{ "id": 4168103, "name": "STATE OF NORTH CAROLINA v. JOHN THOMAS WEBB, Defendant", "name_abbreviation": "State v. Webb", "decision_date": "2009-06-16", "docket_number": "No. COA08-806", "first_page": "619", "last_page": "623", "citations": [ { "type": "official", "cite": "197 N.C. App. 619" } ], "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": "637 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637251 ], "year": 2006, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0292-01" ] }, { "cite": "424 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "451", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524737 ], "year": 1993, "pin_cites": [ { "page": "509-10", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0506-01" ] }, { "cite": "439 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "813" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523857 ], "year": 1994, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0605-01" ] }, { "cite": "369 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "824" } ], "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": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "485 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "90" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710305 ], "year": 1997, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0312-01" ] }, { "cite": "543 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441531 ], "year": 2001, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "456 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "866", "parenthetical": "applying standard set out by Supreme Court for such material that new trial is required where disclosure of sealed materials \"probably would have changed the outcome of [defendant's] trial\"" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920020 ], "year": 1995, "pin_cites": [ { "page": "593", "parenthetical": "applying standard set out by Supreme Court for such material that new trial is required where disclosure of sealed materials \"probably would have changed the outcome of [defendant's] trial\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0589-01" ] }, { "cite": "608 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "785", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469249 ], "year": 2005, "pin_cites": [ { "page": "280", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0263-01" ] }, { "cite": "180 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8243176 ], "year": 2006, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0462-01" ] }, { "cite": "347 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "73" }, { "page": "73-74" }, { "page": "73" }, { "page": "73" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359441 ], "year": 1986, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0586-01" ] }, { "cite": "455 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "496", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918990 ], "year": 1995, "pin_cites": [ { "page": "451", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0448-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 597, "char_count": 10739, "ocr_confidence": 0.728, "pagerank": { "raw": 5.2741391607371345e-08, "percentile": 0.3308434198287236 }, "sha256": "8b13c118767a57c4af879e0a64d57836731e9779637127d63790d5b6fce6dbce", "simhash": "1:4f4bd512741b3cee", "word_count": 1762 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN THOMAS WEBB, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nJohn Thomas Webb (defendant) was convicted of one count of taking indecent liberties with a minor \u2014 specifically, his daughter \u2014 pursuant to N.C. Gen. Stat. \u00a7 14-202.1 and was sentenced to twenty to twenty-four months\u2019 imprisonment. As is so often true with cases of sexual abuse, the only person able to testify directly to the events of the abuse was the victim herself.\nI.\nOne of the arguments defendant makes to this Court is that the trial court erred in overruling his objection to certain expert witness testimony, an error which he argues warrants a new trial. We agree.\nDefendant\u2019s daughter was referred by her pediatrician to a child psychologist, Dr. Fred List, after exhibiting anger problems. At trial, on direct examination, Dr. List was asked: \u201cIn your expert opinion, does [the victim] fit the profile of a child who has been exposed to trauma and sexual abuse?\u201d Defense counsel objected; the trial court overruled the objection and instructed Dr. List to answer. In answer, Dr. List testified:\nIn my opinion, and in the time that I spent with her, and the manner in which she reported and described things, and her emotional responses, all suggested to me that yes, she had been exposed to trauma. And the manner of her description gave me no reason to doubt that there \u2014 make sure I phrase it \u2014 I believe that yes, she had been exposed to sexual abuse.\nThis Court has expressly held that such testimony constitutes error. As we explained in State v. Hannon, \u201cIt is fundamental to a fair trial that the credibility of the witnesses be determined by the jury. . . . [T]he admission of such an opinion is plain error when the State\u2019s case depends largely on the prosecuting witness\u2019s credibility.\u201d 118 N.C. App. 448, 451, 455 S.E.2d 494, 496 (1995) (citations omitted).\nA very similar situation occurred in the trial of Donald Gene Holloway, as described by this Court in State v. Holloway; there, \u201ctwo witnesses for the State, a pediatrician and a child psychologist, testified that in their opinion the child had testified truthfully.\" 82 N.C. App. 586, 587, 347 S.E.2d 72, 73 (1986). This Court noted:\nFor a jury trial to be fair it is fundamental that the credibility of witnesses must be determined by them, \u00fanaided by anyone, including the judge. Yet, though the State\u2019s case depended almost entirely upon the child\u2019s credibility as a witness, her credibility in the eyes of the jury was inevitably increased, we believe, by these two learned and prestigious professionals declaring that her testimony was true.\nId. at 587-88, 347 S.E.2d at 73-74. The Court noted that \u201c[t]he evidence did not meet the requirements for expert testimony as it concerned the credibility of a witness, . . . rather than some fact involving \u2018scientific, technical or other specialized knowledge.\u2019 \u201d Id. at 587, 347 S.E.2d at 73 (quoting N.C. Gen. Stat. \u00a7 8C-1, Rule 702). The Court concluded that this testimony violated Rules 405(a) and 608 of the North Carolina Rules of Evidence and, as such, a new trial was required. Id.; N.C. Gen. Stat. \u00a7 8C-1, Rules 405(a), 608 (2007).\nThe case at hand presents a virtually identical situation: the victim testified as to the alleged acts, and an expert witness commented on her truthfulness. Thus, Dr. List\u2019s commentary on the truthfulness of the victim was error, and its admission over objection requires a new trial.\nAs was true in Holloway, \u201c[o]ur decision does not require an extended statement of facts or even a recital of the melancholy and sordid details of the charge involved.\u201d 87 N.C. App. at 587, 347 S.E.2d at 73.\nII.\nAlthough, as already stated, this Court orders a new trial based on the above error by the trial court, three of defendant\u2019s other assignments of error bear mention by this Court as they will affect the conduct of that new trial.\nA.\nFirst, defendant argues that the trial court erred in denying him the opportunity .to examine certain sealed documents from the Department of Social Services investigation that may have contained exculpatory evidence. We agree.\nOur standard of review on this point is de novo. State v. Scott, 180 N.C. App. 462, 463, 637 S.E.2d 292, 293 (2006).\nOn appeal, the appellate court is required to examine the sealed records to determine whether they contain information that is favorable and material to an accused\u2019s guilt or punishment. \u201cFavorable\u201d evidence includes evidence which tends to exculpate the accused, as well as any evidence adversely affecting the credibility of the government\u2019s witnesses. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\nState v. Thaggard, 168 N.C. App. 263, 280, 608 S.E.2d 774, 785 (2005) (quotations and citations omitted).\nHaving reviewed the sealed materials, we find that the trial court\u2019s failure to disclose these materials to defendant was error. The sealed records contain potentially exculpatory evidence; at the very least, they contain information that might cast doubt on the veracity of one or more State witnesses, including the victim and the victim\u2019s mother. The State is obligated by statute to turn over such evidence, and it was error for the trial court to seal the evidence without allowing defendant to inspect it in camera. See State v. Kelly, 118 N.C. App. 589, 593, 456 S.E.2d 861, 866 (1995) (applying standard set out by Supreme Court for such material that new trial is required where disclosure of sealed materials \u201cprobably would have changed the outcome of [defendant\u2019s] trial\u201d).\nB.\nNext, defendant argues that the trial court erred in allowing the testimony of a Department of Social Services worker, William Bullock, to testify as to whether the claim against defendant was substantiated. As explained in section I of this opinion, this type of testimony \u2014 that is, testimony by an expert as to the veracity of the victim\u2019s testimony \u2014 should be excluded. See, e.g., State v. Grover, 142 N.C. App. 411, 413, 543 S.E.2d 179, 181 (2001) (\u201cW]here \u2018experts found no clinical evidence that would support a diagnosis of sexual abuse, their opinions that sexual abuse had occurred merely attested to the truthfulness of the child witness,\u2019 and were inadmissible.\u201d (quoting State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d 88, 90 (1997)). As such, it was error for the trial court to admit the testimony.\nC.\nFinally, defendant argues that the trial court erred in allowing the testimony of two witnesses who alleged that defendant had abused them twenty-one and thirty-one years prior, respectively. We agree.\n\u201cThe use of evidence as permitted under Rule 404(b) is guided by two constraints: similarity and temporal proximity.\u201d State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). \u201c[T]he passage of time between the commission of the two acts slowly erodes the commonality between them.\u201d State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 824 (1988). While it is true that \u201cNorth Carolina courts have been consistently liberal in admitting evidence of similar sex offenses in trials on sexual crime charges[,]\u201d State v. Jacob, 113 N.C. App. 605, 608, 439 S.E.2d 812, 813 (1994), when two or three decades have passed between the incidents, certainly the Court must require more similarity between the acts than what was provided herein \u2014 namely, that the victims were young girls in defendant\u2019s care, the incidents happened in his home, and he told the girls not to report his behavior. While \u201cthe similarities between the two incidents need not be unique and bizarre[,] . . . the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts.\u201d State v. Sneeden, 108 N.C. App. 506, 509-10, 424 S.E.2d 449, 451 (1993) (quotations and citations omitted). Such is not the case here. Admission of this testimony was, therefore, error.\nIII.\nFor the foregoing reasons, we order a new trial.\nNew trial.\nJudges CALABRIA and STROUD concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Melrose, Seago & Lay, P.A., by Nathan J. Earwood, for the defendant.", "Attorney General Roy Cooper, by Assistant Attorney General Angenette R. Stephenson, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN THOMAS WEBB, Defendant\nNo. COA08-806\n(Filed 16 June 2009)\n1. Evidence\u2014 expert testimony \u2014 truthfulness of child victim\nThe trial court erred in a taking indecent liberties with a minor case by overruling defendant\u2019s objection to expert testimony regarding the truthfulness of the child victim, and the case is remanded for a new trial.\n2. Discovery\u2014 sealed documents \u2014 in camera review\nA de novo review revealed the trial court erred in a taking indecent liberties with a minor case by denying defendant the opportunity to examine certain sealed documents from the Department of Social Services investigation that may have contained exculpatory evidence because the Court of Appeals reviewed the sealed documents, determined they contained potentially exculpatory evidence, and at the very least, they contained information that might cast doubt on the veracity of one or more State witnesses including the victim and the victim\u2019s mother.\n3. Evidence\u2014 expert testimony \u2014 veracity of victim\u2019s testimony\nThe trial court erred in a taking indecent liberties with a minor case by allowing the testimony of a Department of Social Services worker concerning whether the claim against defendant was substantiated because expert testimony as to the veracity of the victim\u2019s testimony should be excluded.\n4. Evidence\u2014 prior crimes or bad acts \u2014 sexual abuse two and three decades ago\nThe trial court erred in a taking indecent liberties with a minor case by allowing the testimony of two witnesses who alleged that defendant had abused them twenty-one and thirty-one years prior respectively because: (1) although North Carolina courts have been consistently liberal in admitting evidence of similar sex offenses in trials on sexual crime charges, when two or three decades have passed between the incidents, courts must require more similarity between the acts than that the victims were young girls in defendant\u2019s care, the incidents happened in his home, and he told the girls not to report his behavior; and (2) while the similarities between the incidents need not be unique and bizarre, the similarity must tend to support a reasonable inference that the same person committed both the earlier and later acts.\nAppeal by defendant from judgment entered 15 November 2007 by Judge Laura J. Bridges in Macon County Superior Court. Heard in the Court of Appeals 14 January 2009.\nMelrose, Seago & Lay, P.A., by Nathan J. Earwood, for the defendant.\nAttorney General Roy Cooper, by Assistant Attorney General Angenette R. Stephenson, for the State." }, "file_name": "0619-01", "first_page_order": 649, "last_page_order": 653 }