{ "id": 4180983, "name": "STATE OF NORTH CAROLINA v. JAMES PATRICK TREADWAY, Defendant", "name_abbreviation": "State v. Treadway", "decision_date": "2010-12-07", "docket_number": "No. COA10-287", "first_page": "286", "last_page": "304", "citations": [ { "type": "official", "cite": "208 N.C. App. 286" } ], "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": "656 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640369 ], "year": 2008, "pin_cites": [ { "page": "696", "parenthetical": "quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0695-01" ] }, { "cite": "651 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639491 ], "year": 2007, "pin_cites": [ { "page": "866-67", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0865-01" ] }, { "cite": "612 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632809, 12632810 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0326-01", "/se2d/612/0326-02" ] }, { "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, "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": "615 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633424 ], "year": 2005, "pin_cites": [ { "page": "875", "parenthetical": "holding that admission of medical expert's testimony that child was sexually abused by defendant in absence of any physical evidence of abuse was plain error" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0870-01" ] }, { "cite": "700 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "364 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152728 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0335-01" ] }, { "cite": "677 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "689 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "689 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-318.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(a2)" }, { "page": "(a2)" } ], "opinion_index": 0 }, { "cite": "691 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2010, "pin_cites": [ { "page": "105" }, { "page": "105" }, { "page": "107-08", "parenthetical": "emphasis added" }, { "page": "108" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "700 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "44" }, { "page": "44" } ], "opinion_index": 0 }, { "cite": "535 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "878", "parenthetical": "quoting Black's Law Dictionary 563 (7th ed. 1999)" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123845 ], "year": 2000, "pin_cites": [ { "page": "202", "parenthetical": "quoting Black's Law Dictionary 563 (7th ed. 1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0198-01" ] }, { "cite": "522 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242869 ], "year": 1999, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0734-01" ] }, { "cite": "188 N.C. App. 842", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155675 ], "year": 2008, "pin_cites": [ { "page": "845", "parenthetical": "quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0842-01" ] }, { "cite": "693 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2009, "pin_cites": [ { "page": "(5)" }, { "page": "(la)" }, { "page": "(la)" }, { "parenthetical": "la" } ], "opinion_index": 0 }, { "cite": "361 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738802 ], "year": 2007, "pin_cites": [ { "page": "678", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0675-01" ] }, { "cite": "692 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 808", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "678 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2009, "pin_cites": [ { "page": "699" }, { "page": "701" }, { "page": "700" }, { "page": "701-02" } ], "opinion_index": 0 }, { "cite": "443 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "79", "parenthetical": "holding that the trial court erred in instructing the jury that it could find defendant guilty of first degree sexual offense based on the sex act of penetration by an object where there was no evidence to support that theory" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 742", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527975 ], "year": 1994, "pin_cites": [ { "page": "746", "parenthetical": "holding that the trial court erred in instructing the jury that it could find defendant guilty of first degree sexual offense based on the sex act of penetration by an object where there was no evidence to support that theory" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0742-01" ] }, { "cite": "537 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132296, 132113, 132039, 132263 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0598-02", "/nc/350/0598-03", "/nc/350/0598-04", "/nc/350/0598-01" ] }, { "cite": "512 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "434-35" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238541 ], "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0453-01" ] }, { "cite": "547 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "540 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440684 ], "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0220-01" ] }, { "cite": "335 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "79", "parenthetical": "holding that the State is bound to prove the sexual act listed in the indictment" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523420 ], "year": 1985, "pin_cites": [ { "page": "453-54", "parenthetical": "holding that the State is bound to prove the sexual act listed in the indictment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0453-01" ] }, { "cite": "289 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "362", "parenthetical": "noting that \"an indictment without specifying which 'sexual act' was committed is sufficient to charge the crime of first-degree sexual offense and to inform a defendant of such accusation\"" } ], "opinion_index": 0 }, { "cite": "305 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569965 ], "year": 1982, "pin_cites": [ { "page": "380", "parenthetical": "noting that \"an indictment without specifying which 'sexual act' was committed is sufficient to charge the crime of first-degree sexual offense and to inform a defendant of such accusation\"" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0378-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 2009, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)(2)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "682 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "468", "parenthetical": "holding that child forensic interviewer and social worker who testified that the victim's \"disclosure was plausible and consistent\" did not amount to plain error where the victim exhibited changed behavior and gave consistent statements to family, police, and DSS" } ], "opinion_index": 0 }, { "cite": "594 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "422-24" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920607 ], "year": 2004, "pin_cites": [ { "page": "729-32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0727-01" ] }, { "cite": "564 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "297", "parenthetical": "holding it was plain error to admit into evidence a written medical report wherein the treating physician stated that the victim's disclosure to her that defendant \"sodomized and performed oral sex on him . . . was credible\"" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9083069 ], "year": 2002, "pin_cites": [ { "page": "712", "parenthetical": "holding it was plain error to admit into evidence a written medical report wherein the treating physician stated that the victim's disclosure to her that defendant \"sodomized and performed oral sex on him . . . was credible\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0710-01" ] }, { "cite": "595 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "718", "parenthetical": "holding that expert's testimony that she diagnosed the victim as having been sexually abused by defendant was plain error when no physical evidence was admitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896816 ], "year": 2004, "pin_cites": [ { "page": "259", "parenthetical": "holding that expert's testimony that she diagnosed the victim as having been sexually abused by defendant was plain error when no physical evidence was admitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0254-01" ] }, { "cite": "606 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "919" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468323 ], "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0098-01" ] }, { "cite": "172 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8318688 ], "year": 2005, "pin_cites": [ { "page": "49", "parenthetical": "holding that admission of medical expert's testimony that child was sexually abused by defendant in absence of any physical evidence of abuse was plain error" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0042-01" ] }, { "cite": "697 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "328-29" }, { "page": "331" }, { "page": "331", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "364 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152666 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "314-15" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0313-01" ] }, { "cite": "571 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511280 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0428-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "598" }, { "page": "597" }, { "page": "598-99" }, { "page": "599", "parenthetical": "Campbell, J., dissenting" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "year": 2002, "pin_cites": [ { "page": "52-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0046-01" ] }, { "cite": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "553 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138480 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0354-01" ] }, { "cite": "543 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "142 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441531 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "359 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724664 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0610-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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": 2, "year": 2002, "pin_cites": [ { "page": "266-67", "parenthetical": "per curiam" }, { "page": "266-67" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "535 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "558-59", "parenthetical": "citation and quotation marks omitted" }, { "page": "657" }, { "page": "559", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684909 ], "year": 2000, "pin_cites": [ { "page": "657", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0650-01" ] }, { "cite": "688 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "682 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "759", "parenthetical": "holding that child abuse counselor's testimony that child told her that, among other things, the defendant tickled her and gave her cigarettes did not constitute inadmissible hearsay" } ], "opinion_index": 0 }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "193" }, { "page": "193" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "61" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "268 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "199", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564496 ], "year": 1980, "pin_cites": [ { "page": "697", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0694-01" ] }, { "cite": "508 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "349 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571580 ], "year": 1998, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0382-01" ] }, { "cite": "385 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522307 ], "year": 1989, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0363-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "435" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "297 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "583", "parenthetical": "\"The statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statements were made.\"" } ], "opinion_index": 0 }, { "cite": "307 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561370 ], "year": 1982, "pin_cites": [ { "page": "244", "parenthetical": "\"The statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statements were made.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0242-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "56", "parenthetical": "noting that statements are not hearsay if they are admitted for the purpose of explaining the subsequent conduct of the person to whom the statement was directed" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "282", "parenthetical": "noting that statements are not hearsay if they are admitted for the purpose of explaining the subsequent conduct of the person to whom the statement was directed" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "83", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "page": "39", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "121 S. Ct. 1379", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] } ], "analysis": { "cardinality": 1459, "char_count": 45994, "ocr_confidence": 0.746, "pagerank": { "raw": 1.309268837053017e-07, "percentile": 0.6240114771170057 }, "sha256": "b6f87653a3cb4798ef22645ed64720b7f306da6f6c7837742d8c88e28fa69e0a", "simhash": "1:072c70e2662ac57c", "word_count": 7506 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert N., Jr. and WALKER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES PATRICK TREADWAY, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nJames Patrick Treadway (\u201cdefendant\u201d) appeals from a judgment entered pursuant to a jury verdict finding him guilty of one count of first degree sexual offense. After careful review, we reverse and remand in part and find no prejudicial error in part.\nBackground\nThe evidence at trial tended to show that defendant and his girlfriend, Sally, moved in together in the fall of 2004, along with Lucy, Sally\u2019s six-year-old daughter, and the couple\u2019s son, Calvin. Several months later, Sally\u2019s uncle, John, his girlfriend, Judy, and their five-year-old daughter, Amber, moved into the trailer. The sleeping arrangements were as follows: defendant and Sally shared a bedroom at one end of the trailer; Calvin had his own bedroom; Lucy and Amber shared a bedroom at the other end of the trailer; and John and Judy slept on a futon in the den approximately two to three feet outside of Lucy and Amber\u2019s bedroom.\nAt trial, Lane, Amber\u2019s step-grandmother, testified that on 22 January 2005, Amber told her that defendant \u201ctr[ied] to put his pee pee in [her] pee pee,\u201d put his finger in her vagina, licked her vagina, and kissed her on the mouth. Lane then informed her husband, as well as John and Judy, of Amber\u2019s allegations. Amber\u2019s parents took her to the local hospital, but the hospital did not perform examinations to ascertain potential sexual abuse. The hospital did report the allegations to the Department of Social Services (\u201cDSS\u201d). Detective Mark St. Clair (\u201cDetective St. Clair\u201d), with the Alexander County Sheriff\u2019s office, investigated Amber\u2019s allegations. Detective St. Clair did not personally interview Amber, but he set up an interview through DSS. No charges were brought against defendant at that time.\nIn July 2005, Lucy made allegations that defendant sexually abused her as well. Detective St. Clair testified that when he interviewed Lucy, she pointed to the vaginal area on a diagram of a female child and stated that defendant touched her there with his fingers. Lucy claimed that the touching occurred at least four times when she was in bed at night. Lucy told Detective Donna Clanton (\u201cDetective Clanton\u201d) that defend ant touched her \u201cpee pee\u201d with his fingers and \u201ckissed her pee pee.\u201d\nDefendant was indicted on four counts of first degree sexual offense \u2014 two counts against Amber (one count alleging digital penetration and one count alleging cunnilingus), and two counts against Lucy (one count alleging digital penetration and one count alleging cunnilingus). At trial, both Amber and Lucy testified that defendant digitally penetrated them when they lived with him. Neither girl testified that defendant had engaged in cunnilingus, although several witnesses testified that the girls previously alleged cunnilingus. Defendant testified that he never sexually molested the two girls.\nAfter the close of the State\u2019s evidence, defense counsel moved to dismiss the charges and the trial court granted the motion as to the two indictments alleging cunnilingus because the State failed to present sufficient evidence to support those charges. On 30 July 2009, the jury found defendant guilty of first degree sexual offense against Amber and not guilty of first degree sexual offense against Lucy. The trial court determined that defendant was a Prior Record Level II for sentencing purposes and sentenced defendant to 260 to 321 months imprisonment. The trial court then entered written findings of fact and ordered defendant to submit to satellite based monitoring (\u201cSBM\u201d) for the remainder of his natural life. Defendant timely appealed to this Court.\nDiscussion\nI. Hearsay\nDefendant argues that the trial court erred in allowing inadmissible hearsay to be entered into evidence. Defendant did not object to the testimony, but has requested plain error review. \u201c[P]lain error review is limited to errors in a trial court\u2019s jury instructions or a trial court\u2019s rulings on admissibility of evidence.\u201d State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000), cert. denied, 121 S. Ct. 1379, 149 L. Ed. 2d 305 (2001). \u201cThe plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.\u201d State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (internal citation and quotation marks omitted).\nHearsay is defined as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801 (2009). Rule 802 of the North Carolina Rules of Evidence provides that \u201c[hjearsay is not admissible except as provided by statute or by these rules.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (2009).\nFirst, defendant points to Lane\u2019s testimony that Amber told her that defendant \u201cliked to have sex with her[,]\u201d that \u201che tries to put his pee pee in [her] pee pee[,]\u201d that \u201che would put his finger in her pee pee[,]\u201d \u201click her pee pee[,]\u201d and \u201ckiss[] her in the mouth.\u201d Lane further testified that Amber claimed defendant would follow her into the bathroom, make her take her clothes off, and sexually molest her. Upon review of the transcript, we hold that Lane\u2019s testimony was offered for the non-hearsay purpose of explaining Lane\u2019s subsequent conduct. State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) (noting that statements are not hearsay if they are admitted for the purpose of explaining the subsequent conduct of the person to whom the statement was directed); State v. Tate, 307 N.C. 242, 244, 297 S.E.2d 581, 583 (1982) (\u201cThe statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statements were made.\u201d). Here, Lane was describing Amber\u2019s original allegations against defendant, which prompted her to relay that information to Amber\u2019s parents so medical treatment could be obtained. Accordingly, Lane\u2019s statements were intended to establish why investigative action was originally taken, not to prove that defendant engaged in the conduct alleged.\nAdditionally, these prior statements made by Amber to Lane served to corroborate Amber\u2019s trial testimony. \u201cA prior consistent statement may be admissible as non-hearsay even when it contains new or additional information when such information tends to strengthen or add credibility to the testimony which it corroborates.\u201d State v. Levan, 326 N.C. 155, 167, 388 S.E.2d 429, 435 (1990). Out-of-court statements offered to corroborate a child\u2019s testimony regarding sexual abuse have been held to be non-hearsay. Id.; State v. Gilbert, 96 N.C. App. 363, 365, 385 S.E.2d 815, 816 (1989). \u201cThe trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, nonhearsay purposes.\u201d State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998). \u201cWhen the statements are generally consistent with the witness\u2019 testimony, slight variations will not render them inadmissible. Such variations affect only the weight of the evidence which is for the jury to determine.\u201d State v. Moore, 300 N.C. 694, 697, 268 S.E.2d 196, 199 (1980) (internal citation omitted), disapproved on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993). Although Lane\u2019s testimony provided statements about which Amber did not testify concerning cunnilingus and attempted penile penetration, we hold that Lane\u2019s testimony was sufficiently similar to Amber\u2019s testimony and served to corroborate Amber\u2019s testimony regarding the abuse, particularly the act of digital penetration. The portions of Lane\u2019s testimony that varied from Amber\u2019s account at trial affected only the weight of the evidence. Id.\nSecond, defendant takes issue with the testimony of Tammy Mumford (\u201cMs. Mumford\u201d), an expert in the area of clinical social work. Ms. Mumford, in relaying Amber\u2019s statements to her, testified as follows:\n[Defendant] had sex with her and that upon questioning what that meant, she told me that [defendant] had touched her private part and forced her to touch his. That she was forced to put her mouth on his penis and that he put his fingers inside her.\nAs with Lane\u2019s testimony, we hold that Ms. Mumford\u2019s testimony served to corroborate Amber\u2019s trial testimony. Although Ms. Mumford\u2019s testimony provided \u201cnew or additional information[,]\u201d her testimony tended to \u201cstrengthen\u201d Amber\u2019s testimony that she had been sexually abused by defendant. State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001); see also State v. Horton, - N.C. App. -, 682 S.E.2d 754, 759 (2009) (holding that child abuse counselor\u2019s testimony that child told her that, among other things, the defendant tickled her and gave her cigarettes did not constitute inadmissible hearsay).\nWe note that the jury was instructed as to the proper method of evaluating prior out-of-court statements by a testifying witness. The trial court stated:\nWhen evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent with or may conflict with the witness\u2019 testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial. If you believe that such earlier statement was made and that it was consistent with or does conflict with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness\u2019 truthfulness, in deciding whether you will believe or disbelieve the witness\u2019 testimony at this trial.\nThird, defendant takes issue with the admission of testimony from Kathy Young-Shugar (\u201cMs. Young-Shugar\u201d), an expert witness in the area of child mental health. Ms. Young-Shugar testified that she treated Kevin, John\u2019s son from a previous marriage, for \u201csexually reactive behavior\u201d that was occurring between Kevin and Amber. According to Ms. Young-Shugar\u2019s trial testimony, Kevin told her that he had seen defendant on top of Amber during the night \u201c \u2018doing sex things.\u2019 \u201d Defendant argues on appeal that Ms. Young-Shugar\u2019s testimony concerning Kevin\u2019s statements to her constitutes inadmissible hearsay. This arguments is without merit since defendant elicited this testimony on cross-examination when counsel asked Ms. YoungShugar what she believed to be the source of Kevin\u2019s sexually reactive behavior. \u201cStatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.\u201d State v. Fraley, - N.C. App. -, 688 S.E.2d 778, 785 (2010).\nIn sum, we find no error, much less plain error in the admission of Lane\u2019s, Ms. Mumford\u2019s, or Ms. Young-Shugar\u2019s testimony regarding the out-of-court statements of other witnesses. Assuming, arguendo, that the trial court should have ex mero motu excluded the testimony of these three witnesses, defendant has not proven to this Court that the admissions constituted plain error. Amber testified at trial that defendant digitally penetrated her on multiple occasions. Ms. Mumford testified, as discussed in greater detail infra, that Amber\u2019s behavior was consistent with a child that had been sexually victimized. Moreover, the charge pertaining to cunnilingus was dismissed by the trial court because Amber did not testify that defendant had engaged in that act even though Lane and Ms. Mumford testified that Amber had previously alleged cunnilingus. Defendant was convicted of one count of first degree sex offense for the digital penetration of Amber. We cannot say that the outcome of the trial would have been different had this testimony been excluded.\nII. Expert Testimony\nNext, defendant argues that the trial court erred in admitting the expert opinion of Ms. Mumford that she \u201cdiagnosed [Amber] with sexual abuse.\u201d Ms. Mumford was presented as an expert in clinical social work and defendant did not object. Defendant also did not object to Ms. Mumford\u2019s testimony, but has requested plain error review.\nRule 702 governs the admissibility of an expert opinion in sexual offense prosecutions. Rule 702 states in pertinent part: \u201cIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (2009). \u201cExpert testimony is properly admissible when it can assist the jury in drawing certain inferences from facts and the expert is better qualified than the jury to draw such inferences.\u201d State v. Mackey, 352 N.C. 650, 657, 535 S.E.2d 555, 558-59 (2000) (citation and quotation marks omitted). An essential question in determining admissibility of such evidence is \u201cwhether the witness, through study or experience, has acquired such skill that he is better qualified than the jury to form an opinion on the subject matter to which his testimony applies.\u201d Id. at 657, 535 S.E.2d at 559 (citation and quotation marks omitted).\nIt is well established that\n[i]n 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. However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.\nState v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam) (citing State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987), and State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179, aff\u2019d per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001)). Where the expert testimony is based on a proper foundation, \u201c[t]he fact that this evidence may support the credibility of the victim does not alone render it inadmissible.\u201d State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987).\nIn the present case, Ms. Mumford testified that she \u201cdiagnosed [Amber] with sexual abuse . . . .\u201d This diagnosis was improper given the lack of physical evidence of abuse. Stancil, 355 N.C. at 266-67, 559 S.E.2d at 789. In a similar case, State v. Dixon, 150 N.C. App. 46, 52-53, 563 S.E.2d 594, 598, aff\u2019d per curiam, 356 N.C. 428, 571 S.E.2d 584 (2002), we held that an error occurred where a clinical psychologist, Dr. Powell, testified that it was his opinion that the victim, S.E., had been sexually abused where the only physical evidence of abuse was \u201cnonspecific irritation\u201d of the victim\u2019s vagina that was not conclusive of sexual abuse. The psychologist based his opinion on interviews with the victim, her grandparents, her aunt, her mother, and the defendant, as well as the report of the physician who completed the child medical exam, the victim\u2019s use of anatomically correct dolls, and the results of a psychological evaluation. Id. at 50, 563 S.E.2d at 597. This Court held:\nAlthough there were no physical findings to support a diagnosis of sexual abuse, the psychologist, Dr. Powell, was permitted to state his opinion that S.E. had been sexually abused. The opinion was not supported by an adequate foundation and its admission was error. Though Dr. Powell\u2019s testimony with respect to the various psychological tests, interviews, and reports upon which he relied may have been a sufficient foundation to support an opinion that S.E. did or did not exhibit symptoms or characteristics of victims of child sexual abuse, it was not a sufficient foundation for the admission of his opinion, under Rule 702, that S.E. had in fact been sexually abused.\nId. at 53, 563 S.E.2d at 598-99.\nThe recent case of State v. Chandler, 364 N.C. 313, 697 S.E.2d 327 (2010), further supports our holding. In Chandler, 364 N.C. at 314-15, 697 S.E.2d at 328-29, the defendant argued before the Supreme Court that Standi and its progeny significantly changed the law with regard to expert testimony in child sexual abuse cases, and, therefore, he was entitled to a new trial under N.C. Gen. Stat. \u00a7 15A-1415(b)(7) (2009). The Court held that Standi did not change the law with regard to the permissible scope of expert opinion testimony in child sexual abuse cases; rather, the Standi Court \u201csimply applied the existing law on expert opinion evidence as stated in Trent.\u201d Id. at 318, 697 S.E.2d at 331. The Court in Chandler made the following clarification with regard to existing case law:\nWhether sufficient evidence supports expert testimony pertaining to sexual abuse is a highly fact-specific inquiry. Different fact patterns may yield different results. We agree with the State that \u201creasonable jurists continue to disagree over how or whether the rule discussed in Trent [applies] to different situations.\u201d However, the rule has remained constant. Before expert testimony may be admitted, an adequate foundation must be laid. And for expert testimony presenting a definitive diagnosis of sexual abuse, an adequate foundation requires supporting physical evidence of the abuse.\nId. at 318-19, 697 S.E.2d at 331 (internal citations omitted) (emphasis added). Accordingly, we must hold that Ms. Mumford\u2019s diagnosis of sexual abuse absent physical evidence was erroneously admitted in this case.\nWe must now determine whether the improperly admitted statement amounted to plain error. In surveying the case law, this Court has found plain error where an expert testified that the victim had, in fact, been abused despite the absence of physical evidence. State v. Delsanto, 172 N.C. App. 42, 49, 615 S.E.2d 870, 875 (2005) (holding that admission of medical expert\u2019s testimony that child was sexually abused by defendant in absence of any physical evidence of abuse was plain error); State v. Ewell, 168 N.C. App. 98, 105, 606 S.E.2d 914, 919 (holding that it was plain 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 was not based on physical evidence), disc. review denied, 359 N.C. 412, 612 S.E.2d 326 (2005); State v. Bush, 164 N.C. App. 254, 259, 595 S.E.2d 715, 718 (2004) (holding that expert\u2019s testimony that she diagnosed the victim as having been sexually abused by defendant was plain error when no physical evidence was admitted); see also State v. O\u2019Connor, 150 N.C. App. 710, 712, 564 S.E.2d 296, 297 (2002) (holding it was plain error to admit into evidence a written medical report wherein the treating physician stated that the victim\u2019s disclosure to her that defendant \u201csodomized and performed oral sex on him . . . was credible\u201d). In State v. Couser, 163 N.C. App. 727, 729-32, 594 S.E.2d 420, 422-24 (2004), where the only physical evidence of abuse were abrasions on the victim\u2019s introitus that were not specifically related to sexual abuse, we held that a medical expert\u2019s opinion that the child \u201cprobably had been sexually abused\u201d was plain error because it amounted to an improper opinion concerning the victim\u2019s credibility.\nUnlike the cases cited supra, this case presents a situation where improper opinion testimony is followed by testimony properly admitted under Rule 702 and our case law. While Ms. Mumford, who had been treating Amber for over four years, did improperly testify that she diagnosed Amber with sexual abuse, she subsequently testified that Amber displayed behavior that was consistent with children who have been sexually abused, as permitted by Standi.\nWhen asked about the basis of her diagnosis, Ms. Mumford responded:\n[Amber] has trouble with regulating her emotions, particularly with anxiety and anger and irritability. She is anxious often at times. It affects her functioning at school and at home; and she disclosed to me that she was sexually abused and that has been an ongoing issue for her since February \u201905.\nMs. Mumford also relayed reports made to her by Amber\u2019s family that she was exhibiting \u201cclinging\u201d behavior, was very anxious, and did not want to leave her house. Ms. Mumford did not directly relate this behavior to children who have been sexually abused; however, Ms. Mumford further testified that Amber had demonstrated \u201cgrooming behaviors,\u201d and that Amber felt that she had a special relationship with defendant, which was consistent with children who have been sexually abused. Additionally, Ms. Mumford related Amber\u2019s sexual abuse to the \u201csexually reactive\u201d behavior between Amber and Kevin, stating that it is \u201ctypical of children who have been sexually abused to act out in these ways after their abuse .. . .\u201d Ms. Mumford testified that \u201c [i]t is normal with kids who have been sexually abused\u201d to seek out something that traumatized them. Ms. Mumford\" stated that, in her experience, children Amber\u2019s age typically do not fantasize about sex. Ms. Mumford also testified that Amber would draw pictures of defendant \u201cand act out her anger on the pictures and use a stabbing motion with a marker and tear them up and crumble them up[.]\u201d When asked why a child would do that, Ms. Mumford responded that \u201c [i]t was a release of her anger and her emotions against [defendant] and the trauma she\u2019s experienced.\u201d The above testimony was properly admitted and included a correlation between Amber\u2019s behavior and that of children who have been sexually abused. We also note that on cross-examination, Ms. Mumford acknowledged that, in her experience counseling children, Amber\u2019s behavior could be the result of some other event that happened in her past and not sexual abuse. This admission served to diminish the prejudicial impact of Ms. Mumford\u2019s improper diagnosis because it provided the jury with an alternative explanation for the diagnosis.\nIn addition to Amber\u2019s behavior, disclosures, the corroborating testimony of other witness, and the properly admitted portions of Ms. Mumford\u2019s testimony, there was some evidence that Kevin had seen defendant molest Amber. Although Kevin did not testify at trial that he saw defendant engaging in sexual activity with Amber, Ms. YoungShugar testified that Kevin divulged to her that he had personally witnessed defendant \u201c \u2018doing sex things\u2019 \u201d with Amber at night. Ms. Young-Shugar testified that Kevin also exhibited sexually reactive behavior which stemmed from witnessing these sex acts.\nIn sum, we hold that Ms. Mumford\u2019s statement that she diagnosed Amber with sexual abuse was erroneously admitted, but this error did not amount to plain error. See State v. Boyd, - N.C. App. -, -, 682 S.E.2d 463, 468 (2009) (holding that child forensic interviewer and social worker who testified that the victim\u2019s \u201cdisclosure was plausible and consistent\u201d did not amount to plain error where the victim exhibited changed behavior and gave consistent statements to family, police, and DSS). Ms. Mumford properly testified that Amber exhibited behavior that was consistent with children who have been sexually abused, and, therefore, we conclude that her testimony was not based solely on Amber\u2019s disclosures. We do not believe that a different result would have been reached at trial had Ms. Mumford\u2019s diagnosis been excluded.\nIII. Jury Instructions\nNext, defendant argues that the trial court committed plain error by failing to instruct the jury that the State must prove that defendant digitally penetrated Amber\u2019s vagina, as alleged in the indictment. To amount to plain error, the instructional error must be \u201cso fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.\u201d State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993).\nN.C. Gen. Stat. \u00a7 14-27.4 (2009) states: \u201cA person is guilty of a sexual offense in the first degree if the person engages in a sexual act . . . [w]ith a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim[.]\u201d A sexual act is defined as \u201ccunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person\u2019s body[.]\u201d N.C. Gen. Stat. \u00a7 14-27.1(4) (2009).\nThe indictment pertaining to Amber alleged each essential element of first degree sexual offense, but added that the sexual act committed was \u201cdigital penetration of the child\u2019s vagina.\u201d Defendant acknowledges that the State was not required to specify in the indictment the sexual act alleged. State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) (noting that \u201can indictment without specifying which \u2018sexual act\u2019 was committed is sufficient to charge the crime of first-degree sexual offense and to inform a defendant of such accusation\u201d). It is undisputed that since the State specified digital penetration in the indictment, it was bound to provide substantial evidence at trial that digital penetration occurred. State v. Loudner, 77 N.C. App. 453, 453-54, 335 S.E.2d 78, 79 (1985) (holding that the State is bound to prove the sexual act listed in the indictment). Where the State fails to provide substantial evidence of the allegations in the indictment, the defendant\u2019s motion to dismiss the charge should be granted. Id. To be clear, defendant does not argue that the State failed to provide substantial evidence of digital penetration at trial. In fact, Amber testified that defendant digitally penetrated her. Accordingly, the issue is not whether there was a fatal variance between the indictment and the evidence presented at trial. The issue before us is whether the trial court was required to instruct the jury that the State must prove that defendant digitally penetrated Amber\u2019s vagina as alleged in the indictment.\nThis Court has held that a jury does not have to reach a unanimous conclusion as to which sex act the defendant performed when returning a verdict of guilty to first degree sexual offense. See State v. Youngs, 141 N.C. App. 220, 232, 540 S.E.2d 794, 802 (finding no error where defendant argued that the \u201ctrial court erred in not instructing the jury that it must be unanimous as to which sex act defendant committed in order to convict him of first-degree sexual offense\u201d), appeal dismissed and disc. review denied, \u2014 N.C. \u2014, 547 S.E.2d 430 (2000); State v. Petty, 132 N.C. App. 453, 463, 512 S.E.2d 428, 434-35 (holding that the jury need only find that a sexual act occurred to convict the defendant of first degree sexual offense), appeal dismissed, 350 N.C. 598, 537 S.E.2d 490 (1999). However, the trial court must instruct the jury only on the sex act or acts supported by the evidence. State v. Hughes, 114 N.C. App. 742, 746, 443 S.E.2d 76, 79 (1994) (holding that the trial court erred in instructing the jury that it could find defendant guilty of first degree sexual offense based on the sex act of penetration by an object where there was no evidence to support that theory).\nIn the resent case, the indictment stated that defendant digitally penetrated Amber. The evidence at trial supported that allegation. The trial court then properly instructed the jury on each element of first degree sexual offense and stated that \u201c[a] sexual act means any penetration, however slight, by an object into the genital opening of a person\u2019s body.\u201d The trial court left out cunnilingus, fellatio, analingus, and anal intercourse from the definition of a sexual act, presumably because those theories were not supported by the evidence.\nDefendant has not cited a case, and we have found none, where our Courts have required the trial court to instruct the jury that it could only find defendant guilty if the State proved beyond a reasonable doubt at trial that defendant committed the sex act stated in the indictment. Such a holding would be contrary to this Court\u2019s determination in State v. Lark, - N.C. App. -, -, 678 S.E.2d 693 (2009), disc. review denied, 363 N.C. 808, 692 S.E.2d 111 (2010). There, the defendant was tried and convicted on an indictment for felonious child abuse that listed \u201canal intercourse\u201d as the underlying sex act. Id. at -, 678 S.E.2d at 699. \u201c[T]he trial court instructed the jury on the theory of anal intercourse that was alleged in the indictment. In addition, the trial court also instructed on the theory of fellatio that was not alleged in the indictment, but that was supported by the evidence.\u201d Id. at -, 678 S.E.2d at 701. Defendant assigned error to the jury instructions, arguing that the trial court was not permitted to instruct the jury on a sex act not set out in the indictment. Id. at -, 678 S.E.2d at 700. This Court found no error in the instructions and held that the trial court is permitted to instruct the jury on all sex acts supported by the evidence, even if those sex acts were not set out in the indictment. Id. at -, 678 S.E.2d at 701-02. A holding in the present case that the trial court is required to instruct the jury that it must find the defendant guilty of the sex act stated in the indictment would not comport with the reasoning in Lark \u2014 that the trial court\u2019s instructions must conform to the evidence presented at trial, but are not limited to those sex acts alleged in the indictment.\nMoreover, \u201cthe primary purpose of the indictment is to enable the accused to prepare for trial.\u201d State v. Farrar, 361 N.C. 675, 678, 651 S.E.2d 865, 866-67 (2007) (citation and quotation marks omitted). The State\u2019s discretionary decision to include the sexual act that formed the basis of the first degree sexual offense indictment gave more notice to defendant than is required and certainly enabled him to better prepare his defense. Requiring a jury instruction that the State must prove the sexual act specified in the indictment would dissuade the State from including such specification thereby defeating the primary purpose of the indictment \u2014 notice to defendant of the charges against him. In sum, we hold that the trial court properly instructed the jury on the offense charged and was not required to instruct the jury that the State had to prove digital penetration as alleged in the indictment.\nDefendant further contends that the trial court did not properly instruct the jury that the two counts of first degree sexual offense referred to two alleged victims. This argument is without merit. The trial court properly instructed the jury that \u201cDefendant has been charged with two counts of first degree sexual offense. Each of which must be considered by you separately and independently.\u201d The jury was then given verdict sheets that separated the two charges and specified one as pertaining to Amber and the other as pertaining to Lucy. The jury then found defendant guilty as to Amber and not guilty as to Lucy. Even assuming error, defendant has not shown any prejudice where the jury clearly deliberated each charge separately. We find no error, much less plain error, in the trial court\u2019s jury instructions.\nIV. SBM\nFinally, defendant argues that the trial court erred in ordering him to enroll in lifetime SBM. Defendant asserts that: (1) the trial court erroneously found as fact that defendant had been convicted of an offense against a minor pursuant to N.C. Gen. Stat. \u00a7 14-208.6 (2009), and (2) the trial court erroneously found as fact that defendant was convicted of an aggravated offense.\nFirst, the State concedes that the trial court incorrectly found as fact that defendant had been convicted of \u201can offense against a minor under G.S. 14-208.6(li) . . . and defendant is not the parent of the victim.\u201d However, defendant admits that he was convicted of a reportable offense \u2014 a sexually violent offense under N.C. Gen. Stat. \u00a7 14-208.6(5). Therefore, it is undisputed that the trial court selected the wrong offense to support its finding that defendant was found guilty of a reportable conviction.\n\u201cWe realize that in the process of checking boxes on form orders, it is possible for the wrong box to be marked inadvertently, creating a clerical error which can be corrected upon remand.\u201d State v. Yow, - N.C. App. -, -, 693 S.E.2d 192, 194 (2010). \u201cWhen, on appeal, a clerical error is discovered in the trial court\u2019s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record \u2018speak the truth.\u2019 \u201d State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)). A \u201cclerical error\u201d has been defined as \u201c[a]n error resulting from a minor mistake or inadvertence, in writing or copying something on the record, and not from judicial reasoning or determination.\u201d State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black\u2019s Law Dictionary 563 (7th ed. 1999)).\nThis Court recently addressed this same issue in State v. May, - N.C. App. -, -, 700 S.E.2d 42, 44 (2010) and held that the trial court committed a clerical error in checking Box 1(a) instead of Box 1(b) on the judicial findings and order for sex offenders form. The Court remanded the case back to the trial court for correction of the clerical error where, as here, the defendant admitted that he had committed a sexually violent offense. Id. at -, 700 S.E.2d at 44.\nNext, defendant argues that first degree sexual offense is not an aggravated offense, thus the trial court erred in finding as fact that defendant had committed an aggravated offense. An aggravated offense is defined as \u201cany criminal offense that includes either\u201d: (i) \u201cengaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence\u201d; or (ii) \u201cengaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.\u201d N.C. Gen. Stat. \u00a7 14-208.6(la) (2009). The State in this case indicted defendant under N.C. Gen. Stat. \u00a7 14-27.4(a)(l), which states:\n(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:\n(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim.\nThe State did not allege in the indictment, nor did it provide evidence at trial, that defendant was guilty of first degree sexual offense under N.C. Gen. Stat. \u00a7 14-27.4(a)(2), which requires use of force and either the use of a dangerous weapon, infliction of serious personal injury, or that the perpetrator was aided and abetted by one or more persons. The trial court instructed the jury on the elements of N.C. Gen. Stat. \u00a7 27.4(a)(1) and the judgment sets out defendant\u2019s conviction as being pursuant to N.C. Gen. Stat. \u00a7 27.4(a)(1). Accordingly, our holding in this case is limited to N.C. Gen. Stat. \u00a7 14-27.4(a)(l).\nDefendant argues, and we agree, that State v. Phillips, \u2014 N.C. App. -, 691 S.E.2d 104 (2010) is controlling and requires a conclusion that first degree sexual offense pursuant to N.C. Gen. Stat. \u00a7 14-27.4(a)(l) does not qualify as an aggravated offense. The State makes no contrary argument, but seeks to preserve the issue for Supreme Court review. In Phillips, - N.C. App. at -, 691 S.E.2d at 105, the defendant pled guilty to, inter alia, felonious child abuse pursuant to N.C. Gen. Stat. \u00a7 14-318.4(a2) (2009). The trial court found that the offense qualified as an aggravated offense under N.C. Gen. Stat. \u00a7 14-208.6(la) and ordered the defendant to lifetime SBM. Phillips, - N.C. App. at -, 691 S.E.2d at 105. The defendant argued on appeal that the offense did not qualify as an aggravated offense. Id. In making its decision, the Court in Phillips relied on the holding in State v. Davison, - N.C. App. -, 689 S.E.2d 510 (2009), where, after reviewing the language of the statutes at issue, this Court held that the General Assembly\u2019s \u201crepeated use of the term \u2018conviction\u2019 \u201d compelled the conclusion that the trial court \u201cis only to consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction\u201d when determining whether a defendant\u2019s \u201cconviction offense [i]s an aggravated offense . . . .\u201d Id. at -, 689 S.E.2d at 517; accord State v. Singleton, - N.C. App. -, - 689 S.E.2d 562, disc. review improvidently allowed, - N.C. -, - S.E.2d \u2014 (2010).\nThe Phillips Court then reviewed the elements of felonious child abuse under N.C. Gen. Stat. \u00a7 14-318.4(a2), which provides: \u201cAny parent or legal guardian of a child less than 16 years of age who commits or allows the commission of any sexual act upon the child is guilty of a Class E felony.\u201d The Court then reasoned:\n[I]f an offense does not involve engaging in a sexual act through the use of force or threat of serious violence, the offense can only be found to be an \u201caggravated offense\u201d if it involves engaging in sexual acts involving penetration \u201cwith a victim who is less than 12 years old.\u201d However, felonious child abuse by the commission of any sexual act provides that the victim must be \u201ca child less than 16 years of age.\u201d Since \u201ca child less than 16 years\" is not necessarily also \u201cless than 12 years old, \u201d without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. Therefore, in light of our review of the plain language of the statutes at issue, we must conclude that the trial court erred when it determined that defendant\u2019s conviction offense of felonious child abuse by the commission of any sexual act under N.C.G.S. \u00a7 14-318.4(a2) is an \u201caggravated offense\u201d as defined under N.C.G.S. \u00a7 14-208.6(la) because, when considering the elements of the offense only and not the underlying factual scenario giving rise to this defendant\u2019s conviction, the elements of felonious child abuse by the commission of any sexual act do not \u201cfit within\u201d the statutory definition of \u201caggravated offense.\u201d\nPhillips, - N.C. App. at -, 691 S.E.2d at 107-08 (emphasis added) (internal citations omitted).\nIn the present case, the State alleged first degree sexual offense pursuant to N.C. Gen. Stat. \u00a7 14-27.4(a)(l), which requires that the child victim be \u201cunder the age of 13.\u201d An aggravated offense requires that the child be \u201cless than 12 years old.\u201d N.C. Gen. Stat. \u00a7 14-208.6 (la). Clearly, a child under the age of 13 is not necessarily also a child less than 12 years old. Following the holdings of Davison and Phillips, we are obliged to hold that first degree sexual offense pursuant to N.C. Gen. Stat. \u00a7 14-27.4(a)(l) is not an aggravated offense. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nNevertheless, even where a defendant has not committed an aggravated offense, the trial court may still impose SBM if it is determined that: (1) the defendant is a sexually violent predator; (2) the defendant is a recidivist; or (3) the conviction involved the physical, mental, or sexual abuse of a minor, and based on the risk assessment performed by the Department of Correction, the defendant requires the highest possible level of supervision and monitoring. N.C. Gen. Stat. \u00a7 14-208.40A (c), (d). In Phillips, N.C. App. at, 691 S.E.2d at 108, a risk assessment had already been performed by the Department of Correction and the defendant was found to be \u201clow risk.\u201d Additionally, the trial court had already determined that the defendant was not a sexually violent predator or a recidivist. Id. Consequently, this Court found that the trial court could not possibly order the defendant to enroll in SBM and ordered the trial court to reverse its determination as to SBM on remand. Id. Here, the record indicates that the trial court did not determine whether defendant is a sexually violent predator or a recidivist, and a Department of Correction assessment has not been performed. Accordingly, we reverse the trial court\u2019s order and remand for correction of the mistake made by the trial court in its finding regarding the reportable conviction, and we remand for consideration of whether defendant is a sexually violent predator, a recidivist, or whether his conviction involved the physical, mental, or sexual abuse of a minor, and based on the risk assessment performed by the Department of Correction, defendant requires the highest possible level of supervision and monitoring.\nDefendant seeks to preserve his argument that SBM violates the ex post facto clause of the United States Constitution, but acknowledges that this argument has been foreclosed pursuant to State v. Bare, \u2014 N.C. App. \u2014, 677 S.E.2d 518 (2009). Our Supreme Court recently held in State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1 (2010), that imposition of SBM does not violate the ex post facto clause of the state or federal constitutions as it is a civil regulatory scheme and not a criminal punishment.\nConclusion\nBased on the foregoing analysis, we hold that the trial court: (1) did not commit plain error in admitting the testimony of various witnesses; (2) did not commit plain error in its instructions to the jury; and (3) erred in its findings of fact pertaining to imposition of SBM.\nNo Prejudicial Error in part; Reversed and Remanded in part.\nJudges HUNTER, Robert N., Jr. and WALKER concur.\n. Pseudonyms are used throughout this opinion to protect the anonymity of the minor children.\n. The dissent in Dixon pointed out that the majority was adopting a bright line rule \u201cthat expert opinion testimony that a child victim has been sexually abused is only admissible under Rule 702 when there is physical evidence to support a diagnosis of sexual abuse[.]\u201d Id. at 54, 563 S.E.2d at 599 (Campbell, J., dissenting). Our Supreme Court affirmed the majority per curiam. 356 N.C. 428, 571 S.E.2d 584.\n. The State argues that defendant failed to object to the imposition of SBM; however, our Courts have not required an objection where defendant challenges on appeal the trial court\u2019s written findings of fact.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.", "Kimberly R Hoppinfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES PATRICK TREADWAY, Defendant\nNo. COA10-287\n(Filed 7 December 2010)\n1. Evidence\u2014 account of victim\u2019s statements \u2014 no hearsay purpose \u2014 initiation of investigation\nThere was no plain error in a prosecution for first-degree sexual offense against a five-year-old child in the admission of a step-grandmother\u2019s testimony relating the things the child had said that defendant had done. The testimony was offered for the non-hearsay purpose of explaining the grandmother\u2019s subsequent actions and why investigative action was originally taken. Additionally these prior statements served to corroborate the victim\u2019s trial testimony.\n2. Evidence\u2014 accounts of victim\u2019s statements \u2014 corroboration \u2014beyond trial testimony\nAdmitting the testimony of a step-grandmother relating statements made by a five-year-old sexual abuse victim about what was done to her was not plain error where the prior statements served to corroborate the child\u2019s trial testimony Prior statements that went beyond the child\u2019s trial testimony affected only the weight of the evidence.\n3. Evidence\u2014 hearsay \u2014 elicited on cross-examination\nThere was no plain error in a prosecution for first-degree sexual offense against a five-year-old child in the admission of testimony from a child mental health expert that defendant\u2019s son from a previous marriage had said that he had seen defendant on top of the victim at night doing \u201csex things.\u201d Defendant elicited the testimony on cross-examination.\n4. Evidence\u2014 expert testimony \u2014 opinion of child\u2019s credibility\nThere was no plain error in a prosecution for first-degree sexual offense against a child where an expert clinical social worker testified without objection that she had diagnosed the victim as being sexually abused. The testimony amounted to an improper opinion about the victim\u2019s credibility since there was no physical evidence of abuse; however, it was not plain error because the testimony was followed by properly admitted testimony that the victim exhibited behavior that was consistent with children who have been sexually abused. The challenged testimony was thus not based only on the victim\u2019s disclosures.\n5. Sexual Offenses \u2014 first-degree\u2014instructions\u2014specific acts not specified\nThe trial court was not required in a prosecution for the first-degree sexual offense against a child to instruct the jury that the State had to prove the specific act alleged in the indictment.\n6. Sexual Offenses\u2014 first-degree \u2014 two counts \u2014 instructions\nThere was no error in a prosecution for two counts of first-degree sexual offense where defendant alleged that the court did not properly instruct the jury that the two counts referred to two victims. The court properly instructed the jury, the jury was given verdict sheets that separated the charges, and the jury found defendant guilty of one and not guilty of the other.\n7. Satellite-Based Monitoring\u2014 clerical error \u2014 basis of order \u2014 remanded\nAn order that defendant enroll in lifetime satellite-based monitoring was remanded for correction of a clerical error in the selection of the offense supporting the finding that defendant was guilty of a reportable conviction, and for consideration of whether defendant was a sexually violent predator, a recidivist, or whether his conviction involved the abuse of a minor, as well as whether defendant required the highest possible level of supervision and monitoring.\nAppeal by defendant from judgment entered 30 July 2009 by Judge Christopher M. Collier in Alexander County Superior Court. Heard in the Court of Appeals 14 September 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.\nKimberly R Hoppinfor defendant-appellant." }, "file_name": "0286-01", "first_page_order": 310, "last_page_order": 328 }