{ "id": 4177958, "name": "STATE OF NORTH CAROLINA v. THOMAS WAYNE LIVENGOOD", "name_abbreviation": "State v. Livengood", "decision_date": "2010-09-07", "docket_number": "No. COA09-1414", "first_page": "746", "last_page": "751", "citations": [ { "type": "official", "cite": "206 N.C. App. 746" } ], "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": "628 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635625 ], "year": 2006, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0776-01" ] }, { "cite": "666 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641935 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "797" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0795-01" ] }, { "cite": "335 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "178" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523137 ], "year": 1985, "pin_cites": [ { "page": "431-32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0429-01" ] }, { "cite": "200 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. 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App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526964 ], "year": 1983, "pin_cites": [ { "page": "390-91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0390-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "682 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "757" }, { "page": "757" } ], "opinion_index": 0 }, { "cite": "177 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300872 ], "year": 2006, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0017-01" ] }, { "cite": "193 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161583 ], "year": 2008, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0179-01" ] } ], "analysis": { "cardinality": 537, "char_count": 11829, "ocr_confidence": 0.756, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32295319147950324 }, "sha256": "860df3e70a8de51312005285bb0505de2327bb706062e048fdac619d0ea7e9e5", "simhash": "1:c3bf24ea671e0ecf", "word_count": 1921 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. THOMAS WAYNE LIVENGOOD" ], "opinions": [ { "text": "STEELMAN, Judge.\nThe trial court did not err in overruling defendant\u2019s objection to a witness\u2019 answer to a question asked by defense counsel during cross-examination. Defendant can show no prejudice resulting from his trial counsel\u2019s failure to object to questions asked by the State, to certain questions asked by defense counsel, and the failure of defense counsel to object to the trial court\u2019s discretionary ruling that denied the jury\u2019s request for a transcript of certain testimony during its deliberations.\nI. Factual and Procedural Background\nDefendant was indicted for three counts of incest with a stepchild, three counts of first degree statutory rape of a child less than 13 years of age, and two counts of first degree statutory sexual offense with a child less than 13 years of age. Each of these charges was based upon defendant\u2019s conduct with D, his stepdaughter. At the conclusion of the State\u2019s evidence, the trial court dismissed two counts of incest, two counts of first degree statutory rape, and one count of first degree statutory sexual offense. The jury found the defendant guilty of one count of first degree statutory sexual offense. As to the remaining two charges, the jury was deadlocked, and the trial court declared a mistrial. Defendant was sentenced to a minimum of 336 months and a maximum of 413 months from the presumptive range of sentences. Defendant appeals.\nII. Overruling Objection Claim\nIn his first argument, defendant argues the trial court erred in overruling his objection to the answer of Dr. Russo to a question asked by defense counsel during cross-examination. We disagree.\nA. Standard of Review\nOn appeal, we review the trial court\u2019s evidentiary rulings for abuse of discretion. State v. Cook, 193 N.C. App. 179, 181, 666 S.E.2d 795, 797 (2008). An abuse of discretion is a ruling \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d Id. (quoting State v. Hagans, 177 N.C. App. 17, 23, 628 S.E.2d 776, 781 (2006)).\nB. Dr. Russo\u2019s Testimony\nDr. Kathleen Russo testified at trial as an expert witness for the State in the field of pediatric medicine specializing in the diagnosis and treatment of child sex abuse. On direct examination, Dr. Russo testified that she interviewed D. The physical examination of D revealed no signs of trauma to D\u2019s hymen. On cross-examination, Dr. Russo opined, without objection, that her physical findings could be consistent with rape or with no rape. Upon recross-examination, defense counsel attempted to get Dr. Russo to agree with the portion of the above-recited testimony that was favorable to defendant:\n[Defense counsel]: And the medical aspects of this case physically are that there are no showings of any rape; correct?\nA: There\u2019s no physical findings which do not rule out her disclosure, sir.\n[Defense counsel]: I\u2019m going to object to that final statement, Your Honor.\n[Trial Court]: Overruled.\nDefendant argues that Dr. Russo\u2019s answer constituted an impermissible comment on the credibility of D, in violation of this Court\u2019s holding in State v. Horton, \u2014 N.C. App. \u2014, 682 S.E.2d 754, 757 (2009). We hold that the trial court did not abuse its discretion in overruling defendant\u2019s objection. Dr. Russo\u2019s response was consistent with her prior testimony that her physical findings were consistent with rape or no rape, and was not a comment on D\u2019s credibility. The fact that the witness did not give defendant\u2019s counsel the answer desired, emphasizing the portion of her testimony that was favorable to defendant, did not constitute a basis for defendant\u2019s objection.\nThis argument is without merit.\nIII. Ineffective Assistance of Counsel Claim\nIn his second argument, defendant contends that the performance of his trial attorney was so deficient as to violate the guarantee of effective assistance of counsel contained in the Sixth Amendment of the United States Constitution and in Article I, Section 23 of the North Carolina Constitution. Defendant argues that his trial counsel was ineffective in (1) failing to object to portions of Dr. Russo\u2019s testimony which defendant contends were a comment on D\u2019s credibility; (2) asking certain questions of Dr. Russo; and (3) failing to object to the trial court\u2019s denial of the jury\u2019s request for the trial testimony of D and Dr. Russo. We disagree.\nA. Standard of Review\nA defendant claiming ineffective assistance of counsel must demonstrate, based on the totality of the circumstances: (a) his trial counsel made such errors that he was not functioning as the counsel guaranteed in the United States and North Carolina Constitutions; and (b) the deficient performance prejudiced the defense so that defendant did not receive a fair trial. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985); State v. Miller, 64 N.C. App. 390, 390-91, 307 S.E.2d 439, 439 (1983), cert. denied, 311 N.C. 308, 317 S.E.2d 906 (1984); see also Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). Defendant\u2019s burden is heavy: appellate courts are highly deferential to the choices counsel makes at trial because the tactics of effective lawyers vary widely. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694.\nB. Analysis\n1. Testimony of Dr. Russo\nDefendant has extracted small snippets of Dr. Russo\u2019s testimony out of context and strung them together to argue that Dr. Russo was making comments on D\u2019s truthfulness. Defendant contends that trial counsel was ineffective in: (a) failing to object to Dr. Russo\u2019s testimony that D was \u201cvery cooperative\u201d during her interview with Dr. Russo; (b) failing to object to Dr. Russo\u2019s professional \u201cdiagnosis . . . that [D] suffered a traumatic episode and . . . needed mental health counseling to help her understand what happened to her;\u201d (c) failing to object to Dr. Russo\u2019s statement that \u201c[D] gave [Dr. Russo] no reason to think\u201d that D transferred her sexual abuse allegations onto defendant; and (d) asking Dr. Russo to affirm her statement that, according to D\u2019s statements at her interview with Dr. Russo, D \u201cwas the victim ... of sexual abuse.\u201d Defendant contends that this testimony had the effect of an expert witness vouching for the credibility of D, which is not permitted under State v. Horton, 200 N.C. App. 74, 77-78, 682 S.E.2d 754, 757 (2009). .\na. \u201c[PI was very cooperative\u201d\nThis statement was made as part of Dr. Russo\u2019s direct testimony, where she described the procedures used at the commencement of her interview of D, a young child. The statement described D\u2019s attitude in the interview; that she was not reticent. In the context of this portion of Dr. Russo\u2019s testimony, it was not a comment on D\u2019s truthfulness. This evidence was relevant, properly admitted, and would have withstood an objection by defendant\u2019s counsel. Defendant can show no prejudice arising from this action by his trial counsel.\nb.\u201c[D1 suffered a traumatic episode\u201d\nOn cross-examination, defense counsel asked Dr. Russo whether she had written any prescriptions for D following the examination. Dr. Russo stated that she made a psychological referral. On redirect, the prosecutor confirmed this testimony, and asked Dr. Russo about her diagnosis upon which the referral was based. Dr. Russo responded that D had suffered a traumatic episode and needed mental health counseling. Dr. Russo did not state the source of the traumatic episode or make any comment on D\u2019s truthfulness. This evidence was relevant, properly admitted, and would have withstood an objection by defendant\u2019s counsel. Defendant can show no prejudice arising from this action by his trial counsel.\nc.No reason to think sexual abuse transferred to defendant\nDefense counsel examined Dr. Russo concerning D\u2019s fear of her grandmother\u2019s boyfriend, and whether her fear of that person was transferred to defendant by D. Dr. Russo stated that she did not believe so. Defense counsel then asked Dr. Russo the basis of that belief. Dr. Russo stated: \u201cShe gave me no reason to think that in my interview.\u201d This testimony was not a comment on D\u2019s truthfulness, but simply a statement that there was nothing in the interview that would have given credence to defendant\u2019s transference theory. We cannot say that the raising of the transference theory, and its rejection by Dr. Russo, was prejudicial to defendant.\nd.\u201c[D1 was the victim of sexual abuse\u201d based on \u201cwhat [D1 said\u201d\nDefendant next points to the following exchange that took place during defense counsel\u2019s recross-examination of Dr. Russo:\nQ: When you say you believe that [D] was the victim, I think, of sexual abuse \u2014 is that what you said?\nA: Yes, it is, sir.\nQ: You\u2019re just saying what she said; right?\nA: Correct.\nThe import of this exchange was not that Dr. Russo was giving her own opinion that D was the victim of sexual abuse, but that she was merely reiterating what D told her. We cannot say that the above exchange was prejudicial to defendant.\n2. Jury\u2019s Transcript Request\nThe decision by a trial court to not provide trial testimony to the jury will be upheld absent an abuse of discretion. State v. Green, 77 N.C. App. 429, 431-32, 335 S.E.2d 176, 178 (1985). We review this issue to determine whether the trial court exercised its discretion in declining to provide the jury with the trial testimony of D and Dr. Russo.\nIn Green, this Court held that the trial court did not abuse its discretion where it denied the jury\u2019s request for trial testimony and defendant did not object, because the trial judge recognized the decision to have a transcript prepared was discretionary. Id. In the case at hand, Judge Doughton denied the jury\u2019s request for a transcript without an objection from defense counsel, ruling that \u201cin my discretion . . . I\u2019m going to tell [the jury] that it\u2019s their duty to recall and remember the testimony that was presented.\u201d (emphasis added).\nWe hold that the trial court did not err in denying the jury\u2019s request for a transcript because Judge Doughton denied the request in his discretion. Because Judge Doughton properly denied the jury\u2019s request for the testimony, defendant was not prejudiced by the failure of trial counsel to object to the trial court\u2019s decision.\nAbsent a showing of prejudice, defendant\u2019s ineffective assistance of counsel claims fail, and we reject defendant\u2019s second argument.\nNO ERROR.\nJudges BRYANT and BEASLEY concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.", "Kevin R Bradley, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THOMAS WAYNE LIVENGOOD\nNo. COA09-1414\n(Filed 7 September 2010)\n1. Evidence\u2014 cross-examination \u2014 objection to expert testimony \u2014 failure to give desired answer\nThe trial court did not abuse its discretion in a first-degree statutory sexual offense case by overruling defendant\u2019s objection to an expert witness\u2019s answer to a question asked by defense counsel during cross-examination. The fact that the witness did not give defense counsel the desired answer did not constitute a basis for defendant\u2019s objection.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to show prejudice\nDefendant did not receive ineffective assistance of counsel in a first-degree statutory sexual offense case based on his trial counsel\u2019s failure to object to portions of a witness\u2019s testimony, asking certain questions of that same witness, and failing to object to the trial court\u2019s denial of the jury\u2019s request for a transcript of trial testimony. Defendant extracted small snippets of testimony taken out of context, the trial court denied the jury\u2019s request for a transcript in its discretion, and defendant failed to show any prejudice arising from defense counsel\u2019s actions.\nAppeal by defendant from judgment entered 11 June 2009 by Judge Richard L. Doughton in Rowan County Superior Court. Heard in the Court of Appeals 24 March 2010. \u25a0\nAttorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.\nKevin R Bradley, for defendant-appellant." }, "file_name": "0746-01", "first_page_order": 770, "last_page_order": 775 }