.1 (2003).\nThe State\u2019s evidence at trial tended to show that defendant stayed at the home of his daughter (Bonnie) from 30 September 2002 to 3 October 2002. Defendant\u2019s ex-wife (Brenda), son-in-law (Bobby), and twin grandchildren (H.B. and W.B.) were also living in the home. H.B. and W.B. were three years old at the time.\nBobby testified that on the evening of 3 October 2002, he was watching television with H.B. and W.B., when H.B. began rubbing her genital area. H.B. complained of pain and said \u201cPawpaw [defendant] touched me down there.\u201d H.B. also said \u201cPawpaw messed with [W.B.\u2019s] penis.\u201d Bobby reported this information to Brenda, but did not tell Bonnie because Bonnie was sleeping at the time.\nThe following day, Brenda told Bonnie what Bobby had learned. Bonnie asked H.B. and W.B. whether they spoke with Bobby the night before. H.B. said yes, and that defendant had touched her \u201cginny,\u201d her shortened term for vagina. Bonnie retrieved a doll and asked H.B. to show Bonnie where defendant had touched H.B. H.B. spread the doll\u2019s legs and put her finger on the genital area. Bonnie called the Davie County Department of Social Services and Detective John Stephens (Detective Stephens) with the Davie County Sheriff\u2019s Department.\nDetective Stephens interviewed H.B. He testified that H.B. told him that her \u201cPawpaw touched her gina and put his finger in there, and it hurt.\u201d H.B. also stated that defendant touched W.B.\u2019s genitals. Detective Stephens was unable to successfully interview W.B. Detective Stephens made an appointment for H.B. to visit a pediatrician, Dr. Kathleen Russo (Dr. Russo), for an evaluation. Detective Stephens did not make an appointment for W.B. because, based on the allegations, there would have been no physical evidence of abuse.\nDr. Russo testified that she had received advanced recognition by the University of North Carolina Child Medical Evaluation Program, which signified that she had received advanced training in child sexual abuse. Dr. Russo testified that she examined H.B. on 18 October 2002. Dr. Russo asked H.B. if anyone had \u201ctouched [her] or hurt [her] some place that [she] did not like.\u201d H.B. responded that defendant touched her \u201cinside\u201d her genitals. H.B. also demonstrated this act on an anatomically correct doll.\nDr. Russo then completed a physical examination but did not note any trauma or indications of abuse in H.B.\u2019s genital area. Dr. Russo testified that although she did not observe any physical manifestations of sexual abuse, the examination was \u201cabsolutely consistent\u201d with H.B.\u2019s assertion that defendant touched her genital area. Dr. Russo explained that the anatomy of the female genital area is such that healing and return to the pre-trauma condition can occur very rapidly. Dr. Russo then testified that she diagnosed H.B. as having \u201csuffered from the sexual abuse that she disclosed to [Dr. Russo] and [H.B.\u2019s] family.\u201d\nL.B., defendant\u2019s twenty-seven-year-old niece, also testified at trial that defendant was her babysitter when she was about four years old. L.B. testified that defendant would tell her to lie on the bed, then he would remove her pants and underwear, touch her genital area and perform oral sex on her. She also stated that on one occasion defendant made her touch and kiss his penis. L.B. testified that she only told her parents and stepmother about this abuse, but that she was aware that other family members had discussed the abuse with Bonnie.\nDeborah Gordon (Gordon) testified on behalf of defendant. On cross-examination, Gordon testified that she helped retrieve some of defendant\u2019s belongings from Bonnie\u2019s home. Gordon testified that defendant had a backpack of \u201cvulgar\u201d magazines and some pairs of women\u2019s underwear.\nThe jury convicted defendant of first degree sexual offense with H.B., but acquitted defendant on the charge of indecent liberties with W.B. The trial court entered judgment on 15 September 2003 and sentenced defendant to a minimum term of 288 months and a maximum term of 355 months in prison. Defendant appeals.\nI.\nDefendant assigns error to the trial court\u2019s admission of Dr. Russo\u2019s testimony that she diagnosed H.B. as having been sexually abused by defendant. Defendant argues that this testimony was an impermissible expert opinion on H.B.\u2019s credibility.\n\u201c \u2018In 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.\u2019 \u201d State v. Bush, 164 N.C. App. 254, 258, 595 S.E.2d 715, 718 (2004) (quoting State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam)); see also State v. Ewell, 168 N.C. App. 98, 105, 606 S.E.2d 914, 919, disc. review denied, 359 N.C. 412, 612 S.E.2d 327 (2005) (holding that it was error for the trial court to allow expert testimony that it was \u201cprobable that [the child] was a victim of sexual abuse\u201d when the testimony \u201cwas not based on physical evidence or behaviors consistent with sexual abuse\u201d); State v. Couser, 163 N.C. App. 727, 729, 594 S.E.2d 420, 422-23 (2004) (finding error when the trial court permitted an expert to testify that she diagnosed the victim with \u201cprobable sexual abuse\u201d when there was insufficient physical evidence of such abuse); State v. Dixon, 150 N.C. App. 46, 53, 563 S.E.2d 594, 598-99, aff\u2019d per curiam, 356 N.C. 428, 571 S.E.2d 584 (2002) (concluding that it was improper to allow an expert opinion that the victim had in fact been sexually abused when no physical evidence supported a finding of sexual abuse).\nIn Bush, our Court held that it was plain error for the trial court to permit an expert witness to testify that she diagnosed the victim as having been sexually abused by the defendant. Bush, 164 N.C. App. at 260, 595 S.E.2d at 719. The expert witness, who was also Dr. Russo, testified that a lack of physical evidence was \u201cabsolutely consistent\u201d with the victim being sexually abused, because physical evidence of abuse is not always present. Id. at 259, 595 S.E.2d at 718. Dr. Russo testified that she diagnosed the victim as having been sexually abused by. the defendant, stating:\n\u201cI was impressed by [the victim\u2019s] sensory recollection. Children cannot fantasize visual and other sensory experiences at the same time and the fact that she could tell me how she felt, how she was feeling that evening, what she felt, and what she did when she realized what was happening, what [the defendant\u2019s] response was when she realized he was waking up, where they were, where the other people in the family were at the time, all of that other sensory recollection was very telling and adds to the credibility of her story.\u201d\nId. at 259, 595 S.E.2d at 718. Our Court held that it was plain error to admit the expert witness\u2019 conclusive statement that the defendant had sexually abused the victim since the only evidence that the defendant sexually abused the victim was the victim\u2019s own testimony and the corroboration of other witnesses. Id. at 259, 595 S.E.2d at 718-19. As a result, \u201c[t]he practical effect of Dr. Russo\u2019s testimony was to give [the victim\u2019s] story a stamp of credibility by an expert in pediatric gynecology[.]\u201d Id. at 259, 595 S.E.2d at 719.\nBush is remarkably similar to the case before us. The only evidence that defendant sexually abused H.B. is H.B.\u2019s own statements to the testifying witnesses. There was no physical evidence that H.B. had been sexually abused; yet, just like in Bush, Dr. Russo testified that this lack of physical evidence was \u201cabsolutely consistent\u201d with H.B.\u2019s account. Furthermore, Dr. Russo conclusively stated that defendant sexually assaulted H.B. when she testified that she diagnosed H.B. as having been sexually abused by defendant:\nQ. I want to ask you now, after you conducted the physical examination and you conducted the interview with [H.B.], at some point in time did you form a medical diagnosis of [H.B.] at that time?\nA. Yes, I did, sir.\nQ. And what was your diagnosis?\nA. My diagnosis was that [H.B.] had suffered from the'sexual abuse that she disclosed to me and her family. And my feelings were that [H.B.] being a three year old child could not fantasize that these events occurred. She could not make them up. Children that young do not have the ability to fantasize or\u2014\n[Attorney For Defendant]: Objection.\nA. \u2014make up\u2014\nThe Court: Overruled.\nA. \u2014an act like that that they have not experienced. It\u2019s not within their mental ability to do that. So based on what she told me, the consistency of what she told me, what she told the parents, what she told law enforcement was just all very striking, and that I felt like she was \u2014 that she did experience that abuse.\nUnder Bush, Dr. Russo\u2019s expert opinion that defendant sexually abused H.B. amounted to an impermissible opinion of H.B.\u2019s credibility. It was error for the trial court to admit the opinion.\nThe State argues that defendant has failed to preserve this assignment of error because defendant made only a general objection to Dr. Russo\u2019s testimony regarding the diagnosis. A general objection is normally not sufficient to preserve an issue for review on appeal. See N.C.R. App. P. 10(b)(1). Accordingly, we grant defendant\u2019s request to review for plain error. See State v. Andrews, 170 N.C. App. 68, 75, 612 S.E.2d 178, 183 (2005); see also State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983) (applying plain error review to the admissibility of evidence under N.C.R. App. P. 10(b)(1)).\nOur Supreme Court has directed that plain error has occurred when an error \u201c \u2018 \u201chad a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d \u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnote omitted)). In this case, we find that Dr. Russo\u2019s inadmissible opinion likely had an impact on the jury\u2019s finding of guilt.\nA trial court commits plain error when it admits expert testimony on a victim\u2019s credibility because it prejudices the defendant in the eyes of the jury. Couser, 163 N.C. App. at 731, 594 S.E.2d at 423; see also Ewell, 168 N.C. App. at 105-06, 606 S.E.2d at 920, and Bush, 164 N.C. App. at 259-60, 595 S.E.2d at 719. In Couser, the only evidence that the defendant sexually abused the minor victim was the victim\u2019s own testimony and the corroborating testimony of witnesses. Couser, 163 N.C. App. at 731, 594 S.E.2d at 423. We held that it was plain error for an expert to testify that she diagnosed the victim as having \u201cprobably [been] sexually abused.\u201d Id. at 730-31, 594 S.E.2d at 422-23. We found .that the testimony likely impacted the jury\u2019s finding of guilt since it was an improper opinion of the victim\u2019s credibility, and \u201cthe central issue to be decided by the jury was the credibility of the victim.\u201d Id. at 731, 594 S.E.2d at 423.\nLike in Couser, the only evidence of H.B.\u2019s allegations were her own statements. H.B.\u2019s credibility was the central issue in the case, and Dr. Russo\u2019s inadmissible expert opinion lent great weight to H.B.\u2019s credibility. Had the jury not heard Dr. Russo\u2019s inadmissible expert opinion, there is a reasonable possibility that the jury would have reached a different result. In accordance with this Court\u2019s previous decisions on this issue, we find plain error. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d); see also In re R.T.W., 359 N.C. 539, 542 n3, 614 S.E.2d 489, 491 n3 (2005).\nThe State argues that State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212 (2001), modified and aff\u2019d per curiam, 355 N.C. 266, 559 S.E.2d 788 (2002)), and not Couser, controls this case. Although our Supreme Court found that the admission of the expert testimony in Stancil was error, it held that the error was not plain error because there was overwhelming evidence of the defendant\u2019s guilt. Stancil, 355 N.C. at 267, 559 S.E.2d at 789. Our Court rejected a similar argument in Couser, where we noted that, in Standi, \u201cin addition to testimony of the victim and other corroborating evidence^] there were two permissible expert opinions that the victim exhibited characteristics consistent with sexual abuse.\u201d Couser, 163 N.C. App. at 730-31, 594 S.E.2d at 423 (citing Stancil, 146 N.C. App. at 240, 552 S.E.2d at 215-16). The victim in Standi also \u201cshowed intense and immediate emotional trauma after the incident,\u201d and continued to show such symptoms five days later. Couser, 163 N.C. App. at 731, 594 S.E.2d at 423 (citing Stancil, 146 N.C. App. at 240, 552 S.E.2d at 215-16). We then contrasted this \u201coverwhelming\u201d evidence with the evidence in Couser: the mere testimony of the victim and the other witnesses\u2019s corroboration. Couser, 163 N.C. App. at 731, 594 S.E.2d at 423. Unlike in Standi, there was no other permissible expert testimony in Couser, nor was there evidence that the victim exhibited behaviors that were consistent with having suffered from sexual assault. Id. at 731, 594 S.E.2d at 423.\nWe find that Couser, and not Standi, controls this case. The State did not present other overwhelming evidence of defendant\u2019s guilt. Dr. Russo\u2019s inadmissible expert opinion was the only expert witness testimony for the State. Although H.B.\u2019s family member testified that H.B.\u2019s behavior had changed since the incident, there was no evidence that this behavior was symptomatic of having suffered sexual abuse. In the absence of overwhelming evidence of defendant\u2019s guilt, we find that the admission of Dr. Russo\u2019s diagnosis was plain error.\nWe also distinguish this case from this Court\u2019s recent decision in State v. Goforth, 170 N.C. App. 584, 614 S.E.2d 313 (2005). In Goforth, this Court held that it was not error to admit expert opinion testimony that the victims had been repeatedly sexually abused. Id. at 590-91, 614 S.E.2d at 317-18. The expert testified that both victims had physical manifestations of vaginal trauma caused by \u201cintentional\u201d or \u201cnot accidental\u201d penetration. Id. at 590-91, 614 S.E.2d at 317. Therefore, in Goforth, the expert\u2019s testimony involved objective physical evidence of sexual abuse. In contrast, the only physical manifestation of injury suffered by H.B. in this case was pain, which is subjective and not independently verifiable. Therefore, it was improper for Dr. Russo to testify that she diagnosed H.B. as having been sexually abused.\nFinding plain error, we grant defendant a new trial. However, we elect to address defendant\u2019s remaining assignments of error since the issues are likely to recur upon retrial.\nII.\nDefendant argues that the trial court committed error when it overruled defendant\u2019s objection and permitted L.B. to testify that defendant had sexually abused her twenty-three years earlier. At trial, after the parties conducted a voir dire hearing on L.B.\u2019s testimony, defendant objected to the testimony on the grounds that it was improper evidence under Rule 404(b). N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2003). The trial court admitted the testimony, and instructed the jury that \u201c[t]his evidence will be received solely for the purpose of showing that there existed in the mind of the [defendant a scheme, plan, system, or design involving the crime charged in this case.\u201d\nRule 404(b) states:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nId. Our Supreme Court has held that, under Rule 404(b), \u201cevidence of prior sex acts may have some relevance to the question of [the] defendant\u2019s guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity.\u201d State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). However, the admissibility of evidence under Rule 404(b) \u201cis constrained by the requirements of similarity and temporal proximity.\u201d State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). Furthermore, \u201c[r]emoteness in time between an uncharged crime and a charged crime is more significant when the evidence of the prior crime is introduced to show that both crimes arose out of a common scheme or plan.\u201d State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991). Evidence that a defendant engaged in previous sexual abuse is inadmissible when a significant lapse of time exists between the instances of alleged sexual abuse. State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 825 (1988).\nIn Jones, the twelve-year-old victim alleged that the defendant, her stepfather, sexually assaulted her. Id. at 586, 369 S.E.2d at 822. A witness testified that the defendant, with whom the witness formerly lived, had sexually assaulted the witness in the same manner. Id. at 586, 369 S.E.2d at 822-23. The witness testified that this abuse occurred seven years earlier, beginning when the witness was eleven years old. Id. at 586, 369 S.E.2d at 822-23. Our Supreme Court held that the admission of this testimony was in error since the time period between the two acts was \u201cseverely attenuated [and] \u2018substantially negate [s] the plausibility of the existence of an ongoing and continuous plan to engage persistently in such deviant activities.\u2019 \u201d Id. at 590, 369 S.E.2d at 824 (second alteration in original) (quoting State v. Shane, 304 N.C. 643, 656, 285 S.E.2d 813, 821 (1982)). The Court found that the \u201cprobative impact [of the evidence] ha[d] been so attenuated by time that it ha[d] become little more than character evidence illustrating the predisposition of the accused.\u201d Id. at 590, 369 S.E.2d at 825.\nLike in Jones, the extreme time lapse between the alleged instances of abuse merits against finding that defendant was engaged in an ongoing plan or scheme of sexual abuse. Because the evidence was admitted solely for the purpose of showing a \u201cscheme, plan, system or design,\u201d and because of the lapse of twenty-three years, a significant period of time, the trial court erred in admitting this evidence.\nThe State argues that State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812 (1994), controls this case. In Jacob, the victim testified that the defendant, her father, raped her three times when she was ten years old. Id. at 606, 439 S.E.2d at 813. Over the defendant\u2019s objection, the defendant\u2019s twenty-two-year-old daughter testified that the defendant sexually abused her when she was around nine years old. Id. at 607, 439 S.E.2d at 813. A witness testified that the defendant had told her \u201cwhen my daughters get old enough to know about love, [I am] going to be the one to teach them.\u201d Id. at 609, 439 S.E.2d at 814. We held that the incidents of sexual assault were not too remote in time to show that the defendant had a common scheme or plan to initiate his prepubescent daughters into sex since \u201cthe remoteness in time was due to [the] defendant\u2019s having almost no access to the daughters of his first marriage following his divorce. . . . [The victim] was not born until [4 years after the defendant\u2019s divorce], and did not reach a prepubescent age until several years later.\u201d Id. at 611, 439 S.E.2d at 815.\nWe find Jacob distinguishable from this case. Unlike in Jacob, the State has offered no evidence that defendant did not have any access to his preferred victim during the twenty-three year time span between the alleged instances of abuse. The State has failed to establish that defendant\u2019s plan was interrupted and then resumed twenty-three years later. The admission of this evidence was in error and should not be admitted at his new trial.\nIn the alternative, the State argues that L.B.\u2019s testimony was admissible under Rule 404(b) to show identity and intent. The trial transcript reveals that the State did not rely on these grounds when it argued for the admissibility of the evidence before the trial court. Rather, the State relied on the theory that the testimony was admissible to show a common scheme or plan. Since the argument of identity and intent has been raised for the first time on appeal, it is not properly before us. State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997); see also State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) (\u201cThe theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\u201d).\nIII.\nThe final assignment of error addressed in defendant\u2019s brief contends that the trial court erred when it allowed the State to elicit Gordon\u2019s testimony that defendant possessed pornographic magazines and women\u2019s underwear. Defendant failed to object to this evidence at trial, and asks that we review for plain error. In order to determine whether plain error occurred at the trial court, we \u201c \u2018must examine the entire record and determine if the . . . error had a probable impact on the jury\u2019s finding of guilt.\u2019 \u201d State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 252 (2004) (quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)).\nUnder Rule 404(b), \u201cevidence of a defendant\u2019s prior conduct, such as the possession of pornographic videos and magazines, is not admissible to prove the character of the defendant in order to show that the defendant acted in conformity therewith on a particular occasion.\u201d State v. Smith, 152 N.C. App. 514, 521, 568 S.E.2d 289, 294, disc. review denied, 356 N.C. 623, 575 S.E.2d 757 (2002). Such evidence is only permissible if it is relevant to show something other than a defendant\u2019s character or propensity to commit the crime of which he is charged. N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b); Smith, 152 N.C. App. at 521, 568 S.E.2d at 294.\nIn Smith, the defendant was accused of sexually assaulting his stepdaughter. Id. at 516, 568 S.E.2d at 291. Our Court held that the trial court erred by admitting evidence that the defendant possessed pornographic magazines. Id. at 521, 568 S.E.2d at 295. There was no evidence that the defendant had shown the victim pornography or otherwise used the pornography during the alleged assaults, and consequently the defendant\u2019s possession of the pornography was not relevant to prove that the defendant committed the charged offenses. Id. at 523, 568 S.E.2d at 295. Therefore, we held that the sole purpose of the evidence \u201cwas to impermissibly inject [the] defendant\u2019s character into the case to raise the question of whether [the] defendant acted in conformity with his character at the times in question.\u201d Id. at 522, 568 S.E.2d at 295; accord Bush, 164 N.C. App. at 262, 595 S.E.2d at 720 (admission of evidence that a defendant accused of sexual assault on a minor possessed and purchased pornographic videos was inadmissible under Rule 404(b) and prejudicial at trial).\nAs in Smith, the State presented no evidence that defendant\u2019s possession of pornographic magazines and women\u2019s underwear played any part in the alleged offenses. Therefore, the evidence was not relevant to prove the charges against him and was merely impermissible character evidence. The admission of the evidence was in error. However, we do not find that the error amounts to plain error. There is no indication that the error had any impact on the jury\u2019s finding of guilt. Nevertheless, the admission of the testimony for the purpose of showing defendant\u2019s propensity to commit the crime was in error and should not be presented at defendant\u2019s new trial for this same purpose.\nWe deem those assignments of error not addressed in defendant\u2019s brief abandoned. N.C.R. App. 28(b)(6).\nNew trial.\nJudge STEELMAN concurs.\nJudge BRYANT concurs in part and dissents in part with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "BRYANT, Judge\nconcurring in part and dissenting in part.\nI dissent from the majority opinion granting defendant a new trial upon finding plain error in the admission of Dr. Russo\u2019s testimony. I disagree that the trial court committed any error by admitting the testimony of Dr. Russo, and I strongly disagree that there was plain error committed. The majority states the expert medical opinion of Dr. Russo was impermissible testimony on the victim\u2019s credibility. However, the record shows Dr. Russo\u2019s expert medical opinion was based on her training and experience. Dr. Russo was tendered and admitted as an expert in \u201cpediatric gynecology\u201d and in \u201cchild [sexual] abuse\u201d. The record also shows that in addition to extensive medical training in pediatrics and child abuse, Dr. Russo had interviewed and examined child victims of physical and sexual abuse, on average, once a week for seven years prior to her testimony.\nRule 702 provides in part:\nIf 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.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702 (2003).\n\u201cIn determining whether expert medical opinion is to be admitted into evidence the inquiry should be . . . whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.\u201d State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465 (1987). Here, based on training and experience, Dr. Russo was certainly in a better position to have an opinion on whether the child in the instant case had been sexually abused. Dr. Russo evaluates each child\u2019s intellectual ability as a part of her examination. As a medical professional she must determine whether a child can accurately relay medical information in order for her to use that information in medically diagnosing or treating a child patient.\nWhen asked at trial if her physical examination of the child was consistent with the history given, Dr. Russo replied:\nIt was absolutely consistent. With what [the child] stated happened, I would expect a normal examination. The tissues down there are very elastic. In other words, they can stretch and then return to their normal shape. Also, healing is very rapid in that area . . . and [] takes place very quickly. So with the type of abuse that she disclosed, I would not expect to see signs of trauma or damage. ...\nDr. Russo was then asked her diagnosis:\nMy diagnosis was that [the child] had suffered from the sexual abuse that she disclosed to me and her family. And my feelings were that [the child] being a three[-]year[-]old child could not fantasize that these events occurred. She could not make them up. Children that young do not have the ability to fantasize or [OBJECTION OVERRULED] an act like that they have not experienced. It\u2019s not within their mental ability to do that. So based on what she told me, the consistency of what she told me, what she told the parents, what she told law enforcement was just all very striking, and that I felt like she was \u2014 that she did experience that abuse.\n\u201c [I]t is []\u25a0well-settled that testimony based on the witness\u2019s examination of the child witness and expert knowledge concerning the abuse of children in general is not objectionable because it supports the credibility of the witness or states an opinion that abuse has occurred.\u201d State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 89 (1997) (internal citations omitted). Here, the child described to Dr. Russo pain inside her vaginal area and described where they were sitting when the incident occurred. She also demonstrated for Dr. Russo using anatomical dolls, where she was touched. Therefore, when Dr. Russo conducted her examination of the vaginal area of the child, the results were consistent with what she had been told. In other words, one would not necessarily expect to see scarring or trauma or other physical evidence of abuse based on the history given.\nThe majority discusses many cases including State v. Bush, 164 N.C. App. 254, 595 S.E.2d 715 (2004), State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004) and State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002) for the proposition that it is error to admit expert opinion testimony in child sexual assault cases where no physical evidence of abuse exists. To the extent that these cases stand for that proposition, such a conclusion is reasonably applicable only in sexual assault cases where one would expect to find physical evidence of abuse. Such cases might include forcible sexual assault or repeated sexual abuse. See, e.g., State v. Goforth, \u2014 N.C. App.-, -,-S.E.2d-,-(June 7, 2005) (No. COA04-608) (where child medical expert testified \u201cif there are physical findings [in a child\u2019s examination], this is usually indicative of repeated abuse\u201d). The instant case is factually similar to many, many child sexual assault cases where the nature of the assault, a sexual touching, is such that one would not expect physical evidence of abuse. See, Id. Therefore, in those cases where the clinical evidence of sexual abuse is based on expert medical testimony that the acts of sexual abuse alleged are unlikely to leave physical evidence, that testimony is valid and states the basis for the expert\u2019s opinion. For these reasons, I would hold Dr. Russo\u2019s testimony to be permissible medical opinion from an expert in child abuse, and would find no error in its admission.\nNevertheless, even assuming arguendo the admission of this expert medical opinion testimony was erroneous, it did not arise to the level of plain error. As our Supreme court has stated time and again, plain error is \u201cerror \u2018so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u2019 \u201d State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citations omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). \u201cPlain error does not simply mean obvious or apparent error.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The plain error rule must be applied cautiously and only in exceptional cases where, \u201c \u2018after 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 \u2019 \u201d State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999) (citations omitted).\nThe majority states that \u201cDr. Russo\u2019s inadmissible opinion likely had an impact on the jury\u2019s finding ...\u201d and that \u201c[i]n the absence of overwhelming evidence of defendant\u2019s guilt, . . . the admission of Dr. Russo\u2019s diagnosis was plain error.\u201d I disagree as there is significant additional evidence in the record regarding the sexual abuse of this three year old child such that absent the testimony of Dr. Russo, the jury would nevertheless have reached a verdict of guilty. The jury heard the testimony of the child\u2019s father who testified in pertinent part:\nQ. During that time period while you were in the living room that evening with your children, did you observe anything unusual take place?\nA. Well, my little girl, she was messing... . She was messing with herself, like rubbing- \u2014 \u2022\nQ. Okay. And when you indicate that she was messing with herself and rubbing, what part of her body was she doing that to?\nA. Her private part.\nQ. Okay. At that point in time when you observed that, did you say anything to [the child]?\nA. I said \u201c[H], what are you doing?\u201d . . . She said, \u201cIt hurts[.]\u201d\nQ. Okay. Did she make any other comments at that time?\nA. She said that \u2014 that Pawpaw \u2014 she calls him Pawpaw. . . . \u201cPawpaw touched me down there\u201d... She said he touched her down there with his finger.\nDetective John Stephens of the Davie County Sheriffs Department reported to the home on the date of the incident and spoke to the three-year-old child. Detective Stephens told the jury that: \u201cShe was a real sweet young lady. She told me that her Pawpaw touched her \u2018gina\u2019 and put his finger in there and it hurt.\u201d He further testified the child got a doll to indicate what her grandfather did to her. \u201c[S]he put the doll on the table . . . [s]he opened the doll\u2019s legs and put her finger inside between the doll\u2019s legs at the vaginal area.\u201d\nThe mother of the child testified before the jury and stated the child said Pawpaw touched her and that it hurt, and that the child, using a doll, demonstrated where her grandpa touched her. The mother also testified the child\u2019s attitude and behavior had changed since the incident in that the child had more \u201cattitude\u201d and she did not want any men in the bathroom with her, even her twin brother. In addition, the mother testified about two conversations with her father; one in which he denied touching the child; and another in which he said \u201cI\u2019m sorry for what I\u2019ve done. I know what I\u2019ve done wrong and I\u2019m where I need to be[.]\u201d Given this strong testimonial evidence against defendant, it is not probable the jury would have reached a different verdict absent Dr. Russo\u2019s testimony.\nIn part II the majority holds that admission of evidence that defendant sexually abused his niece twenty-three years ago was in error and \u201cshould not be admitted during [defendant\u2019s] new trial[.]\u201d As stated infra, I would hold defendant is not entitled to a new trial based on the admission of Dr. Russo\u2019s testimony. Because of the strong evidence otherwise of defendant\u2019s guilt, I would hold the other crimes evidence involving defendant\u2019s niece to be harmless error.\nAs to part III of the majority opinion, I agree with the majority\u2019s conclusion that the admission of evidence of defendant\u2019s possession of pornographic magazines and women\u2019s underwear did not arise to the level of plain error.", "type": "concurring-in-part-and-dissenting-in-part", "author": "BRYANT, Judge" } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, for the State.", "Daniel Shatz for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEPHEN M. DELSANTO\nNo. COA04-876\n(Filed 2 August 2005)\n1. Evidence\u2014 expert opinion \u2014 child sex abuse \u2014 credibility\nThe trial court committed plain error in a first-degree sexual offense case by admitting the testimony of a doctor that she had diagnosed the minor victim as having been sexually abused by defendant, and defendant is entitled to a new trial, because: (1) the only evidence that defendant sexually abused the victim is the victim\u2019s own statements to the testifying witnesses; (2) there was no physical evidence, yet the doctor testified that this lack of physical evidence was absolutely consistent with the victim\u2019s account; (3) the doctor conclusively stated that defendant sexually assaulted the minor child when the doctor testified that she diagnosed the minor child as having been sexually abused by defendant; (4) the doctor\u2019s inadmissible opinion likely had an impact on the jury\u2019s finding of guilt; (5) admission of expert testimony on a victim\u2019s credibility prejudices defendant in the eyes of the jury when the minor child\u2019s credibility is the central issue in the case; (6) there was no other permissible expert testimony, there was no evidence that the victim exhibited behaviors that were consistent with having suffered from sexual assault, and the State did not present other overwhelming evidence of defendant\u2019s guilt; and (7) the only physical manifestation of injury suffered by the minor child in this case was pain, which is subjective and not independently verifiable.\n2. Evidence\u2014 prior crimes or bad acts \u2014 child sex abuse\nThe trial court erred in a first-degree sexual offense case by overruling defendant\u2019s objection and permitting a witness to testify that defendant had sexually abused her twenty-three years earlier, because: (1) evidence that a defendant engaged in previous sexual abuse is inadmissible when a significant lapse of time exists between the instances of alleged sexual abuse; (2) the lapse of time between the alleged instances of abuse merits against finding that defendant was engaged in an ongoing plan or scheme of sexual abuse; (3) unlike in State v. Jacob, 113 N.C. App. 605 (1994), the State offered no evidence that defendant did not have access to his preferred victim during the twenty-three year time span between the alleged instances of abuse, or that his plan was interrupted and then resumed twenty-three years later; and (4) although the State for the first time on appeal relies on Rule 404(b) to show identity and intent, this argument is not properly before the Court of Appeals.\n3. Evidence\u2014 prior crimes or bad acts \u2014 possession of pornographic magazines and women\u2019s underwear \u2014 impermissible character evidence\nAlthough the trial court did not commit plain error in a first-degree sexual offense case by allowing the State to elicit a witness\u2019s testimony that defendant possessed pornographic magazines and women\u2019s underwear, the admission of the testimony should not be presented at defendant\u2019s new trial (granted on other grounds) for the purpose of showing defendant\u2019s propensity to commit the crime, because: (1) the State presented no evidence that defendant\u2019s possession of pornographic magazines and women\u2019s underwear played any part in the alleged offenses; and (2) the evidence was not relevant to prove the charges against him and was merely impermissible character evidence.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAssignments of error that were not addressed in defendant\u2019s brief are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6).\nJudge Bryant concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 15 September 2003 by Judge Mark E. Klass in Superior Court, Davie County. Heard in the Court of Appeals 9 March 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, for the State.\nDaniel Shatz for defendant-appellant." }, "file_name": "0042-01", "first_page_order": 72, "last_page_order": 88 }