{
  "id": 8352844,
  "name": "STATE OF NORTH CAROLINA v. ERIC MARSHALL HAMMETT",
  "name_abbreviation": "State v. Hammett",
  "decision_date": "2006-02-07",
  "docket_number": "No. COA05-377",
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          "page": "465-66",
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        {
          "page": "789",
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          "page": "789",
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          "page": "655",
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          "page": "842",
          "parenthetical": "quoting State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988) (citations omitted)"
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        {
          "page": "378",
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          "page": "29",
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          "page": "5",
          "parenthetical": "citing State v. Vehaun, 34 N.C. App. 700, 705, 239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 846 (1978)"
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    "judges": [
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      "STATE OF NORTH CAROLINA v. ERIC MARSHALL HAMMETT"
    ],
    "opinions": [
      {
        "text": "LEVINSON, Judge.\nEric Marshall Hammett (defendant) appeals from a judgment entered 11 February 2004 consistent with jury verdicts finding him guilty of three counts of statutory sexual offense and seven counts of taking indecent liberties with a child. Because the admission of expert testimony in this case resulted in plain error, we must grant a new trial on all counts.\nThe State\u2019s evidence presented at trial tended to show the following:\nDefendant\u2019s daughter C.H. was born 10 August 1989. C.H. alleged that defendant committed various acts of sexual abuse against her in the spring of 2003. C.H. came to live with defendant during her seventh grade year, in December 2001. Prior to that time, C.H. lived with her mother and her mother\u2019s boyfriend, D.C. C.H. testified she did not like it when she had to go live with her father: \u201cI loved my mom too much. I don\u2019t like getting away from her.\u201d\nC.H. testified that D.C. engaged in various sexual acts with her from when she was five years of age until she was approximately ten and one half years of age. C.H. testified D.C. would lick her private area, and have her masturbate him. C.H. testified that D.C. never penetrated her vagina in any way.\nC.H. testified defendant committed various sexual acts on her while she lived with him in Cabarrus County between January and April 2003. C.H. stated that defendant watched pornographic videos in front of her and masturbated during the videos; that, at defendant\u2019s request, C.H. straddled defendant\u2019s lower waist while defendant lay in bed; that defendant measured her chest and \u201cprivate area\u201d with a measuring tape three or four times; that one time defendant asked her to \u201ckiss me like you love me\u201d and as he kissed her, he tried to put his tongue in her mouth; that defendant reached under her shirt and rubbed lotion on her breasts; that in the spring of 2003 defendant took two showers with C.H. and put his fingers inside her vagina both times; that, at defendant\u2019s request, C.H. washed defendant\u2019s genitals with her bare hands while taking a shower with him; and that, while C.H. was lying on a bed after taking a shower, defendant opened her legs, shaved the hair around her vaginal area, and put his tongue into her vagina. C.H. testified she related these events to a friend at school (hereafter \u201cthe friend\u201d), and was removed from defendant\u2019s home that same day.\nThe friend testified that C.H. had confided in her the sexual abuse C.H. was experiencing at home. The friend called her mother. The friend\u2019s mother then called the appropriate authorities.\nDr. Rosalina Conroy, a pediatrician, testified that she examined C.H. on 28 April 2003 to evaluate her for possible sexual abuse. Dr. Conroy performed a genital examination which included photographing C.H.\u2019s genital area. Dr. Conroy testified that the photographs revealed a \u201cnotch\u201d in C.H.\u2019s hymen and a defect in the posterior fourchette, an area at the bottom of the hymenal ring towards the anus. Dr. Conroy stated the types of injuries she observed were made from \u201cpenetrating vaginal trauma with a hard object.\u201d During her second day of testimony, Dr. Conroy testified that C.H.\u2019s statements, regarding having been abused by defendant, were consistent with those made by children who were telling the truth and that, even in the absence of physical findings, Dr. Conroy\u2019s diagnosis of sexual abuse would remain the same. This testimony is set forth in more detail below.\nConcord Police Department Detective Larissa Cook testified that defendant agreed to speak to her regarding the allegations of sexual abuse. On 8 May 2003, defendant told Detective Cook that C.H. had a hygiene problem and that he had showered with her naked and had used a wash cloth to wash C.H. \u201cfrom head to toe.\u201d\nDefendant testified. He admitted showering with C.H. on two occasions and washing her \u201cprivate areas.\u201d Defendant denied all the other material allegations C.H. made against him. He denied having fondled C.H.\u2019s breasts, trying to French kiss her, having her straddle him on a bed, measuring her, touching her private parts, and watching pornographic movies with her.\nThe jury returned verdicts of guilty on all counts. The trial court consolidated all offenses for judgment and sentenced defendant to an active prison term of 288-355 months imprisonment. From this judgment, defendant appeals.\nDefendant contends the trial court erred by admitting Dr. Conroy\u2019s expert opinion that, based on C.H.\u2019s statements alone, Dr. Conroy would have diagnosed her as having been sexually abused. Because defendant did not object to Dr. Conroy\u2019s testimony at trial, we review for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (\u201c[P]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\u201d) (internal quotation marks and citation omitted).\n\u201c \u2018Our appellate courts have consistently held that the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence.\u2019 \u201d State v. Figured, 116 N.C. App. 1, 7, 446 S.E.2d 838, 842 (1994) (quoting State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988) (citations omitted)). Furthermore, our Supreme Court\u2019s mandate in State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002), regarding the admissibility of expert testimony in child victim sexual abuse cases, is clear: \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 Id. at 266-67, 559 S.E.2d at 789 (citations omitted).\nThis Court has repeatedly found that the admission of expert testimony that a child victim has suffered sexual abuse, absent physical findings, is error. See State v. Delsanto, 172 N.C. App. 42, 55-56, 615 S.E.2d 870, 873 (2005) (absent physical indications of abuse, it was error to admit expert testimony that the victim \u201c \u2018suffered from the sexual abuse that she disclosed to [the doctor] and [victim\u2019s] family\u2019 \u201d); State v. Ewell, 168 N.C. App. 98,105-06, 606 S.E.2d 914, 919, disc. review denied, 359 N.C. 412, 612 S.E.2d 326 (2005) (error for the trial court to allow expert testimony that it was \u201c \u2018probable that [the child] was a victim of sexual abuse\u2019 \u201d when the testimony was \u201cnot based on any physical evidence or behaviors consistent with sexual abuse\u201d); State v. Couser, 163 N.C. App. 727, 729-31, 594 S.E.2d 420, 423 (2004) (error to admit expert testimony that the child was \u201cprobably sexually abused\u201d where the physical evidence was insufficient to support diagnosis of sexual abuse); State v. Bush, 164 N.C. App. 254, 259, 595 S.E.2d 715, 718 (2004) (error to admit doctor\u2019s testimony that \u201c \u2018[the victim] was sexually abused by [defendant]\u2019 \u201d absent physical evidence of abuse); State v. Grover, 142 N.C. App. 411, 418-19, 543 S.E.2d 179, 183 (2001) (error to admit expert testimony that the child had been sexually abused where the expert opinion was based solely on the child\u2019s statements); State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463, 465-66 (1987) (physical evidence that hymen was not intact, where \u201cthe condition of the hymen alone would not support a diagnosis of sexual abuse,\u201d was insufficient to support a diagnosis of sexual abuse of child victim).\nOur analysis of the instant case is governed by this Court\u2019s three recent holdings in Delsanto, Ewell, and Bush noted above.\nIn Delsanto, a medical examination of the child victim revealed no physical evidence of sexual abuse and the State\u2019s expert medical witness, Dr. Kathleen Russo, testified as follows:\nMy diagnosis was that [the child victim] had suffered from the sexual abuse that she disclosed to me and her family.... 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.\nDelsanto, 172 N.C. App. at 47, 615 S.E.2d at 873-74. As this Court noted, \u201cDr. Russo conclusively stated that defendant sexually assaulted [the victim] when she testified that she diagnosed [the victim] as having been sexually abused by defendant^]\u201d Id. at 47, 615 S.E.2d at 873. Dr. Russo\u2019s testimony \u201camounted to an impermissible opinion of [the victim\u2019s] credibility.\u201d Id. at 47, 615 S.E.2d at 874.\nIn Ewell, the doctor testified that, \u201cbased upon the physical exam \u2018[t]here\u2019s no way ... I could prove or disprove that she\u2019s had sexual intercourse or been sexually active.\u2019 \u201d Ewell, 168 N.C. App. at 104, 606 S.E.2d at 919. In formulating her diagnosis, \u201c[the doctor] acknowledged that \u2018I\u2019m relying on the history [the child gave] being true].]\u2019 \u201d Id. at 105, 606 S.E.2d at 919. This Court held the admission of the doctor\u2019s testimony regarding her diagnosis of sexual abuse was error. Id.\nIn Bush, the State\u2019s expert was again Dr. Russo. Dr. Russo testified:\nI was impressed by [the victim\u2019s] sensory recollection . . . 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 Mr. Bush\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.\nBush, 164 N.C. App. at 259, 595 S.E.2d at 718. In Bush, this Court reasoned, \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.\nIn the instant case, Dr. Conroy gave two opinions regarding whether the victim had been sexually abused. On the first day of her testimony, Dr. Conroy gave an opinion that C.H. was sexually abused. This opinion was based upon some physical findings discussed in greater detail, infra, and has not been challenged on appeal. On the second day of her testimony, Dr. Conroy testified that, even absent physical findings, her diagnosis of sexual abuse would have been the same:\nWhat we really based the bulk of our conclusion on is the child\u2019s history. And we also \u2014 we look for different things in the history. We look especially for consistency because when kids are not telling the truth, they don\u2019t have details to it, they don\u2019t have consistency to it. . . . And in this case, in [C.H.\u2019s] case, her story was extremely consistent and she gave details, the details \u2014 especially the detail that she gave about the pain and how sharp it was, that it went to her back. That\u2019s not the kind of history that we get if something has not really happened. So that\u2019s what we based our conclusion [on]. And even if there were absolutely no physical findings, mv conclusion would still be the same, based on her history that her consistent, history iand] plenty of details in that history is that she has been sexually abused.\nOn appeal, defendant objects to the statements Dr. Conroy made during her second day of testimony, particularly the underlined portion above. Our review of the transcript reveals that factfinders could reasonably infer that Dr. Conroy\u2019s testimony on the second day, noted immediately above, concerned the allegations for which defendant stood accused and not the abuse suffered by C.H. in earlier years. We conclude this testimony is functionally indistinguishable from that held to be error in Delsanto, Ewell, and Bush. Dr. Conroy provided an expert opinion of sexual abuse premised on an absence of physical findings, and essentially vouched for the credibility of C.H. Therefore, the admission of this testimony was error.\nWe next review the admission of Dr. Conroy\u2019s testimony under the plain error doctrine to determine whether defendant must be afforded a new trial. Plain error is error \u201cso 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.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted). \u201cOur Supreme Court has extended plain error review to issues concerning admissibility of evidence.\u201d Ewell, 168 N.C. App. at 102, 606 S.E.2d at 917 (citing State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983)). \u201cWe examine the entire record to decide whether the error \u2018had a probable impact on the jury\u2019s finding of guilt.\u2019 \u201d Id. (quoting Odom, 307 N.C. at 661, 300 S.E.2d at 379). \u201cFor a jury trial to be fair it is fundamental that the credibility of witnesses must be determined by them, unaided by anyone, including the judge.\u201d State v. Holloway, 82 N.C. App. 586, 587, 347 S.E.2d 72, 73-74 (1986). \u201c[A]n expert\u2019s opinion to the effect that a witness is credible, believable, or truthful... is plain error when the State\u2019s case depends largely on the prosecuting witness\u2019s credibility.!\u2019 State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496 (1995) (citations omitted).\nThe State argues that even if the admission of Dr. Conroy\u2019s second day of testimony was error, the error did not amount to plain error because of the overwhelming evidence of defendant\u2019s guilt. See Stancil, 355 N.C. at 267, 559 S.E.2d at 789 (despite the error in the admission of the expert opinion regarding a diagnosis of sexual abuse absent physical evidence of such abuse, no plain error where there was other overwhelming evidence of defendant\u2019s guilt).\nWe next determine whether there was overwhelming evidence of defendant\u2019s guilt independent of Dr. Conroy\u2019s impermissible expert opinion to support the convictions. This is a critical inquiry because, as our case law informs, there is no plain error where the error did not have a probable impact on the outcome of the trial.\nHere, the State\u2019s case was almost entirely based on C.H.\u2019s out-of-court statements and in-court testimony; Dr. Conroy\u2019s testimony concerning the physical findings and expert opinion of sexual abuse that was elicited on the first day of her testimony; and the testimony of the friend and Detective Cook which largely corroborated C.H.\u2019s allegations. Defendant denied all the material allegations, though he acknowledged taking showers with C.H. on two occasions for purposes unrelated to sexual gratification or arousal. From her examination of C.H., Dr. Conroy noted some physical evidence consistent with C.H.\u2019s statements of having been sexually abused by defendant. Dr. Conroy\u2019s pertinent testimony, during her first day of testimony, follows:\nQ: Doctor Conroy, the nurse testified that C.H. told her about another incident involving another person that involved a licking and her touching that other person. In your opinion, are those incidents, could they cause the injuries that you just talked about?\nA: No, they cannot. The types of injuries that I saw were made from penetrating vaginal trauma with a hard object.\nQ: Hard object, would that be consistent with a finger?\nA: No. Well, the hymenal ring could be, but the posterior fourchette it would have to be a larger object.\nQ: Now, what about more than one finger?\nA: Again, the hymenal ring could \u2014 it could definitely be explained by that. The posterior fourchette, given how \u2014 given the depth of that scar, it\u2019s possible.\nQ: But with the oral act?\nA: No, absolutely not.\nQ: And after discussing her history and examining her, did you reach a medical conclusion in this case?\nA: Yes, I did.\nQ: And what was that conclusion?\nA: I concluded that she had been repeatedly sexually abused.\nOn cross-examination, Dr. Conroy testified as follows:\nQ: A person on one occasion inserting their tongue into this female\u2019s vagina, in your professional opinion is that sufficient to cause this trauma that you see?\nA: Absolutely not.\nQ: A person on one occasion inserting his tongue into this person\u2019s vagina and on another occasion inserting a finger or fingers into this person\u2019s vagina \u2014 nothing else, just those two incidents \u2014 is that sufficient to cause this trauma that you saw here?\nA: No, this is repeated.\nQ: My next question, a person\u2019s tongue on one incident being inserted into this person\u2019s vagina together with a second separate incident where finger or fingers is inserted into this person\u2019s vagina combined with a second incident, meaning three incidents \u2014 tongue, finger or fingers, third incident being finger or fingers inserted in this person\u2019s vagina, nothing else just those three incidents, is that sufficient to cause this trauma that you\u2019re talking.about?\nA: No.\nOn re-direct examination, Dr. Conroy testified:\nQ: [I]s it possible that inserting fingers and licking \u2014 is it not possible, depending on the size of the fingers and how those fingers were used that they could have caused some of the injury that you saw?\nA: Yes, and they would have caused pain which would explain the notch at the six o\u2019clock position in the hymen.\nOn recross-examination, Dr. Conroy testified:\nQ: That is scarring consistent with many times over time?\nA: It\u2019s many times, right, over time, but I can\u2019t say over how long.\nDr. Conroy\u2019s testimony on the first day regarding whether the acts alleged against defendant could have caused the injuries she observed was contradictory. At first, Dr. Conroy testified that the digital penetration defendant was accused of could have caused the injuries she noted. Later, Dr. Conroy testified that the acts the defendant was accused of could not have caused the physical findings she observed. Upon further questioning, Dr. Conroy stated that defendant\u2019s alleged acts could have caused \u201csome of the injury\u201d she had observed. Dr. Conroy\u2019s opinion linking defendant to the crimes charged was equivocal at best. Furthermore, the one assertion Dr. Conroy consistently made was that the physical trauma she had observed had been caused by \u201crepeated\u201d penetration \u201cmany times . . . over time.\u201d Where the sexual assaults defendant was accused of consisted of cunnilingus and two instances of digital vaginal penetration, the testimony linking the physical findings to the accusations involving defendant was, in short, not strong evidence of defendant\u2019s guilt. Stated alternatively, the injuries could easily have been caused by someone other than defendant.\nIn this evidentiary context, where the physical findings revealed a tenuous connection to defendant, and C.H. and defendant gave conflicting accounts of factual matters central to the criminal charges, the credibility of the witnesses was particularly important. Without Dr. Conroy\u2019s inadmissible testimony, the jury would have been essentially left with C.H.\u2019s accusations, defendant\u2019s denial, and Dr. Conroy\u2019s expert opinion that sexual abuse occurred \u2014 an opinion that did little to connect C.H.\u2019s physical injuries to the conduct for which defendant stood accused. Under these circumstances, the jury\u2019s factual evaluation of whether defendant caused the injuries is of obvious importance. With Dr. Conroy\u2019s inadmissible testimony, the jury could more freely discount the uncertain cause or origin of C.H.\u2019s injuries and rely heavily, instead, on an opinion that C.H. was sexually abused from a witness accepted by the court as an expert in pediatric medicine \u2014 essentially an opinion that C.H. was sexually abused by defendant because C.H. was believable.\nThe dissent correctly observes that a victim\u2019s testimony, standing alone, is generally sufficient evidence to survive a motion for directed verdict. Here, however, in evaluating whether plain error occurred, we are concerned with whether there was overwhelming evidence of defendant\u2019s guilt independent of the improper testimony, not whether, in the absence of the improper opinion testimony, there was substantial evidence in the record to allow the offenses to be submitted to the jury. There is a likelihood that the outcome of the verdicts would have been different in the absence of Dr. Conroy\u2019s impermissible expert opinion because the case rested largely on the credibility of witnesses. Accord Hannon, supra. Moreover, we respectfully disagree with the dissent insofar as it appears to conclude that the inadmissible opinion by Dr. Conroy that C.H. was \u201csexually abused\u201d was necessarily limited to whether defendant penetrated C.H. We conclude, instead, that Dr. Conroy\u2019s inadmissible testimony, considered in context and in full, could have been, associated by the jury with the conduct underlying the indecent liberties charges, too. Thus, the likely prejudice to the outcome of the indecent liberties verdicts is as real as that linked to the statutory sexual offenses.\nThis case rested largely on the credibility of the witnesses because the evidence shows that the objective physical findings could have easily not been caused by defendant. That C.H. was likely \u201crepeatedly sexually abused\u201d bv someone was not seriously challenged at trial. Instead, it was whether the defendant abused C.H., and whether the alleged actions on his part could even cause C.H.\u2019s injuries. The transcript reveals that counsel for both the State and defendant recognized the importance of the factual question of the origin of the injuries, and thoroughly questioned Dr. Conroy concerning the same. \u201cThat [the] grossly improper testimony [of Dr. Conroy] unfairly affected defendant\u2019s trial seems obvious to us.\u201d Holloway, 82 N.C. App. at 587, 347 S.E.2d at 73.\nWe conclude that, in the absence of the inadmissible testimony, there is a reasonable probability the jury would have reached different results. Regrettably, our careful review of the record reveals the outcome of the trial was not reliable, and we therefore cannot sustain defendant\u2019s 24 year prison term.\nNew trial.\nJudge HUDSON concurs.\nJudge TYSON dissents with a separate opinion.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      },
      {
        "text": "TYSON, Judge,\ndissenting.\nThe majority\u2019s opinion grants defendant a new trial on all convictions and asserts the trial court committed plain error in allowing the admission of Dr. Conroy\u2019s testimony. The trial court\u2019s admission of Dr. Conroy\u2019s testimony did not constitute plain error and was not so prejudicial to award defendant a new trial. I respectfully dissent.\nI. Dr. Conroy\u2019s Expert Testimony\nThe majority\u2019s opinion holds this case is governed by this Court's prior precedents in State v. Delsanto, 172 N.C. App. 42, 615 S.E.2d 870 (2005), State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914 (2005), and State v. Bush, 164 N.C. App. 254, 595 S.E.2d 715 (2004). Their opinion misapplies and unduly enlarges and extends the holdings in Delsanto, Ewell, and Bush to award defendant a new trial on the facts before us.\nIn Delsanto, a medical examination of the child victim revealed no physical signs of sexual abuse. Delsanto at 55, 615 S.E.2d at 872. Nonetheless, the medical expert testified that she diagnosed the child as having been sexually abused by the defendant. Id. at 55-56, 615 S.E.2d at 872. Similarly, in Ewell the medical expert testified she diagnosed the victim as sexually abused even though she could not prove or disprove, by the results of the physical examination, whether the victim had engaged in sexual intercourse or had previously been sexually active. Ewell, 168 N.C. App. at 104, 606 S.E.2d at 919. The medical expert in Bush also testified that the child was sexually abused even though no physical evidence of sexual abuse was present. Bush, 164 N.C. App. at 258, 595 S.E.2d at 718. In each of these cases we found the trial court\u2019s admission of the expert\u2019s testimony and opinion that the victim was sexually abused to be plain error and awarded a new trial. These cases are easily distinguishable from the facts of this case.\nHere, substantial physical evidence of sexual abuse of the victim was presented. Dr. Conroy performed a physical examination of C.H. which included the use of a special camera to magnify abnormalities in C.H.\u2019s genital area. Dr. Conroy testified that the photographs taken during C.H.\u2019s examination revealed a \u201cnotch\u201d at the six o\u2019clock position of her hymen. The physical examination also revealed a scar on the posterior fourchette, that was \u201cirregular.\u201d Dr. Conroy testified that the types of injuries revealed from the genital examination \u201cwere made from penetrating vaginal trauma with a hard object.\u201d C.H. was thirteen years old at the time of these assaults and testified that she had not engaged in any penetrating vaginal contact before these assaults occurred.\nII. Expert Medical Testimony of Sexual Abuse\nThe rule regarding the admissibility of expert medical testimony in child sexual abuse cases is well-established. In State v. Standi, our Supreme Court stated, \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).\nAn 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.\nEwell, 168 N.C. App. at 103, 606 S.E.2d at 918 (quoting State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598) (emphasis in original). See also State v. Couser, 163 N.C. App. 727, 729-31, 594 S.E.2d 420, 423 (2004) (error to admit expert testimony that the child was \u201cprobably sexually abused\u201d where the physical evidence was insufficient to support a diagnosis of sexual abuse); State v. Grover, 142 N.C. App. 411, 418-19, 543 S.E.2d 179, 183-84 (2001) (Expert opinion testimony that the child had 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). \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 characteristics [consistent with] abused children.\u201d Grover, 142 N.C. App. at 419, 543 S.E.2d at 184 (citation and internal quotation marks omitted). Based upon the physical evidence presented, Dr. Conroy was permitted to state her opinion that C.H. had been sexually abused. Ewell, 168 N.C. App. at 103, 606 S.E.2d at 918. Substantial \u201cphysical evidence to support a diagnosis of sexual abuse\u201d was presented to provide a foundation to admit Dr. Conroy\u2019s opinion to which defendant failed to object. Id. Defendant\u2019s convictions should be sustained.\nIII. Plain Error Rule\nTo award a new trial for plain error, the trial court\u2019s error must be \u201cso 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.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). In the absence of Dr. Conroy\u2019s opinion testimony, it is not probable that the jury would have reached a different verdict. Other substantial evidence of defendant\u2019s guilt was presented in addition to Dr. Conroy\u2019s testimony. Defendant admitted at trial to taking showers with C.H. and washing her private areas on both occasions. Defendant stated he directed C.H. to get in the shower the second time because \u201cshe stunk,\u201d and defendant proceeded to get into the shower with her. The second shower incident occurred just two days after the first. Defendant\u2019s reason for entering nude into the shower with C.H. was that \u201cshe had bad personal hygiene.\u201d At trial, defendant denied instructing C.H. to wash him. The State impeached defendant\u2019s testimony with his prior statement in which he admitted to having C.H. \u201cwash his arms and legs.\u201d State v. Aguallo, 322 N.C. 818, 824, 370 S.E.2d 676, 679 (1989) (\u201cPrior statements by a defendant are a proper subject of inquiry by cross-examination.\u201d); N.C. Gen. Stat. \u00a7 8C-1, Rule 607 (2005). Defendant then stated he instructed C.H. to wash \u201cthe upper part of his chest.\u201d When asked to explain to the jury how C.H.\u2019s washing him helped her personal hygiene, defendant admitted, \u201cI have no explanation of that.\u201d\n. C.H.\u2019s classmate at school, E.O., also corroborated C.H.\u2019s accounts. C.H. told E.O. of the assaults and abuses the day after the second shower incident occurred. E.O. testified C.H. told her at school about the shower incidents and that defendant had made C.H. kiss him. C.H. also told E.O. that defendant tried to \u201cFrench Kiss\u201d her. E.O. testified that C.H. \u201cwas very uncomfortable and that she was sad and depressed, and it was hard for her to talk about it.\u201d\nSherry Cook (\u201cCook\u201d), a registered nurse at the Children\u2019s Advocacy Center at NorthEast Medical Center, also corroborated C.H.\u2019s testimony. Cook testified she interviewed C.H. on 28 April 2003. C.H. told Cook that defendant (1) masturbated on the bed in C.H.\u2019s presence while watching a pornographic video; (2) penetrated her vagina with his fingers in the shower; (3) instructed C.H. to wash his penis in the shower and \u201chold it like a hose\u201d; (4) shaved her \u201cbikini area\u201d with a razor; (5) inserted his tongue into her vagina \u201cfor a few seconds\u201d; (6) attempted to put his tongue into her mouth; and (7) had C.H. straddle him on the bed and \u201cmove up and down.\u201d This testimony was admitted without defendant\u2019s objection and was not contradicted.\nIV. Indecent Liberties with a Child Convictions\nPresuming the majority\u2019s award of a new trial for defendant is legally sound on the statutory sexual offense convictions, awarding defendant a new trial for his convictions of indecent liberties with a child, based on plain error in the admission of Dr. Conroy\u2019s expert opinion testimony is unwarranted.\nThe jury found defendant to be guilty of seven counts of taking indecent liberties with a child by: (1) having C.H. wash his private parts; (2) fondling C.H.\u2019s breasts; (3) actually or attempting to \u201cFrench Kiss\u201d C.H.; '(4) having C.H. straddle defendant on the bed and \u201cbounce up and down\u201d on him; (5) touching C.H.\u2019s private parts while \u201cmeasuring\u201d her; (6) touching C.H.\u2019s private parts while \u201cmeasuring\u201d her on a separate occasion; and, (7) masturbating in C.H.\u2019s presence while watching a pornographic movie.\nN.C. Gen. Stat. \u00a7 14-202.1(a) (2005) states:\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.\nHere, defendant was 31 years old and C.H. was 13 years old when the incidents occurred.\nActual touching or any physical contact with the minor child is not necessary for defendant to be found guilty under this statute. State v. Hicks, 79 N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986). See also State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574 (1981) (conviction upheld where defendant masturbated in the presence of the child); State v. Kistle, 59 N.C. App. 724, 297 S.E.2d 626 (1982), disc. rev. denied, 307 N.C. 471, 298 S.E.2d 694 (1983) (conviction upheld where defendant photographed the nude child in a sexually suggestive position). \u201cThe uncorroborated testimony of the victim is sufficient to convict under N.C.G.S. \u00a7 14-202.1 if the testimony establishes all of the elements of the offense.\u201d State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993) (citing State v. Vehaun, 34 N.C. App. 700, 705, 239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 846 (1978)).\nPhysical evidence of sexual abuse or any physical contact with the victim is wholly unnecessary to sustain a conviction for taking indecent liberties with a child. Id. The testimony of Dr. Conroy was not required to sustain defendant\u2019s convictions pursuant to N.C. Gen. Stat. \u00a7 14-202.1(a).\nC.H.\u2019s testimony, standing alone, was sufficient to support the convictions on the taking indecent liberties with a child charges. Her testimony was also corroborated by two other witnesses other than Dr. Conroy, and defendant admitted to acts and activities with C.H. sufficient to sustain his indecent liberties convictions. Defendant should not be granted a new trial on any of the taking indecent liberties with a child convictions even if the admission of Dr. Conroy\u2019s opinion testimony was plain error.\nV. Credibility and Weight of the Evidence\nThe majority\u2019s opinion erroneously determines the credibility of the witnesses and the weight to be afforded their testimonies to award a new trial. This role is reserved to the jury, and not to an appellate court. The majority\u2019s opinion states: (1) \u201cthe testimony linking the physical findings to the accusations involving defendant was, in short, not strong evidence of defendant\u2019s guilt\u201d; (2) \u201cthe injuries could have easily have been caused by someone other than defendant\u201d; (3) \u201c[Dr. Conroy\u2019s opinion] did little to connect C.H.\u2019s physical injuries to the conduct for which defendant stood accused\u201d; (4) \u201cthe evidence shows that the objective physical findings could have easily not been caused by defendant\u201d. These issues are all questions of fact that were properly determined by the jury. It is not the province of this Court to substitute its judgment for the verdict of the triers of fact. Mattox v. Huneycutt, 3 N.C. App. 63, 65, 164 S.E.2d 28, 29 (1968) (\u201cThis Court will not substitute its judgment for that of the triers of the facts.\u201d).\nVI. Conclusion\nSubstantial evidence was presented that C.H.\u2019s genital organs exhibited physical signs of sexual abuse. In accord with well-established precedents, it was not error, and certainly not plain error, for the trial court to admit Dr. Conroy\u2019s opinion that C.H. had been sexually abused after the State laid a proper foundation for her testimony.\nEven if Dr. Conroy\u2019s testimony rose to plain error on the statutory sexual offenses, defendant\u2019s convictions for taking indecent liberties with a child do not require any element of physical abuse or contact, and should be sustained on C.H.\u2019s testimony and defendant\u2019s admissions alone. Ewell, 168 N.C. App. at 103, 606 S.E.2d at 918. I vote to hold that no error, plain or otherwise, occurred during defendant\u2019s trial. I respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge,"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Kelly L. Sandling, for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ERIC MARSHALL HAMMETT\nNo. COA05-377\n(Filed 7 February 2006)\nEvidence\u2014 expert testimony \u2014 victim sexually abused \u2014 plain error\nThe trial court committed plain error in a multiple statutory sexual offense and multiple taking indecent liberties case by admitting expert testimony that based on the victim\u2019s statements alone the expert would have diagnosed the victim as having been sexually abused, and defendant is entitled to a new trial, because: (1) the Court of Appeals has repeatedly held that the admission of expert testimony that a child victim has suffered sexual abuse absent physical findings is error; (2) the injuries could have been caused by someone other than defendant; (3) in this evidentiary context where the physical findings revealed a tenuous connection to defendant, and defendant and the victim gave conflicting accounts of factual matters central to the criminal charges, the credibility of the witnesses was particularly important; (4) although a victim\u2019s testimony standing alone is generally sufficient to survive a motion for directed verdict, in the instant case where plain error analysis is concerned, the concern is whether there was overwhelming evidence of defendant\u2019s guilt independent of the improper testimony instead of whether there was substantial evidence in the record to allow the offenses to be submitted to the jury in the absence of the improper opinion testimony; (5) there is a likelihood that the outcome of the verdicts would have been different in the absence of the expert\u2019s impermissible expert opinion since the case rested largely on the credibility of witnesses; and (6) the expert\u2019s inadmissible testimony, considered in context and in full, could also have been associated by the jury with the conduct underlying the indecent liberties charges.\nJudge Tyson dissenting.\nAppeal by defendant from judgment entered 11 February 2004 by Judge Steve A. Balog in Cabarrus County Superior Court. Heard in the Court of Appeals 17 November 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Kelly L. Sandling, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant."
  },
  "file_name": "0597-01",
  "first_page_order": 631,
  "last_page_order": 646
}