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      "STATE OF NORTH CAROLINA v. DAVID ALLEN CARTER"
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      {
        "text": "ERVIN, Judge.\nDefendant David Allen Carter appeals from judgments sentencing him to 192 months to 240 months imprisonment based upon his conviction for first-degree sexual offense in File No. 08 CrS 57285 and to a consecutive term of 192 months to 240 months imprisonment based upon his conviction for first-degree sexual offense in File No. 08 CrS 57286. On appeal, Defendant contends that the trial court erred by (1) denying his motion to dismiss the first-degree sexual offense charge lodged against him in File No. 08 CrS 57286 for insufficiency of the evidence; (2) failing to instruct the jury on the lesser included offense of attempted first-degree sexual offense in File No. 08 CrS 57286; (3) excluding testimony that the complainant was \u201coverly dramatic,\u201d \u201cmanipulative,\u201d and \u201cattention seeking;\u201d (4) limiting the purposes for which the jury could consider certain extrajudicial statements by the complainant; (5) making reference to \u201cthe victim\u201d while instructing the jury; (6) denying his motion for an independent psychological evaluation of the complainant; and (7) ordering Defendant to enroll in lifetime satellite-based monitoring. After careful consideration of Defendant\u2019s challenges to the trial court\u2019s judgments in light of the record and the applicable law, we conclude that Defendant is entitled to a new trial in File No. 08 CrS 57286 and that the trial court\u2019s SBM order in File No. 08 CrS 57285 should be vacated and that that case should be remanded to the trial court for further proceedings not inconsistent with this opinion. Otherwise, we find no error in the trial court\u2019s judgment in File No. 08 CrS 57285.\nI. Factual Background\nA. Substantive Facts\n1. State\u2019s Evidence\nVanessa, who is Defendant\u2019s step-daughter, was bom on 19 April 2000. When Vanessa asked to use the family\u2019s home computer in June 2008, Defendant had her go into the bathroom, where he made her pull down her pants. At that point, Defendant stuck his \u201cdoodle\u201d in or on her bottom, which was where her \u201cpoop\u201d came out, and made her \u201csuck\u201d on his \u201cdoodle.\u201d According to Vanessa, similar incidents had occurred on other occasions. Vanessa claimed that Defendant made her suck on his \u201cdoodle\u201d at least \u201cone day each month.\u201d Vanessa had accused Defendant of engaging in similar behavior a year earlier, when the family lived in South Carolina.\nOn 4 August 2008, Vanessa told her mother that Defendant was doing things to her, including putting his \u201c \u2018doodle\u2019 on her bum.\u201d Eight days later, Vanessa\u2019s mother telephoned Sergeant Todd Marcum of the Mooresville Police Department to report Vanessa\u2019s allegations. On 14 August 2008, Sergeant Marcum interviewed Defendant, who denied having engaged in any improper behavior with Vanessa. On the same date, Vanessa told Captain Julie Gibson of the Iredell County Sheriff\u2019s Department that Defendant had put his penis in her \u201cbutt\u201d 50 times. In certain pictures that she drew during this interview, Vanessa depicted Defendant as putting his \u201cdoodle\u201d in her bottom and mouth.\nTammy Carroll, a sexual assault nurse examiner at Iredell Memorial Hospital, noted a small anal fissure, which is a tear or an erosion of skin caused by trauma, while examining Vanessa. According to Ms. Carroll, a penis \u201cinside a butt crack or ... on butt cheeks,\u201d \u201cconstipation,\u201d \u201ca large amount of diarrhea,\u201d or \u201cany type of other trauma\u201d could cause an anal fissure.\n2. Defendant\u2019s Evidence\nOn the day prior to the earlier occasion on which Vanessa had accused Defendant of molesting her, Vanessa was upset about being punished for wandering too far from home. When asked about her allegations against Defendant on the following day, Vanessa said that she \u201cdidn\u2019t really mean that\u201d and acknowledged that she was \u201cjust angry [and]... upset.\u201d Similarly, Vanessa threw a \u201ccomplete tantrum\u201d on 4 August 2010 because a family trip to an amusement park in Charlotte was cut short due to inclement weather. Vanessa had seen Defendant and her mother having sex and watching adult television and had been caught looking at adult magazines. Vanessa\u2019s mother claimed that Vanessa was not being \u201ctruthful\u201d or \u201cvery honest\u201d when she accused Defendant of sexually abusing her.\nB. Procedural History\nOn 13 October 2008, the Iredell County grand jury returned bills of indictment charging Defendant with two counts of first-degree sexual offense and one count of crime against nature. The charges against Defendant came on for trial before the trial court and a jury at the 24 May 2010 criminal session of the Iredell County Superior Court. At the conclusion of all the evidence, the State voluntarily dismissed the crime against nature charge. On 27 May 2010, the jury found Defendant guilty of both counts of first-degree sexual offense. As a result, the trial court sentenced Defendant to consecutive terms of 192 months to 240 months imprisonment based upon Defendant\u2019s convictions for two counts of first-degree sexual offense. In addition, the trial court ordered Defendant to enroll in SBM for the duration of his natural life. Defendant noted an appeal to this Court from the trial court\u2019s judgments.\nII. Legal Analysis\nA. Sufficiency of Evidence of Anal Penetration\nOn appeal, Defendant contends that the trial court erred by denying his motion to dismiss the first-degree sexual offense charge lodged against him in File No. 08 CrS 57286 on the grounds that the State failed to provide sufficient evidence of anal penetration. We disagree.\nWhen reviewing a challenge to the sufficiency of the evidence to support a conviction, this Court determines \u201cwhether [the State presented] substantial evidence (1) of each essential element of the offense charged and (2) that [the] defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citation omitted). \u201c[T]he trial court must examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State\u2019s case.\u201d State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (citation omitted), cert. denied, 537 U.S. 1005, 123 S. Ct. 495, 154 L. Ed. 2d 403 (2002).\nAccording to N.C. Gen. Stat. \u00a7 14-27.4(a)(l), \u201c[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act 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.\u201d A \u201csexual act\u201d includes \u201ccunnilingus, fellatio, analingus, or anal intercourse . . . [and] 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. \u201cAnal intercourse requires penetration of the anal opening of the victim by the penis[.]\u201d State v. DeLeonardo, 315 N.C. 762, 764, 340 S.E.2d 350, 353 (1986) (citation omitted). As a result, in order to prove Defendant\u2019s guilt of first-degree sexual offense in File No. 08 CrS 57286, the State was required to offer evidence tending to show that Defendant\u2019s penis penetrated Vanessa\u2019s anus. State v. Norman, 196 N.C. App. 779, 786, 675 S.E.2d 395, 400, disc. review denied, 363 N.C. 587, 683 S.E.2d 382-83 (2009).\nThe record contains contradictory evidence concerning the extent to which anal penetration actually occurred. Vanessa testified that Defendant\u2019s penis was between her \u201cbutt cheeks,\u201d \u201con\u201d or \u201cover\u201d her anus, and pressing on her anal opening. However, when asked if Defendant \u201cstuck ... his penis ... in a certain part of [her] body,\u201d Vanessa answered \u201cyes.\u201d In addition, Vanessa testified that Defendant was \u201cpushing his doodle in really, really hard, and for some reason I\u2019m very, very delicate, and he was pushing it really hard and it would make it feel very sore and stuff [a]nd sometimes it would feel like it would be bleeding.\u201d According to Ms. Carroll, Vanessa\u2019s anal fissure could have been caused by a penis being placed \u201cinside a butt crack or on a butthole or on butt cheeks\u201d or by \u201c[c]onstipation, a large amount of diarrhea, . . . irritable bowel syndrome . . . [or] any type of other trauma.\u201d Finally, a drawing that Vanessa made depicting the Defendant \u201cputting his doodle in [her] bottom\u201d was admitted into evidence.\nDefendant analogizes this case to State v. Hicks, 319 N.C. 84, 90, 352 S.E.2d 424, 427 (1987), in which the Supreme Court reversed a defendant\u2019s first-degree sexual offense conviction. In concluding that testimony that the defendant \u201cput his penis in the back of\u2019 the complainant did not establish the necessary penetration, the Supreme Court stated that, \u201c[g]iven the ambiguity of [the victim\u2019s] testimony as to anal intercourse, and absent corroborative evidence (such as physiological or demonstrative evidence),\u201d the evidence did not suffice to support a conviction. Id. On the other hand, in State v. Norman, 196 N.C. App. at 779, 675 S.E.2d at 395, we upheld the defendant\u2019s conviction against a sufficiency of the evidence challenge given that the complainant testified that the defendant \u201c[stuck] his ding-a-ling in my back or my bottom,\u201d Id. at 787, 675 S.E.2d at 400-01; responded affirmatively when asked if the defendant \u201cput [his ding-a-ling] in [the complainant\u2019s] butt. . . inside of it,\u201d Id. at 787, 675 S.E.2d at 401; and stated that \u201cit hurts when [Defendant] sticks his ding-a-ling in my front and in my back.\u201d Id. After carefully reviewing the record in this case, we believe that the testimony presented at trial is like that in Norman and unlike that in Hicks.\nAt its essence, Defendant\u2019s challenge to the sufficiency of the evidence to support his conviction for first-degree sexual offense in File No. 08 CrS 57286 rests upon a contention that Vanessa\u2019s testimony was \u201cambiguous\u201d and insufficiently credible. However, the weight and credibility of a witness\u2019 testimony are for the jury, and not this Court, to determine. State v. Moses, 350 N.C. 741, 767, 517 S.E.2d 853, 869 (1999), cert. denied, 528 U.S. 1124, 120 S. Ct. 951, 145 L. Ed. 2d 826 (2000). In this case, Vanessa stated on at least one occasion that Defendant\u2019s penis penetrated her anus. In addition, Ms. Carroll testified that Vanessa\u2019s anal fissure could have resulted from trauma to the anal area. Such testimony is sufficient, if credited by a jury, to support a finding of anal penetration. As a result, Defendant is not. entitled to relief on the basis of this contention.\nB. Evidentiary Issues\n1. Exclusion of Witness Stivenson\u2019s Testimony\nSecondly, Defendant contends that the trial court erred by excluding the testimony of Social Worker Erica Stivenson to the effect that, during therapy sessions, Vanessa was \u201coverly dramatic,\u201d \u201cmanipulative,\u201d and exhibited \u201cattention seeking behavior.\u201d We do not find Defendant\u2019s argument persuasive.\nMs. Stivenson, a Certified Licensed Social Worker, conducted \u201cplay therapy\u201d sessions with Vanessa. Ms. Stivenson testified that, while she was not qualified to provide a medical diagnosis, she could provide \u201cdiagnostic impressions . . . [relating to] what we suspect is going on with the individual and . . . what we\u2019re working towards treating and targeting.\u201d On voir dire, Ms. Stivenson testified that Vanessa exhibited \u201cacting out [], attention seeking [], and manipulative behaviors\u201d and that such behaviors suggested the existence of an underlying psychological issue for which Vanessa needed to be referred to a specialist. The trial court excluded Ms. Stivenson\u2019s testimony concerning whether Vanessa \u201c[had] any sort of mood swings or manipulative behavior or acting out or other matters that would cause [Stivenson] to want to send [Vanessa] to get a psychological evaluation\u201d and limited the scope of Ms. Stivenson\u2019s testimony to what she observed and heard.\nIn his brief, Defendant contends that Ms. Stivenson\u2019s testimony was admissible for the purpose of corroborating the testimony of Vanessa\u2019s mother to the effect that Vanessa was \u201cmanipulative\u201d and \u201cattention seeking.\u201d However, Defendant failed to cite any authority in support of this component of his argument. According to N.C.R. App. P. 28(b)(6), \u201c[t]he body of the argument . . . shall contain citations of the authorities upon which the appellant relies.\u201d As a result, Defendant is not entitled to appellate relief based on his contention that the challenged portion of Ms. Stivenson\u2019s testimony was admissible for corroborative purposes. Dunton v. Ayscue, _ N.C. App._, _, 690 S.E.2d 752, 755 (2010) (holding that the plaintiff\u2019s arguments were deemed \u201cabandoned\u201d given his failure to cite any authority in support of his position).\nSecondly, Defendant contends that Ms. Stivenson\u2019s testimony constituted admissible expert opinion testimony. N.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) provides, in pertinent part, that, \u201c[i]f 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 The admissibility of expert testimony hinges upon the expert\u2019s \u201cspecial expertise],] . . . that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.\u201d State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d 905, 911 (1978). Assuming that a proper foundation has been laid, an expert witness may testify concerning the profiles exhibited by sexually abused children and whether a particular child exhibits symptoms or characteristics consistent with such profiles. State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002) (per curiam) (citations omitted).\nDefendant never questioned Ms. Stivenson about the profiles of sexually abused children or whether Vanessa\u2019s behaviors were consistent with such profiles. On the contrary, Ms. Stivenson testified that she was not qualified to render a medical diagnosis and never made any specific medical diagnosis based upon Vanessa\u2019s behavior. As a result, Ms. Stivenson\u2019s characterizations of Vanessa\u2019s behavior did not relate to an expert opinion which Ms. Stivenson was qualified to deliver. See State v. Murphy, 100 N.C. App. 33, 39-40, 394 S.E.2d 300, 304 (1990) (upholding the admission of testimony by a clinical psychologist concerning behavior exhibited by sexually abused children and the extent to which these characteristics were exhibited by the complainant on the grounds that the witness was qualified to render such an opinion and that the challenged testimony could assist the jury in understanding the behavior patterns exhibited by sexually abused children). As a result, the trial court correctly determined that Ms. Stivenson was not entitled to \u201coffer any opinion as to medical treatment.\u201d\nFinally, Defendant contends that Ms. Stivenson\u2019s testimony constituted an admissible \u201cshorthand statement\u201d of fact concerning her \u201cobservations of [Vanessa] during the counseling sessions.\u201d Although Defendant emphasizes that \u201c[t]he defense was that [Vanessa] fabricated or exaggerated her claims of abuse\u201d and argues that the \u201cexcluded testimony would have furthered that defense\u201d by providing the \u201cjury [with] information from which it could determine whether or not [Vanessa] was telling the truth,\u201d the relevancy of this testimony hinged upon the extent to which it constituted an inadmissible commentary on Vanessa\u2019s credibility. State v. Hannon, 118 N.C. App. 448, 450, 455 S.E.2d 494, 496 (1995) (holding that the trial court erred by admitting testimony that \u201cthe victim was telling the truth on this particular occasion\u201d regardless of \u201cwhether we view her testimony this way[] or as an opinion on the prosecuting witness\u2019s credibility\u201d). Thus, we conclude that none of Defendant\u2019s challenges to the trial court\u2019s decision to exclude Ms. Stivenson\u2019s testimony that Vanessa exhibited \u201cacting out [], attention seeking [], and manipulative behaviors\u201d have merit.\n2. Vanessa\u2019s Statement to Ms. Stivenson\nIn addition, Defendant contends that the trial court erred by not admitting Vanessa\u2019s comment to the effect that \u201cI know [Defendant] wouldn\u2019t do it. I know he\u2019s coming home\u201d solely for corroborative purposes on the grounds that this statement was admissible for substantive purposes as either a statement made for the purpose of medical diagnosis or treatment or as an excited utterance. Once again, we fail to find Defendant\u2019s argument persuasive.\nAt trial, Ms. Stivenson testified that, during a 31 March 2009 \u201cplay therapy\u201d session, Vanessa became tearful and indicated that she \u201cmiss[ed Defendant] and want[ed] him to come home [so that] they [could] become a family again.\u201d In response, Ms. Stivenson told Vanessa that, if Defendant had done the \u201cthings [Vanessa] accused him of he wouldn\u2019t be coming home,\u201d leading Vanessa to reply, \u201cwell, I know he wouldn\u2019t do it. I know he\u2019s coming home.\u201d The trial court admitted Vanessa\u2019s statement subject to a limiting instruction that the jury could only consider this statement for the purpose of showing Vanessa\u2019s state of mind and not as \u201cevidence of any events that led to that then existing state of mind.\u201d\nAccording to well-established North Carolina law, statements made for the purpose of obtaining medical diagnosis or treatment do not constitute inadmissible hearsay. N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4). In evaluating whether an extrajudicial statement is admissible pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4), the trial court must determine that (1) \u201cthe declarant intended to make the statements at issue in order to obtain medical diagnosis or treatment\u201d and that (2) \u201cthe declarant\u2019s statements were reasonably pertinent to medical diagnosis or treatment.\u201d State v. Hinnant, 351 N.C. 277, 289, 523 S.E.2d 663, 670-71 (2000), cert. denied, 544 U.S. 982, 125 S. Ct. 1846, 161 L. Ed. 2d 737 (2005). In making such a determination, the trial court must consider \u201call objective circumstances of record surrounding the declarant\u2019s statement,\u201d including whether any person explained the medical purpose underlying the interview, whether any person explained the importance of giving truthful answers to the child, and whether the interview took place in a medical environment. Id. at 287-89, 523 S.E.2d at 669-71. The medical diagnosis exception does not render statements made to non-physicians after the receipt of initial medical treatment admissible because, \u201c[i]f the declarant is no longer in need of immediate medical attention, the motivation to speak truthfully is no longer present.\u201d Id. at 289, 523 S.E.2d at 670.\nWe are unable to conclude, in light of all the objective circumstances, that Vanessa understood that Ms. Stivenson was conducting the \u201cplay-therapy sessions\u201d for the purpose of providing medical diagnosis or treatment. The \u201cplay therapy\u201d sessions began more than two weeks after Vanessa\u2019s initial examination by Ms. Carroll, and were conducted at a battered women\u2019s shelter in a \u201cvery colorful\u201d room filled with \u201cboard games, art supplies, Play-Doh, dolls, blocks, cars, [and] all [other types] of things for . . . children to engage in\u201d rather than in a medical environment. See Hinnant, 351 N.C. at 290, 523 S.E.2d at 671. Although, Ms. Stivenson did emphasize that it was important for Vanessa to tell the truth, the record contains no indication that she ever told Vanessa that the \u201cplay therapy\u201d sessions served a medical purpose or that Vanessa understood that any of her statements might be used for diagnostic or treatment-related purposes. In addition, the record does not tend to show that the statement in question had any relevance to the provision of medical diagnosis or treatment, since Ms. Stivenson clearly admitted that she was not qualified to engage in such activities. As a result, the trial court did not err by refusing to admit Vanessa\u2019s statement pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4).\nA statement is admissible as an excited utterance if it \u201crelat[es] to a startling event or condition [and is] made while the declarant was under the stress of excitement caused by the event or condition.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2). \u201cIn order to fall within this hearsay exception, there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u201d State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985) (citation omitted). The determination as to whether a particular statement constitutes an excited utterance depends upon the surrounding facts and circumstances. See, e.g., State v. Guice, 141 N.C. App. 177, 201, 541 S.E.2d 474, 489 (2000), appeal dismissed, disc. review denied in part and allowed for other purpose in part, 353 N.C. 731, 551 S.E.2d 112-13 (2001), modified and aff\u2019d on remand, 151 N.C. App. 293, 564 S.E.2d 925 (2002).\nAfter examining the surrounding circumstances, we conclude that the trial court did not err by refusing to admit Vanessa\u2019s statement pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2). The record contains no description of Vanessa\u2019s behavior or mental state at the time of her conversation with Ms. Stivenson. For that reason, we cannot discern whether Vanessa was excited, startled, or under the stress of excitement at the relevant time. Although she had previously been \u201ctearful\u201d, there is no indication that Vanessa remained in such a state at the time that she made the statement in question. As a result, the record does not establish that this statement constituted an admissible excited utterance. See State v. Wilkerson, 363 N.C. 382, 417, 683 S.E.2d 174, 195-96 (2009) (holding that a particular statement was admissible as an excited utterance when the record tended to show that the declarant became visibly upset due to defendant\u2019s threats prior to making statement), cert. denied,__U.S._, 130 S. Ct. 2104, 176 L. Ed. 2d 734 (2010); State v. Coria, 131 N.C. App. 449, 452, 508 S.E.2d 1, 3 (1998) (holding that the declarant\u2019s statements were properly admitted as excited utterances given the trial court\u2019s finding that the declarant was \u201cvery excited and upset\u201d). As a result, neither of Defendant\u2019s efforts to establish the admission of Vanessa\u2019s statement for substantive purposes has merit.\nC. Reference to Vanessa as the \u201cVictim\u201d\nThirdly, Defendant contends that the trial court committed plain error by describing Vanessa as the \u201cvictim\u201d in the course of its instructions to the jury. We disagree.\nIn its jury instructions, the trial court repeatedly referred to Vanessa as the \u201cvictim.\u201d According to Defendant, these references constituted an improper expression of opinion in violation of N.C. Gen. Stat. \u00a7 15A-1222, which prohibits a trial judge from \u201cexpress[ing] . . . any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d As a result of Defendant\u2019s failure to object to the challenged instructions at trial, we must evaluate this claim utilizing a plain error standard of review. State v. Richardson, 112 N.C. App. 58, 66, 434 S.E.2d 657, 663 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 132 (1994). In order to establish plain error, an appealing party must show \u201c(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u201d State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations omitted).\nThe Supreme Court rejected a contention indistinguishable from the one that Defendant has advanced here in State v. McCarroll, 336 N.C. 559, 565-66, 445 S.E.2d 18, 22 (1994), reasoning that no plain error had been shown despite the delivery of similar instructions given the absence of any other indication that the trial court had expressed an impermissible opinion and the fact that the trial court properly placed the burden of proof on the State: In this case, as in McCarroll, the trial court properly placed the burden of proof on the State in its jury instructions. Moreover, the trial court did not engage in any other activity that tended to constitute an impermissible expression of opinion. On the contrary, the trial court specifically told the jury that \u201c[t]he law requires the presiding judge to be impartial\u201d and that it \u201cshould not infer from any statement I have made or question I have asked that any of the evidence is to be believed or disbelieved, that a fact has been proved, or what your findings ought to be.\u201d As a result, \u201c[w]e cannot hold that the reference to [Vanessa] as the victim was an error so basic and lacking in its elements that justice could not have been done.\u201d McCarroll, 336 N.C. at 566, 445 S.E.2d at 22.\nD. Independent Psychological Evaluation\nFourth, Defendant contends that the trial court erred by denying his pre-trial motion for an independent psychological evaluation of Vanessa. Defendant\u2019s argument lacks merit.\nOn 10 May 2010, Defendant filed a motion seeking an independent psychological and medical examination of Vanessa. Defendant sought the requested examination for the purpose of determining whether Vanessa understood that her statements would be used to prosecute the Defendant and whether a reactive attachment disorder might have affected Vanessa\u2019s ability to know what she was doing when she made her accusations against Defendant. The trial court denied Defendant\u2019s motion.\nIn his brief, Defendant candidly concedes that the trial court\u2019s ruling was consistent with existing North Carolina law. State v. Horn, 337 N.C. 449, 451-52, 446 S.E.2d 52, 53 (1994). Even so, Defendant contends that the trial court\u2019s ruling violated his federal and state constitutional rights to present a defense and to due process. Defendant has not, however, advanced any specific argument or cited any authority in support of this contention. As a result, Defendant is not entitled to appellate relief based on the denial of this motion.\nE. Failure to Submit Attempted First-Degree Sexual Offense\nFifth, Defendant contends that the trial court committed plain error by failing to instruct the jury concerning the issue of his guilt of attempted first-degree sexual offense in File No. 08 CRS 57286. Defendant\u2019s contention has merit.\n\u201cA trial court is only required to instruct the jury on a lesser included offense when there is evidence presented from which the jury could find that such offense was committed.\u201d State v. Stinson, 127 N.C. App. 252, 258, 489 S.E.2d 182, 186 (1997). \u201cThe determining factor is the presence of evidence to support a conviction of the lesser included offense.\u201d State v. Boykin, 310 N.C. 118, 121, 310 S.E.2d 315, 317 (1984) (citations omitted). An attempted first-degree rape instruction is \u201cwarranted when the evidence pertaining to the crucial element of penetration conflicts or when, from the evidence presented, the jury may draw conflicting inferences.\u201d State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986) (citations omitted), superseded by statute on other grounds, by N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b), as recognized in State v. Moore, 335 N.C. 567, 440 S.E.2d 797 (1994). In view of the fact that his trial counsel failed to request that an attempt issue be submitted to the jury, we must utilize the plain error standard of review in evaluating the merits of this claim. State v. Brunson, 187 N.C. App. 472, 477, 653 S.E.2d 552, 555 (2007).\nEven a cursory examination of the record reveals that the evidence concerning the issue of penetration was in conflict. Although Vanessa answered in the affirmative when asked if Defendant \u201cstuck ... his penis . . . in . . . her bottom,\u201d she also testified that Defendant placed his penis \u201con [her] butthole\u201d and that Defendant\u2019s penis \u201cwould be between my butt cheeks ... over my butthole or hole in my anus.\u201d When asked to clarify her testimony, Vanessa stated that \u201che would put his doodle between my butt cheeks and it will be sort of pressing on my butthole.\u201d Finally, Ms. Carroll testified that a \u201cpenis . . . inside a butt crack\u201d or \u201con a butthole or on butt cheeks\u201d could cause an anal fissure if \u201cenough vigor [is] pressed against the anus\u201d and that other types of trauma, such as \u201c[c]onstipation, a large amount of diarrhea, . . . irritable bowel syndrome . . . [or] any type of other trauma\u201d could have caused Vanessa\u2019s anal fissure as well.\nIn State v. Couser, 163 N.C. App. 727, 734, 594 S.E.2d 420, 425 (2004), this Court upheld the delivery of an attempt instruction in a case in which the complainant testified that she was not sure whether the defendant had penetrated her vagina, where she had told others that the defendant had attempted to rape her, and where the abrasions found on her vaginal opening were \u201cnot specific to, nor diagnostic of, sexual abuse.\u201d Similarly, in State v. Johnson, 317 N.C. at 436-37, 347 S.E.2d at 18-19, the Supreme Court held that an attempt instruction should have been given because the victim had made two statements stating that the defendant had attempted, but had been unable, to achieve penetration. We find Johnson and Couser controlling in this case. Although certain portions of Vanessa\u2019s testimony tended to show that anal penetration had occurred, her statements that Defendant put his penis \u201con\u201d or \u201cbetween my butt cheeks\u201d or that he \u201cpressed against\u201d her anus with his penis support an inference to the contrary. Moreover, although \u201cevidence that no trauma occurred to [the victim] is not sufficient to establish a conflict of evidence as to penetration,\u201d State v. Thomas, 187 N.C. App. 140, 146, 651 S.E.2d 924, 928 (2007), Ms. Carroll\u2019s testimony indicated that Vanessa\u2019s anal fissure could have resulted from attempted, as well as completed, penetration. As a result, a jury could rationally have found Defendant guilty of attempted first-degree sexual offense in File No. 08 CrS 57286. Moreover, given the sharp conflict in the evidence relating to the issue of Defendant\u2019s guilt, the importance of allowing the jury to consider all relevant issues prior to rendering a verdict, and the absence of any indication that Defendant opposed submission of an attempt issue, see State v. Walker, 167 N.C. App. 110, 117-18 605 S.E.2d 647, 653-54 (2004) (refusing to provide plain error relief in a case in which the defendant specifically opposed the submission of a lesser included offense), vacated in part on other grounds, 361 N.C. 160, 695 S.E.2d 750 (2006), we conclude that the trial court\u2019s failure to instruct the jury on attempted first-degree sexual offense constituted plain error, see State v. Collins, 334 N.C. 54, 62-63, 431 S.E.2d 188, 193 (1993) (holding that the trial court committed plain error by failing to instruct the jury concerning the issue of the defendant\u2019s guilt of attempted murder); see also State v. Clark, 201 N.C. App. 319, 327, 689 S.E.2d 553, 559 (2009) (holding that the trial court committed plain error by failing to instruct the jury on the issue of the defendant\u2019s guilt of assault on a government official), and that Defendant is entitled to a new trial in File No. 08 CrS 57286.\nF. SBM Order\nFinally, Defendant argues that the trial court erroneously required him to enroll in lifetime SBM. We agree.\n1. Appealability\nPrior to reaching the merits of Defendant\u2019s challenge to the trial court\u2019s SBM order, we must address the extent, if any, to which Defendant\u2019s appeal is properly before this Court. Defendant noted his appeal from the trial court\u2019s SBM order orally in open court. \u201c[0]ral notice pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court\u201d in a case arising from a trial court order requiring a litigant to enroll in SBM. State v. Brooks, _ N.C. App. __, _, 693 S.E.2d 204, 206 (2010). Instead, a defendant seeking to appeal an order requiring enrollment in SBM must note his or her appeal in writing pursuant to N.C. R. App. P. 3(a), with any failure to do so necessitating dismissal of the defendant\u2019s appeal. Id. Thus, we dismiss Defendant\u2019s appeal because of his failure to file a written notice of appeal from the trial court\u2019s SBM order.\nHowever, \u201c[t]his Court does have the authority pursuant to [N.C. R. App. R] 21(a)(1) to \u2018treat the purported appeal as a petition for writ of certiorari\u2019 and grant it in our discretion.\u201d Luther v. Seawell, 191 N.C. App. 139, 142, 662 S.E.2d 1, 3 (2008) (quoting State v. SanMiguel, 74 N.C. App. 276, 277-78, 328 S.E.2d 326, 328 (1985)). Our decision in Brooks was filed on 18 May 2010, which was the same day that Defendant\u2019s trial began. Defendant\u2019s SBM hearing occurred nine days after the filing of our opinion in Brooks and eleven days prior to the issuance of the Brooks mandate. Thus, \u201c[i]n the interest of justice, and to expedite the decision in the public interest,\u201d Brooks, _ N.C. App. at _, 693 S.E.2d at 206, we exercise our discretion to treat Defendant\u2019s appeal as a petition for the issuance of a writ of certiorari, issue the writ, and consider Defendant\u2019s challenges to the trial court\u2019s SBM order on the merits. See State v. Clayton, _ N.C. App. _, __, 697 S.E.2d 428, 431 (2010).\n2. Defendant\u2019s Eligiblitv for SBM\nN.C. Gen. Stat. \u00a7 14-208.40(a) subjects two categories of offenders with reportable convictions to SBM: (1) those qualifying for mandatory lifetime SBM based upon a determination that he or she is a sexually violent predator, a recidivist, or was convicted of an aggravated offense and (2) those who have committed an offense involving the physical, mental, or sexual abuse of a minor and, based upon an appropriate risk assessment, require the \u201chighest level of supervision and monitoring.\u201d N.C. Gen. Stat. \u00a7\u00a7 14-208.40(a)(l) and (2). In view of the fact that first-degree sexual offense is a \u201csexually violent offense\u201d as defined in N.C. Gen. Stat. \u00a7 14-208.6(5), Defendant was clearly convicted of a \u201creportable\u201d offense. However, the trial court\u2019s decision to the contrary notwithstanding, \u201cfirst-degree sexual offense pursuant to N.C. Gen. Stat. \u00a7 14-27.4(a)(l) does not qualify as an aggravated offense.\u201d State v. Treadway, _ N.C. App. _, _, 702 S.E.2d 335, 347-48 (2010), disc. review denied, 365 N.C. 195, 710 S.E.2d 35 (2011). As a result, the trial court erred by concluding that Defendant was subject to lifetime SBM by virtue of having been convicted of an \u201caggravated offense.\u201d\nAlthough the State concedes that first-degree sexual offense is not an \u201caggravated offense,\u201d it argues that this case should be remanded for a new hearing convened for the purpose of determining whether Defendant should be required to enroll in SBM for a period of years pursuant to N.C. Gen. Stat. \u00a7\u00a7 14-208.40A(d) and (e). State v. King, _ N.C. App. _, _, 693 S.E.2d 168, 172 (2010) (remanding the case in question for additional findings of fact concerning whether the defendant required the highest possible level of supervision and monitoring following a determination that the trial court had erred by ordering defendant to enroll in lifetime SBM). Given that the offense for which Defendant was convicted involved the physical, mental, or sexual abuse of a minor and given that the required risk assessment was never performed, we are unable to determine whether the State\u2019s contention that Defendant should be required to enroll in SBM for a term of years has merit. As a result, we reverse the trial court\u2019s order compelling Defendant to enroll in lifetime SBM and remand this case to the trial court for a proper risk assessment and a new SBM hearing.\nIII. Conclusion\nThus, for the reasons set forth above, we conclude that Defendant is entitled to a new trial in File No. 08 CrS 57286. On the other hand, we find no error in the trial court\u2019s judgment in File No. 08 CrS 57285. Finally, we vacate the trial court\u2019s SBM orders and remand File No. 08 CrS 57285 to the Iredell County Superior Court for further SBM-related proceedings not inconsistent with this opinion.\nNO ERROR IN PART, NEW TRIAL IN PART, REVERSED AND REMANDED IN PART.\nJudges McGEE and McCULLOUGH concur.\n. Vanessa is a pseudonym that will be used throughout this opinion for the purpose of protecting the complainant\u2019s privacy and for ease of reading.\n. We review the trial court\u2019s rulings concerning the admissibility of expert testimony at trial for an abuse of discretion. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citations omitted).\n. A trial court\u2019s determination concerning the extent to which an out-of-court statement constitutes inadmissible hearsay is subject to de novo review. State v. Miller, 197 N.C. App. 78, 87-88, 676 S.E.2d 546, 552, disc. review denied, 363 N.C. 586, 683 S.E.2d 216 (2009).\n. For the same reasons, we conclude that Defendant has failed to demonstrate that he received deficient representation because of he failure of his trial counsel to object to these references to the complainant as \u201cthe victim.\u201d See State v. Pratt, 161 N.C. App. 161, 165, 587 S.E.2d 437, 440 (2003).\n. As we have already noted, Defendant is entitled to a new trial in File No. 08 CrS 57286. For that reason, we vacate the trial court\u2019s order requiring Defendant to enroll in lifetime SBM based upon that conviction. Thus, the discussion in the text relates solely to the trial court\u2019s SBM order in File No. 08 CrS 57285.",
        "type": "majority",
        "author": "ERVIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Angenette R. Stephenson, for the State.",
      "Mark Montgomery, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DAVID ALLEN CARTER\nNo. COA11-36\n(Filed 1 November 2011)\n1. Sexual Offenses \u2014 first-degree\u2014motion to dismiss \u2014 sufficiency of evidence \u2014 anal penetration\nThe trial court did not err by denying defendant\u2019s motion to dismiss the first-degree sexual offense charge in 08 CRS 57286 based on alleged insufficient evidence of anal penetration. The testimony of the child victim and a sexual assault nurse examiner provided sufficient evidence.\n2. Evidence \u2014 social worker testimony \u2014 characterization of child sex abuse victim \u2014 overly dramatic, manipulative, and attention seeking behavior \u2014 not shorthand statement of fact\nThe trial court did not err in a first-degree sexual offense case by excluding the testimony of a social worker to the effect that during therapy sessions the child victim was overly dramatic, manipulative, and exhibited attention seeking behavior. Defendant failed to cite authority as required by N.C. R. App. P. 28(b)(6) to support his corroboration argument. Further, the social worker\u2019s characterizations of the child\u2019s behavior did not relate to an expert opinion which the social worker was qualified to deliver. Finally, it was not an admissible shorthand statement of fact.\n3. Evidence \u2014 hearsay\u2014medical diagnosis exception \u2014 state of mind \u2014 excited utterance\nThe trial court did not err in a first-degree sexual offense case by refusing to admit the child victim\u2019s comment to the effect that she knew defendant would not do it and that she knew he was coming home. It could not be concluded that the child understood that a social worker was conducting the play-therapy sessions for the purpose of providing medical diagnosis or treatment. Further, the record did not establish that the statement constituted an admissible excited utterance.\n4. Criminal Law \u2014 jury instructions \u2014 referring to child as victim \u2014 absence of any impermissible opinion\nThe trial court did not commit plain error in a first-degree sexual offense case by describing the child as the \u201cvictim\u201d during jury instructions given the absence of any other indication that the trial court had expressed an impermissible opinion and the fact that the trial court properly placed the burden of proof on the State.\n5. Appeal and Error \u2014 preservation of issues \u2014 failure to specifically argue \u2014 failure to cite authority\nAlthough defendant contended that the trial court erred in a first-degree sexual offense case by denying defendant\u2019s pretrial motion for an independent psychological evaluation of the child victim, defendant did not preserve this argument because he did not advance any specific argument or cite any authority in support of this contention.\n6. Sexual Offenses \u2014 attempted first-degree sexual offense\u2014 jury instruction \u2014 guilt\nThe trial court committed plain error by failing to instruct the jury concerning the issue of defendant\u2019s guilt of attempted first-degree sexual offense in 08 CRS 57286 given the sharp conflict in evidence relating to the issue of defendant\u2019s guilt, the importance of allowing the jury to consider all relevant issues prior to rendering a verdict, and the absence of any indication that defendant opposed submission of an attempt issue.\n7. Satellite-Based Monitoring \u2014 enrollment in lifetime satellite-based monitoring \u2014 first-degree sexual offense not an aggravating offense\nThe Court of Appeals treated defendant\u2019s appeal as a petition for writ of certiorari and concluded that the trial court erred by requiring defendant to enroll in lifetime satellite-based monitoring (SBM). First-degree sexual offense under N.C.G.S. \u00a7 14-27.4(a)(l) does not qualify as an aggravated offense. The case was remanded for a proper risk assessment and a new SBM hearing.\nAppeal by defendant from judgments entered 27 May 2010 by Judge W. David Lee in Iredell County Superior Court. Heard in the Court of Appeals 16 August 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Angenette R. Stephenson, for the State.\nMark Montgomery, for defendant-appellant."
  },
  "file_name": "0453-01",
  "first_page_order": 463,
  "last_page_order": 479
}