{ "id": 4103622, "name": "STATE OF NORTH CAROLINA v. PATRICIA ANN BLACK, Defendant", "name_abbreviation": "State v. Black", "decision_date": "2012-10-16", "docket_number": "No. COA11-1342", "first_page": "137", "last_page": "150", "citations": [ { "type": "official", "cite": "223 N.C. App. 137" } ], "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": "193 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "75", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "282 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565099 ], "year": 1972, "pin_cites": [ { "page": "339-40", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0334-01" ] }, { "cite": "368 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "625" }, { "page": "625" }, { "page": "626" }, { "page": "626" } ], "opinion_index": 0 }, { "cite": "322 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517272 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0452-01" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "689 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150979 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/363/0826-01" ] }, { "cite": "681 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "508", "parenthetical": "finding plain error when child protective services investigator testified that agency's investigation uncovered evidence indicating that alleged abuse and neglect did occur" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170662 ], "year": 2009, "pin_cites": [ { "page": "122", "parenthetical": "finding plain error when child protective services investigator testified that agency's investigation uncovered evidence indicating that alleged abuse and neglect did occur" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0115-01" ] }, { "cite": "711 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "789", "parenthetical": "holding that trial court improperly admitted testimony by DSS social worker that DSS had substantiated claim that sex offense occurred" } ], "opinion_index": 0 }, { "cite": "212 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4078557 ], "year": 2011, "pin_cites": [ { "page": "664", "parenthetical": "holding that trial court improperly admitted testimony by DSS social worker that DSS had substantiated claim that sex offense occurred" } ], "opinion_index": 0, "case_paths": [ "/nc-app/212/0661-01" ] }, { "cite": "132 S. Ct. 1541", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2012, "opinion_index": 0 }, { "cite": "182 L. Ed. 2d 176", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2012, "opinion_index": 0 }, { "cite": "711 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "153", "parenthetical": "holding that trial court's error was harmless and, therefore, defense counsel's action did not constitute ineffective assistance" } ], "opinion_index": 0 }, { "cite": "365 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154419 ], "year": 2011, "pin_cites": [ { "page": "147-48", "parenthetical": "holding that trial court's error was harmless and, therefore, defense counsel's action did not constitute ineffective assistance" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0103-01" ] }, { "cite": "732 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2012, "pin_cites": [ { "page": "566" }, { "page": "568, 2012" }, { "page": "568" }, { "page": "569" } ], "opinion_index": 0 }, { "cite": "365 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "year": 2012, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "367", "parenthetical": "\"Furthermore, although [the expert medical witness] was permitted to testify as to her diagnosis of physical and sexual abuse of the victim, this testimony was later struck and the jury instructed to disregard it. Thus, any error with respect to that testimony was harmless.\"" } ], "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": "305 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "537" } ], "opinion_index": 0 }, { "cite": "309 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763016 ], "year": 1983, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0158-01" ] }, { "cite": "674 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "463", "parenthetical": "\"[T]he plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error.\"" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165972 ], "year": 2009, "pin_cites": [ { "page": "194", "parenthetical": "\"[T]he plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0180-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "789", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "year": 2002, "pin_cites": [ { "page": "266-67", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "723 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "334", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154240 ], "year": 2012, "pin_cites": [ { "page": "518", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0506-01" ] } ], "analysis": { "cardinality": 1111, "char_count": 30491, "ocr_confidence": 0.732, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13135186646016814 }, "sha256": "f15435df86da098143f00257945a6aab0939d87f68360899f0a25e3cb866e4f6", "simhash": "1:d386d42495460dfa", "word_count": 4896 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PATRICIA ANN BLACK, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Patricia Ann Black appeals from judgments entered on her convictions of various sex offenses involving three alleged victims. On appeal, she primarily contends that the trial court committed plain error in allowing one of the State\u2019s expert witnesses to give testimony improperly vouching for the credibility of one of the prosecuting witnesses. Although we agree that admission of certain portions of the testimony was error, we hold that defendant has failed to demonstrate sufficient prejudice to establish plain error.\nFacts\nThe State\u2019s evidence tended to show the following facts. Defendant and her husband, Jimmy Black, were the parents of two children, \u201cDeborah\u201d and \u201cJohn.\u201d Deborah is mentally retarded with an IQ of about 60. Deborah testified that when she was 12 years old, her father had sexual intercourse with her. Deborah told defendant what had happened, but her mother did nothing. Mr. Black had sexual intercourse with her again when she was 14 years old. In addition, on another occasion, Mr. Black watched Deborah take a shower even though she asked him to leave. Defendant and Mr. Black told Deborah not to tell anyone what Mr. Black had done, or they would go to jail.\nDefendant shaved Deborah\u2019s pubic hair until sometime after she turned 14 years old. Defendant claimed that the shaving took place until Deborah was 11 or 12 because Deborah was taking growth hormones that caused very thick pubic hair. The doctor\u2019s records, however, showed that the growth hormones were stopped when Deborah was eight years old, and other relatives confirmed that defendant was still shaving Deborah when she was 14. Additionally, defendant gave Deborah a purple vibrator to use to masturbate and told others that Deborah had been masturbating since she was seven or eight years old.\nDeborah confided to her cousin Mary about what her father had done. Mary and Deborah went to school together. Deborah told Mary: \u201c \u2018My daddy\u2019s been touching me with his stuff.\u2019 \u201d When Mary told defendant and Mr. Black what Deborah had said, they told Mary it was not true, and, then, according to Mary, they \u201cgot on [Deborah] for saying that it was.\u201d\nFrom mid-2007 to August 2008, Mary spent 150 to 200 nights with Deborah\u2019s family. On Mary\u2019s 13th birthday, in July 2007, Mary spent the night at the Black family\u2019s house. After the other children had gone to bed, defendant and Mr. Black asked Mary to have sex with the two of them. Although she initially refused, Mr. Black threatened her, and she agreed.\nDefendant, Mr. Black, and Mary went to the Blacks\u2019 bedroom where defendant touched Mary\u2019s breasts and inserted two fingers in Mary\u2019s vagina. Mr. Black engaged in sexual intercourse with both defendant and Mary. On subsequent occasions, Mary smoked marijuana and drank beer with defendant and Mr. Black. They also gave Mary Xanax, which she identified as a blue pill. Mary would wake up in the morning between them unable to remember what had happened. Deborah confirmed that when she got up, she sometimes saw Mary sleeping with defendant.\nA third girl, Sarah, who was also 13, went to middle school with Deborah. Sarah spent the night at the Blacks\u2019 home two or three times. During the first visit, defendant and Mr. Black asked her if she was bisexual, and she said \u201c[y]es.\u201d On her second visit, defendant and Mr. Black gave her alcohol to drink and a blue pill. She later got up after everyone had gone to bed and found Mr. Black watching pornography in the living room. After Mr. Black threatened to kill Sarah, she agreed to have sex with him. He took her behind the kitchen counter, told her to take her pants off, and engaged in sexual intercourse with her.\nIn addition, defendant took a shower with Sarah and, afterwards, Sarah had a \u201cthreesome\u201d with defendant and Mr. Black, during which defendant touched Sarah\u2019s vagina with her tongue and Mr. Black had sexual intercourse with Sarah. Subsequently, defendant and Mr. Black got angry when Sarah said she would not engage in the sexual conduct anymore, and they would not let her see Deborah.\nThe Department of Social Services (\u201cDSS\u201d) initiated an investigation in August 2008 when it received a report that Sarah had made allegations against defendant and Mr. Black. Sandra Huneycutt, a DSS social worker, and Jim Etters, a detective with the Lincoln County Sheriffs Department, interviewed Sarah. Later, Sarah was interviewed on videotape at the Child Advocacy Center.\nAfter questioning Sarah, Ms. Huneycutt and Detective Etters went to the Blacks\u2019 home. When they arrived, defendant, Mr. Black, John, Deborah, and Mary were all there. Defendant, Deborah, and Mary were all wearing matching tank tops from \u201cHooters.\u201d Defendant and Mr. Black were told that DSS had received a report involving the two of them. Before defendant and Mr. Black heard any details of the report, defendant told them that she suspected that Sarah had made the allegations, and defendant then called Sarah a \u201cwhore and ... a slut.\u201d When asked about her drug use, defendant indicated she had a prescription for Xanax, which is a blue pill.\nAfter Mr. Black was arrested, Ms. Huneycutt interviewed Mary. Mary told Ms. Huneycutt about what had happened to her and also that Deborah had confided in her about sexual incidents with her father. Mary had not previously reported the incidents to anyone because Mr. Black had threatened that she would come up missing. She later told her father (Mr. Black\u2019s cousin) about what had happened, but did not tell him all the details because he had a temper.\nMs. Huneycutt then went back to the Blacks\u2019 house and talked to them again about Deborah. They denied that anything had occurred, but cooperated in finding another place for Deborah and John to stay. Deborah and John went to stay with their paternal grandmother, Betty Black. The grandmother subsequently told Ms. Huneycutt that she did not believe Deborah\u2019s story and that Deborah could no longer stay with her. Deborah then went to stay with Kathy Black, her paternal great-aunt, for two months. She returned to her grandmother for six months, but was placed in foster care in May 2009.\nIn September 2008, Deborah began seeing Nadia Antoszyk, a licensed clinical social worker. During therapy, Deborah used dolls to show what had happened to her. Deborah expressed love for her parents and missed them. She was sad about being cut off from her family and felt blamed for her parents being in jail. Her grandmother told Deborah often that she did not believe Deborah, she discouraged Deborah from talking to Ms. Antoszyk, and threatened Deborah that she would be removed, making Deborah anxious and conflicted by loyalty to her family. Deborah had imaginary friends and characteristics consistent with child abuse \u2014 anger, social withdrawal, frequent masturbation, and behavior that was sexually provocative.\nOnce Deborah was in a foster home and new school, her anxiety-level and ability to pay attention improved. The number of imaginary friends she had decreased, and Deborah did not mention them as often. While Deborah had recanted at times and said she had lied, once she was in a foster home, she did not make any other statements suggesting that she had lied about her parents.\nDefendant was indicted for first degree statutory rape/sex offense with a 14 year old, felony child abuse for aiding and abetting Mr. Black in engaging in sexual intercourse with Deborah, felony child abuse inflicting serious injury, incest with a 14 year old for aiding and abetting Mr. Black in engaging in carnal intercourse with Deborah, and indecent liberties with a child by aiding and abetting Mr. Black.\nDefendant was also indicted with regard to Mary for conspiracy to commit incest with a 13, 14, or 15 year old, conspiracy to commit statutory rape/sexual offense with a 13, 14, or 15 year old, statutory rape/sexual offense of a 13,14, or 15 year old by aiding and abetting Mr. Black in engaging in vaginal intercourse with Mary, statutory rape/sexual offense with a 13,14, or 15 year old for engaging in a sexual act with Mary, indecent liberties with a child, and first degree kidnapping.\nFor offenses against Sarah, defendant was indicted for conspiracy to commit statutory rape/sexual offense with a 13, 14, or 15 year old, two counts of statutory rape/sexual offense with a 13, 14, or 15 year old by aiding and abetting Mr. Black to engage in a sexual act with Sarah, two counts of statutory rape/sexual offense with a 13, 14, or 15 year old for engaging in a sexual act with Sarah, indecent liberties with a child, and first degree kidnapping.\nAt trial, defendant testified on her own behalf and denied the allegations. She also presented evidence that tended to show that Deborah stood up in church on one occasion and, while crying, said that she had lied and told her parents that she was sorry. Defendant presented other evidence that Deborah told a cousin that her mother did not do anything and that Nadia Antoszyk was trying to put words in her mouth. John testified that he had seen Ms. Antoszyk several times, but stopped because she called his family \u201cdysfunctional\u201d and tried to put words in his mouth, making him angry. Defendant also presented evidence that Deborah told her grandmother that she hated meeting with Ms. Antoszyk and that Ms. Antoszyk would make her say things she did not want to say. According to defendant\u2019s witnesses, Deborah told her grandmother, including in a family therapy session, that she had lied and put her mother and father in jail. In addition, defendant presented evidence that Deborah had said that the devil raped her and that Deborah hit her grandmother and shoved her into a bookcase.\nDefendant pointed out differences in Mary\u2019s and Sarah\u2019s testimony at trial from their testimony during a DSS proceeding. Defendant elicited testimony that Sarah was living in a group home for out-of-control behavior and missing school. Defendant also presented evidence that Deborah was not allowed to see Sarah anymore because Deborah had told them that Sarah was showing her breasts on the internet and wanted Deborah to do that too. In addition, when defendant had Sarah kicked out of a pool, Sarah threatened, \u201cBitch, I will put you both in jail.\u201d\nDefendant was convicted of three counts of aiding and abetting statutory rape, two counts of conspiracy to commit statutory rape, two counts of first degree sexual offense, two counts of first degree kidnaping, three counts of taking indecent liberties with children, and two counts of felony child abuse. The trial court arrested judgment on the two counts of first degree kidnapping and sentenced defendant for second degree kidnapping. The trial court also arrested judgment as to one count of felony child abuse and dismissed the incest of a child charge. Defendant timely appealed to this Court from the judgments imposed based on the convictions.\nI\nDefendant first contends on appeal that the trial court committed plain error in admitting certain portions of the testimony of the State\u2019s expert witness, Nadia Antoszyk. Defendant argues that Ms. Antoszyk improperly vouched for Deborah\u2019s credibility.\nAs our Supreme Court has observed:\nthe plain error standard of review applies on appeal to unpreserved instructional or evidentiary error. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings!)]\nState v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).\nWith respect to expert witness testimony in sex offense cases, our Supreme Court has held:\nIn 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) (internal citations omitted).\nIn this case, social worker Nadia Antoszyk was allowed to testify as an expert in the field of diagnosing and treating mental health disorders and child and family therapy. Because we are reviewing for plain error, we consider separately each part of Ms. Antoszyk\u2019s testimony that defendant challenges. See State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 463 (2009) (\u201c[T]he plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error.\u201d).\nDefendant first points to Ms. Antoszyk\u2019s testimony that \u201cI do not think that she is lying. I think it truly, truly happened.\u201d The trial court, on its own motion, struck the testimony from the record and instructed the jury to disregard the offending statements. As our Supreme Court has observed, \u201c[i]f an unresponsive answer produces irrelevant or incompetent evidence, the evidence should be stricken and withdrawn from the jury.\u201d State v. Keen, 309 N.C. 158, 162, 305 S.E.2d 535, 537 (1983). Such action is sufficient to alleviate any prejudice suffered by defendant. State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987) (\u201cFurthermore, although [the expert medical witness] was permitted to testify as to her diagnosis of physical and sexual abuse of the victim, this testimony was later struck and the jury instructed to disregard it. Thus, any error with respect to that testimony was harmless.\u201d). Therefore, defendant has failed to show plain error as to this testimony.\nDefendant more persuasively challenges subsequent testimony of Ms. Antoszyk. In response to a question about Deborah\u2019s treatment, Ms. Antoszyk answered in part: \u201cFor a child, that means . . . being able to, um, come to terms with all the issues that are consistent with someone that has been sexually abused.\u201d In addition, Ms. Antoszyk testified on multiple occasions regarding her conclusion that the sexual abuse experienced by Deborah started at a young age, perhaps age seven, and continued until she was removed from the home by DSS.\nFurther, when asked why Deborah had lashed out at her grandmother, she explained that the behavior was \u201cpart of a history of a child that goes through sexual abuse.\u201d With respect to her concerns about the adequacy of the grandmother\u2019s caregiving, Ms. Antoszyk testified: \u201cShe had every opportunity to get the education and the information to become an informed parent about a child that is sexually abused.\u201d And, when asked if it was reasonable for the grandmother to have some doubt as to Deborah\u2019s story given Deborah\u2019s recanting on multiple occasions, Ms. Antoszyk responded: \u201cWith me, there was no uncertainty.\u201d\nIn State v. Towe, 365 N.C. 56, 60, 732 S.E.2d 564, 566, (2012), our Supreme Court reviewed the admission of expert testimony in a sex offense trial that \u201c \u2018approximately 70 to 75 percent of the children who have been sexually abused have no abnormal findings, meaning that the exams are either completely normal or very non-specific findings, such as redness\u2019 \u201d and that the expert would place the victim in that category of children despite the absence of physical evidence of sexual abuse. The Court noted that \u201cthe only bases for [the expert\u2019s] conclusory assertion that the victim had been sexually abused were the victim\u2019s history as relayed to [the expert] by the victim\u2019s mother and the victim\u2019s statements to [another testifying expert] that were observed by [the expert].\u201d Id. at 62, 732 S.E.2d at 568, 2012.\nThe Court concluded that the evidence relied upon by the expert was, under Standi, \u201cstanding alone . . . insufficient to support an expert opinion that a child was sexually abused.\u201d Id. Consequently, the expert\u2019s \u201ctestimony was improper when she stated that the victim fell into the category of children who had been sexually abused but showed no physical symptoms of such abuse.\u201d Id.\nWe cannot meaningfully distinguish the testimony of Ms. Antoszyk we have quoted above from the testimony found improper by the Supreme Court in Towe. Each time, Ms. Antoszyk effectively asserted that Deborah was a sexually abused child even though the State had presented no physical evidence of abuse. The testimony was, therefore, improperly admitted. The question remains, however, whether the admission of the testimony rises to the level of plain error.\nIn Towe, the Supreme Court, when finding plain error, pointed out that because the only direct evidence against the defendant was the victim\u2019s testimony, the \u201ccase turned on the credibility of the victim.\u201d Id. at 63, 732 S.E.2d at 568. After noting that the victim\u2019s statements regarding the incidents at issue were not \u201centirely consistent,\u201d the Court reviewed the State's extensive examination regarding the expert\u2019s credentials. Id. The Court then concluded: \u201cIn light of [the expert\u2019s] unquestioned stature in the fields of pediatric medicine and child sexual abuse, and her expert opinion that, even absent physical symptoms, the victim had been sexually abused, we are satisfied that [the expert\u2019s] testimony stilled any doubts the jury might have had about the victim\u2019s credibility or defendant\u2019s culpability, and thus had a probable impact on the jury\u2019s finding that defendant is guilty.\u201d Id. at 64, 732 S.E.2d at 569.\nHere, although Deborah, who is mentally retarded, recanted her accusations at times prior to being removed from the influence of her family and placed in foster care, her testimony at trial was consistent with her pre-trial reports of sexual abuse. The State also presented other circumstantial evidence corroborating her allegations, including defendant\u2019s providing Deborah as a child with a vibrator, defendant\u2019s admission that Deborah started masturbating at age seven or eight, and defendant\u2019s shaving Deborah\u2019s pubic hair. The State countered defendant\u2019s explanation offered at trial for that behavior with defendant\u2019s admissions to DSS employees, contrary testimony from other defense witnesses, and Deborah\u2019s medical records.\nIn addition, Deborah did not provide the only direct evidence against defendant. Mary and Sarah also testified regarding defendant\u2019s participation in sex offenses committed against them. While some details of their descriptions of what occurred varied over time, their descriptions of the sex offenses remained essentially consistent, and the two girls testified to very similar experiences. Further, Ms. Antoszyk did not examine or treat either Mary or Sarah, and her testimony did not vouch for their credibility.\nOf equal importance is the difference in how the expert in this case was treated at trial compared to the expert in Towe. The Towe expert appeared \u2014 without dispute by the defense \u2014 as a universally-recognized expert in child sex abuse consulted regularly by other doctors and health care providers. Here, the heart of the defense\u2019s case as to the charges involving Deborah was that Ms. Antoszyk had \u201cput words in\u201d Deborah\u2019s mouth.\nDefendant presented witnesses who testified that Deborah specifically told them that Ms. Antoszyk was putting words in her mouth and trying to get her to say things she did not want to say. In addition, Deborah\u2019s brother testified that he stopped going to see Ms. Antoszyk because she was trying to put words in his mouth. Defendant also presented the director of a program providing services to people with special needs who testified about how Ms. Antoszyk had upset Deborah and her brother by telling them their family was \u201cdysfunctional.\u201d\nDefendant combined this evidence with witnesses testifying that Deborah publicly stated that she had lied about her parents and testimony from a teacher and a counselor that Deborah had never mentioned anything to them. Further, when questioning Ms. Antoszyk, defense counsel suggested that it was her intention to have Deborah removed completely from the Black family: \u201cBut you wanted her removed from the Black family entirely from about the very beginning, didn\u2019t you?\u201d\nIn sum, the defense presented a direct assault on Ms. Antoszyk\u2019s role in the case. Ms. Antoszyk\u2019s insistence that Deborah was sexually abused and believable was immaterial to the defense because the defense was contending that Ms. Antoszyk was the moving force behind Deborah\u2019s accusations by telling Deborah what to say. Given this vigorous defense, when combined with the direct evidence from Mary and Sarah and the corroborating evidence as to Deborah\u2019s allegations, we cannot conclude that the jury would probably have reached a different verdict in the absence of Ms. Antoszyk\u2019s improper testimony. Defendant has, therefore, failed to demonstrate plain error.\nAlthough defendant also argues that she was denied effective assistance of counsel when her attorney failed to object to Ms. Antoszyk\u2019s testimony, because defendant failed to show sufficient prejudice for plain error, she also failed to establish prejudice for purposes of her ineffective assistance of counsel claim. State v. Phillips, 365 N.C. 103, 147-48, 711 S.E.2d 122, 153 (2011) (holding that trial court's error was harmless and, therefore, defense counsel\u2019s action did not constitute ineffective assistance), cert. denied,_U.S._, 182 L. Ed. 2d 176, 132 S. Ct. 1541 (2012).\nII\nDefendant next contends that the trial court committed plain error in admitting the following testimony from Ms. Huneycutt, the DSS social worker:\nQ. Tell me about court \u2014 last year in court. What \u2014 what kind of court' was there last year? What was the purpose of that court?\nA. . . . [I]n May of 2009, it was determined that [Deborah] did need to come into custody of Lincoln County DSS. So at that point in time, there was an adjudication for the court, for DSS court.\nQ. Which . . . had to do with what?\nA. Which had to do \u2014 ... the petition was filed,... that [Deborah] was neglected, sexually abused and a dependent.\nDefendant argues that this testimony should have been excluded under State v. Martinez, 212 N.C. App. 661, 664, 711 S.E.2d 787, 789 (2011) (holding that trial court improperly admitted testimony by DSS social worker that DSS had substantiated claim that sex offense occurred), and State v. Giddens, 199 N.C. App. 115, 122, 681 S.E.2d 504, 508 (2009) (finding plain error when child protective services investigator testified that agency\u2019s investigation uncovered evidence indicating that alleged abuse and neglect did occur), aff\u2019d per curiam, 363 N.C. 826, 689 S.E.2d 858 (2010).\nIt is, however, well established that \u201c[w]here one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\u201d State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981) (emphasis added). Here, before Ms. Huneycutt testified, defendant, when cross-examining both Mary and Sarah, had established that they had testified previously in a 2009 DSS hearing and asked about their prior testimony, pointing out inconsistencies.\nIt was not improper, given this cross-examination, for the State to ask the DSS social worker to explain what that 2009 hearing was and why it took place. Accordingly, the admission of Ms. Huneycutt\u2019s testimony was not plain error.\nIll\nFinally, defendant contends that the trial court committed plain error by allowing the prosecutor to use extrinsic evidence to impeach defendant with prior inconsistent statements on collateral matters. On cross-examination, defendant denied that she had told anyone (1) that Deborah began masturbating at an early age, (2) that she had given Deborah a vibrator, or (3) that she had taught Deborah how to masturbate. The State called Ms. Huneycutt in rebuttal to testify that defendant had told her that Deborah had started masturbating at age seven or eight and that defendant had said that she gave Deborah a vibrator to use in the privacy of her room.\nIn support of her contention, defendant relies upon State v. Williams, 322 N.C. 452, 368 S.E.2d 624 (1988), in which the defendant\u2019s brother had testified on behalf of the defendant. During cross-examination by the State, the brother denied telling his probation officer that the defendant had admitted the crime. Id. at 453, 368 S.E.2d at 625. On rebuttal, the State called the brother\u2019s probation officer and a second witness to testify that the brother had in fact told the officer that the defendant admitted the crime. Id. at 454, 368 S.E.2d at 625.\nOur Supreme Court held that\n[the brother\u2019s] testimony concerning what he did or did not tell his probation officer was collateral to the issues in the case; therefore, it was improper to impeach him on this point by offering the testimony of [other witnesses], [The witnesses\u2019] testimony was not offered to prove that defendant had, in fact, made the alleged statements to [the brother]. Rather, the testimony was offered solely to contradict [the brother\u2019s] testimony that he had not told [the probation officer] that defendant made these statements. While the substance of those statements and whether defendant made them would be material, whether [the brother] had told anyone about defendant\u2019s statements is clearly collateral.\nId. at 456, 368 S.E.2d at 626.\nWilliams addresses impeachment. Under the hearsay rule, N.C.R. Evid. 801, an out-of-court statement is inadmissible if offered for the truth of the matter asserted. However, as the Court acknowledged in Williams, a witness may be impeached by confronting him with prior out-of-court statements inconsistent with his trial testimony. Williams, 322 N.C. at 455, 368 S.E.2d at 626. It is well established that \u201c[p]rior statements of a witness which are inconsistent with his present testimony are not admissible as substantive evidence because of their hearsay nature. Even so, such prior inconsistent statements are admissible for the purpose of impeachment.\u201d State v. Mack, 282 N.C. 334, 339-40, 193 S.E.2d 71, 75 (1972) (internal citations omitted).\nThis case does not, however, involve prior inconsistent statements admitted solely to impeach the witness. Instead, defendant\u2019s prior statements to Ms. Huneycutt were admissible as substantive evidence. Rule 801(d) of the Rules of Evidence provides: \u201cA statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement, in either his individual or a representative capacity . . . .\u201d Therefore, defendant\u2019s statements to Ms. Huneycutt constituted admissions that were admissible as substantive evidence, and Williams does not apply. The trial court properly admitted Ms. Huneycutt\u2019s rebuttal testimony.\nNo error.\nJudges ELMORE and THIGPEN concur.\n. Throughout this opinion, the pseudonyms \u201cDeborah,\u201d \u201cJohn,\u201d \u201cMary,\u201d and \u2018Sarah\u201d are used to protect the identities of minor witnesses and for ease of reading.\n. Defendant has also cited other testimony that we believe does not vouch for Deborah\u2019s credibility, but rather falls in line with permissible testimony that Deborah exhibited symptoms or characteristics consistent with the profiles of sexually abused children.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.", "Mark Montgomery for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PATRICIA ANN BLACK, Defendant\nNo. COA11-1342\n(Filed 16 October 2012)\n1. Appeal and Error \u2014 plain error review \u2014 not cumulative\nUnder plain error review, each of the challenged parts of an expert\u2019s testimony was reviewed separately; the plain error rule is not applied cumulatively.\n2. Evidence \u2014 expert testimony \u2014 opinion on victim\u2019s credibility\nThere was no plain error in a prosecution for various sexual offenses where an expert social worker testified that she thought the victim was telling the truth and the trial court immediately struck the testimony from the record and instructed the jury to disregard it. Such action was sufficient to alleviate any prejudice.\n3. Evidence \u2014 expert opinion \u2014 credibility of victim \u2014 not material\nThere was no plain error in a prosecution for various sexual offenses where an expert social worker essentially asserted that the victim was a sexually abused child even though the State presented no physical evidence of physical abuse. The expert\u2019s opinion that the abuse occurred and that the victim was believable was not material considering other evidence and contentions that the expert told the victim what to say while treating her. It was unlikely that the jury would have reached a different result without the challenged evidence.\n4. Constitutional Law \u2014 effective assistance of counsel\nDefendant did not establish sufficient prejudice for an ineffective assistance of counsel claim where there was insufficient evidence of prejudice for plain error.\n5. Evidence \u2014 testimony about prior DSS hearing \u2014 explanation following cross-examination\nThere was no plain error in a prosecution for various sexual offenses in admitting testimony from a social worker about a prior hearing on a neglect and sexual abuse petition by DSS involving one of the victims in this prosecution. Prior to the challenged testimony, defendant cross-examined two other victims about their testimony at the the Department of Social Services (DSS) hearing and it was not improper for the State to ask the DSS social worker to explain what that prior hearing was and why it took place.\n6. Evidence \u2014 admissions\u2014not extrinsic impeachment evidence\nThere was no plain error in a prosecution for various sexual offenses in admitting statements made by defendant to a social worker because the testimony constituted admissions admissible as substantive evidence rather than extrinsic impeachment evidence.\nAppeal by defendant from judgments entered 17 May 2011 by Judge Richard D. Boner in Lincoln County Superior Court. Heard in the Court of Appeals 5 April 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.\nMark Montgomery for defendant-appellant." }, "file_name": "0137-01", "first_page_order": 147, "last_page_order": 160 }