{ "id": 4221662, "name": "STATE OF NORTH CAROLINA v. RALPH EUGENE FRADY", "name_abbreviation": "State v. Frady", "decision_date": "2013-08-06", "docket_number": "No. COA12-1375", "first_page": "682", "last_page": "687", "citations": [ { "type": "official", "cite": "228 N.C. App. 682" } ], "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": "354 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "533", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169578 ], "year": 1987, "pin_cites": [ { "page": "11", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0001-01" ] }, { "cite": "365 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521188 ], "year": 1988, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0212-01" ] }, { "cite": "571 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511280 ], "year": 2002, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0428-01" ] }, { "cite": "563 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "598", "parenthetical": "citation omitted" }, { "page": "598", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079747 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "52", "parenthetical": "citation omitted" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0046-01" ] } ], "analysis": { "cardinality": 603, "char_count": 11839, "ocr_confidence": 0.739, "pagerank": { "raw": 7.014945946329735e-08, "percentile": 0.4235171625836101 }, "sha256": "40b64edd1e27f495333c964f4c18c33fe68ddadcad0524a601c4f3a29e0d77e6", "simhash": "1:47afda757ab19cd6", "word_count": 1882 }, "last_updated": "2023-07-14T22:18:27.138557+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and DILLON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RALPH EUGENE FRADY" ], "opinions": [ { "text": "ELMORE, Judge.\nRalph Eugene Frady (defendant) was found guilty of first degree sexual offense with a child and of one count of taking indecent liberties with a child. On 27 April 2012, the trial court sentenced defendant as a prior record level I to a minimum of 192 and a maximum of 240 months imprisonment. From this conviction and sentence, defendant appeals. After careful consideration, we order a new trial.\nI. Background\nAt trial, the State presented the following evidence: On 31 July 2010, defendant, a Terminix technician, went to Diane Moore\u2019s residence to fix a toilet in the basement. Moore had a contract for pest control through Terminix, and defendant had been assigned to Moore\u2019s residence for approximately two years. Defendant had previously helped Moore with odd jobs during his free time and often did not charge for his services. Moore is the maternal great-grandmother of the alleged victim in the case, Debbie, who was six-years old at the time of the alleged offense. Debbie resides with Moore and knows her as her mother.\nWhen defendant arrived, Moore let him in and followed him to the basement. As he walked down the stairs, defendant asked \u201c[w]here is my little girl?\u201d Moore told him, and then she saw defendant head to her bedroom where Debbie was watching television and playing Nintendo. Debbie was wearing a nightgown and no underwear. Debbie testified that defendant came into the room and played in her \u201cprivate spot\u201d with his tongue and hands. She threw her Nintendo remote at him to get him to stop. Debbie also alleged that defendant had tickled her \u201cprivate spot\u201d with his fingers and tongue on one prior occasion.\nDebbie went into the kitchen where her mother was drying her hands and told her about the incident. At that time, defendant was in the basement. Moore immediately confronted defendant, asking, \u201c[w]hy would you do that to my baby?\u201d Defendant responded, \u201cI didn\u2019t do nothing. I didn\u2019t do nothing.\u201d\nOn 1 August 2010, Detective Steve Woodson and Sergeant Dan Harris with the Brevard Police Department interviewed Debbie and Moore. Detective Woodson testified that Debbie accused defendant of doing something with his mouth to her private area; she showed him by taking her tongue and flicking it against her lips.\nDebbie went to Mission Hospital for a physical examination on 11 August 2011. Before the examination, Christine Nicholson, a social worker at Mission Children\u2019s Hospital, conducted a forensic interview with Debbie. The video of Debbie\u2019s interview was played for the jury as Nicholson testified. During the interview, Nicholson presented Debbie with a diagram showing a prepubescent female, and she circled the vaginal area on the drawing to indicate where defendant had touched her. The maltreatment team at Mission Hospital reviewed the interview.\nDr. Cindy Brown, the medical director of a child abuse valuation program at Mission Hospital, participated on the maltreatment team but did not personally examine or interview Debbie. Prior to trial, defense counsel made a motion in limine to exclude Dr. Brown\u2019s testimony. Dr. Brown did not testify in the State\u2019s case-in-chief; however, after the defense rested, the State called her as a rebuttal witness on the basis that the defense\u2019s evidence put the victim\u2019s credibility at issue. It is a portion of Dr. Brown\u2019s testimony that is the subject of this appeal.\nDefendant testified at trial, alleging that Debbie asked him to watch television with him, and, when he declined, she threw her Nintendo controller at him. Defendant left the room and went to the basement to fix the toilet. The defense called several character witnesses, including members of defendant\u2019s church, his employer, and his ex-wife; each testified to defendant\u2019s truthfulness and integrity. Defendant now appeals.\nII. Analysis\nDefendant contends that the trial court erred in admitting a portion of Dr. Brown\u2019s testimony as it impermissibly spoke to Debbie\u2019s credibility. We agree. The issue before us stems from the following testimony offered by Dr. Brown on rebuttal:\nQ. Did you form an opinion as to whether [Debbie\u2019s] disclosure was consistent with sexual abuse?\nDEFENDANT: Objection. Move to strike. Motion for retrial.\nTHE COURT: Overruled. Overruled. Overruled.\nA. Yes.\nQ. And what was your opinion?\nA. Our report reads that her disclosure is consistent with sexual abuse.\nQ. And what did you base your opinion on?\nA. The consistency of her statements over time, the fact that she could give sensory details of the event which include describing being made wet and the tickling sensation. . . . [a]nd her knowledge of the sexual act that is beyond her developmental level.\nWe first note that defendant preserved this issue for appellate review. Here, the trial court requested the State to forecast the evidence it intended to present if Dr. Brown testified. The State informed the trial court that it intended to ask Dr. Brown if Debbie\u2019s disclosure was consistent with sexual abuse. Defendant did not object during the forecast but did object to the testimony now complained of at the time it was offered and timely made a motion to strike and motion for retrial. The objection was overruled and the motions were denied. We hold that the grounds for the objection were apparent from the context. See N.C.R. App. P. 10(a) (preserving an issue for appellate review requires a party to \u201chave presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d).\nIt is well settled that \u201c[ejxpert opinion testimony is not admissible to establish the credibility of the victim as a witness.\u201d State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598, aff\u2019d, 356 N.C. 428, 571 S.E.2d 584 (2002) (citation omitted). \u201cHowever, those cases in which the disputed testimony concerns the credibility of a witness\u2019s accusation of a defendant must be distinguished from cases in which the expert\u2019s testimony relates to a diagnosis based on the expert\u2019s examination of the witness.\u201d State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988). \u201cWith respect to expert testimony in child sexual abuse prosecutions, our Supreme Court has approved, upon a proper foundation, the admission of expert testimony with respect to the characteristics of sexually abused children and whether the particular complainant has symptoms consistent with those characteristics.\u201d Dixon, 150 N.C. App. at 52, 563 S.E.2d at 598 (citations omitted).\nIn order for an expert medical witness to render an opinion that a child has, in fact, been sexually abused, the State must establish a proper foundation, i.e. physical evidence consistent with sexual abuse. Id. Without physical evidence, expert testimony that sexual abuse has occurred is an impermissible opinion regarding the victim\u2019s credibility. Id.\nHere, Dr. Brown stated that Debbie\u2019s \u201cdisclosure\u201d was \u201cconsistent with sexual abuse.\u201d The alleged \u201cdisclosure\u201d was Debbie\u2019s description of the abuse. The State argues that the contested portion of Dr. Brown\u2019s testimony is admissible \u201cbecause it could help the jury understand the behavior patterns of sexually abused children.\u201d We do not agree. While Dr. Brown did not diagnose Debbie as having been sexually abused, she essentially expressed her opinion that Debbie is credible. We see no appreciable difference between this statement and a statement that Debbie is believable. The testimony neither addressed the characteristics of sexually abused children nor spoke to whether Debbie exhibited symptoms consistent with those characteristics. See Id.\nFurthermore, Dr. Brown based her opinion solely on \u201cthe consistency of Debbie\u2019s statements over time,\u201d the fact that she could provide sensory details, and because her knowledge of the sexual act was beyond her developmental level. This may have been a sufficient foundation to support an opinion as to whether Debbie exhibited symptoms or characteristics of victims of child sexual abuse; however, it was insufficient for the admission of Dr. Brown\u2019s judgment that Debbie is believable. Additionally, the record contains no physical evidence indicating that Debbie was sexually abused, and Dr. Brown never personally examined or interviewed her; she merely reviewed the forensic interview and the case file. As such, Dr. Brown was not in a position to know whether Debbie\u2019s statements remained consistent over time. Therefore, the contested testimony amounted only to an impermissible opinion regarding the victim\u2019s credibility, and the trial court erred in admitting it. See State v. Oliver, 85 N.C. App. 1, 11, 354 S.E.2d 527, 533 (1987) (citation omitted) (\u201c[O]ur courts have held expert testimony inadmissible if the expert testifies that the prosecuting child-witness in a trial for sexual abuse is believable, or to the effect that the prosecuting child-witness is not lying about the alleged sexual assault.\u201d).\nWe must next discern whether the trial court\u2019s error was prejudicial. A prejudicial error occurs \u201cwhen there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-1443 (2011). Here, defendant argues that the State \u201cobviously chose to present Dr. Brown during rebuttal for dramatic effect, insuring that she would be the last witness the jury would hear before it began its deliberations. It is probable that this strategy had its intended effect.\u201d We agree.\nThe State\u2019s only direct evidence of defendant\u2019s guilt in the case sub judice was Debbie\u2019s testimony. There was no medical evidence indicating that Debbie had been sexually abused, there was no evidence that Debbie exhibited intense emotional trauma after the incident, and no testimony was offered regarding whether her behavior following the alleged sexual abuse was consistent with victims of sexual abuse. Essentially, the jury was left to weigh Debbie\u2019s credibility against defendant\u2019s credibility, making Debbie\u2019s credibility central to the outcome. Because Dr. Brown\u2019s rebuttal testimony spoke directly to Debbie\u2019s credibility, it had a probable impact on the outcome of the trial.\nIII. Conclusion\nIn sum, we conclude that the trial court committed prejudicial error in admitting the contested testimony as it spoke directly to Debbie\u2019s credibility. Accordingly, we grant defendant a new trial. As defendant\u2019s remaining issues may not arise in a new trial, we decline to address them.\nNew trial.\nJudges GEER and DILLON concur.\n. A pseudonym has been used to protect the identity of the child.\n. Defense counsel made a motion for retrial. We conclude that defense counsel\u2019s intent was to make a motion for mistrial.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Angenette Stephenson, for the State.", "Mark Montgomery for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RALPH EUGENE FRADY\nNo. COA12-1375\nFiled 6 August 2013\nSexual Offenses \u2014 first-degree sexual offense with a child\u2014 expert testimony \u2014 impermissible opinion regarding victim\u2019s credibility\nThe trial court erred in a child sexual abuse case by admitting expert testimony that the child victim\u2019s disclosure that she had been sexually abused was consistent with sexual abuse. Without physical evidence, the expert testimony that sexual abuse had occurred was an impermissible opinion regarding the victim\u2019s credibility. Because the victim\u2019s credibility was central to the outcome of the case, the admission of the evidence was prejudicial.\nAppeal by defendant from judgment entered 27 April 2012 by Judge Sharon T. Barrett in Transylvania County Superior Court. Heard in the Court of Appeals 9 May 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Angenette Stephenson, for the State.\nMark Montgomery for defendant." }, "file_name": "0682-01", "first_page_order": 692, "last_page_order": 697 }