{
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  "name": "STATE OF NORTH CAROLINA v. TROY W. AYERS",
  "name_abbreviation": "State v. Ayers",
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    "judges": [
      "Judges Eagles and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. TROY W. AYERS"
    ],
    "opinions": [
      {
        "text": "SMITH, Judge.\nDefendant brings forward two assignments of error. First, he contends the trial court erred in qualifying a witness, Alice Bit-ticks, as an expert in child sexual abuse and in allowing the witness to testify as an expert. Defendant\u2019s second assignment of error is to a portion of the court\u2019s instructions to the jury. We have reviewed the assignments of error and find that defendant\u2019s trial was free from error.\nAt trial, the victim was qualified as a witness and testified that she lived with her father, her paternal grandmother and her grandmother\u2019s husband, defendant. She testified that on two occasions when she and defendant were at their home alone defendant inserted his \u201cwoo\u201d into her \u201cprivate.\u201d Eventually the victim told her mother of the events. The victim was then examined by a physician and questioned by law enforcement officers. The State also presented testimony of the victim\u2019s mother, the examining physician, the investigating officer and a social worker, Alice Bit-ticks, which tended to corroborate the victim\u2019s testimony. Defendant\u2019s evidence included his own testimony of a good relationship with the victim and a denial of the alleged incidents. He also presented the testimony of several witnesses as to his reputation for truthfulness in the community.\nDefendant first assigns error to the testimony of Ms. Alice Bitticks, Counseling Services Supervisor at Turning Point, a division of Family and Children Services. Defendant contends the court erred by qualifying and allowing Ms. Bitticks to testify as an expert in child sexual abuse. We note initially that when the court accepted the witness as an expert, defendant\u2019s trial counsel stated that he had no objection to the testimony as long as the testimony did not reach psychological or psychiatric questions, a condition to which the court agreed. However, defendant notes an exception in the trial transcript to the court\u2019s ruling accepting the witness as an expert. Our Supreme Court has stated that \u201c[a] party may not, after trial and judgment, comb through the transcript of the proceedings and randomly insert an exception notation in disregard of the mandates of Rule 10(b).\u201d State v. Oliver, 309 N.C. 326, 335, 307 S.E. 2d 304, 312 (1983). \u201c[FJailure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal.\u201d Id. at 334, 307 S.E. 2d at 311. Thus, defendant may not assign error to the witness\u2019s qualification as an expert but may only assign error to questions which are properly objected to at trial. App. R. 10(b)(1). Moreover, we find no error in the qualification of Ms. Bitticks as an expert. Ms. Bitticks testified that she holds a bachelor\u2019s degree in social work and a master\u2019s degree in counseling and guidance. In her three and one-half years of employment at Turning Point, she has had over 100 hours of training in the area of sexual abuse. As counseling services supervisor at Turning Point, she directly supervised about 350 cases involving sexual abuse. She also personally counseled approximately seventy victims of sexual abuse on a weekly basis for six months to two years per victim. \u201cIt is enough that through study or experience the expert is better qualified than the jury to render [an] opinion regarding the particular subject.\u201d State v. Howard, 78 N.C. App. 262, 270, 337 S.E. 2d 598, 604 (1985), disc. rev. denied and appeal dismissed, 316 N.C. 198, 341 S.E. 2d 581 (1986). See G.S. 8C-1, Rule 702.\nDefendant\u2019s only objections to Ms. Bitticks\u2019 testimony were to questions regarding her opinion on whether amnesia is a symptom of sexually abused children. Prior to Ms. Bitticks\u2019 testimony, the examining physician had testified that in her opinion children who have been sexually abused often have amnesia as to details of the incidents. \u201cException to the admission of testimony is waived when testimony of the same import is . . . admitted without objection.\u201d McNeil v. Williams, 16 N.C. App. 322, 324, 191 S.E. 2d 916, 918 (1972). Plaintiffs first assignment of error is without merit.\nDefendant\u2019s final assignment of error is to the court\u2019s instructions to the jury. The court gave the following instruction:\nNow, ladies and gentlemen of the jury, the highest aim of every legal contest is the ascertainment of the truth. In these cases, you have no friendly [sic] to reward or enemy punished [sicj. You have no anger to appease or sorrow to assuage. You as the jury have the solemn duty in these cases to let your verdict speak the truth.\nDefendant contends the instruction is error in that it lowers the State\u2019s burden of proof to less than the \u201cbeyond a reasonable doubt\u201d standard. We disagree with defendant\u2019s contention.\nDefendant was given an opportunity to object to the jury instructions but did not do so. Our appellate rules provide that \u201c[n]o party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict.\u201d App. R. 10(b)(2). \u201cRule 10(b)(2) . . . requiring objection to the charge before the jury retires is mandatory and not merely directory.\u201d State v. Fennell, 307 N.C. 258, 263, 297 S.E. 2d 393, 396 (1982). Furthermore, we find no violation of a substantial right entitling defendant to review under the \u201cplain error\u201d doctrine of State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). In determining whether an alleged defect in a jury instruction is \u201cplain error,\u201d we must decide if the alleged error had probable impact on the jury\u2019s finding of guilt. Id. We find no such impact here. \u201c[I]t is fundamental that the charge of the court will be construed contextually, and isolated portions will not be held to constitute prejudicial error when the charge as a whole is free from objection.\u201d State v. Hutchins, 303 N.C. 321, 346, 279 S.E. 2d 788, 803 (1981). The instruction given is essentially the pattern jury instruction in N.C.P.I. \u2014 Crim. 101.36. The charge does not, as defendant contends, admonish the jury to resolve every question presented by the evidence rather than decide whether the jury is convinced of defendant\u2019s guilt beyond a reasonable doubt. Moreover, the court properly instructed the jury on the State\u2019s burden of proof and the concept of reasonable doubt. Construed as a whole, the instructions given did not constitute error.\nNo error.\nJudges Eagles and Parker concur.",
        "type": "majority",
        "author": "SMITH, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General J. Allen Jemigan, for the State.",
      "Mary K. Nicholson for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TROY W. AYERS\nNo. 8818SC577\n(Filed 20 December 1988)\n1. Criminal Law \u00a7 51.1\u2014 social worker \u2014 qualification as child abuse expert\nThe trial court did not err in qualifying a social worker to testify as an expert in child abuse where the witness testified: she held a bachelor\u2019s degree in social work and a master\u2019s degree in counseling and guidance; she has had over 100 hours of training in the area of sexual abuse; she directly supervised about 350 cases involving sexual abuse as a counseling services supervisor; and she also personally counseled approximately seventy victims of sexual abuse on a weekly basis for six months to two years per victim.\n2. Criminal Law \u00a7 169.3\u2014 admission of testimony over objection \u2014 failure to object to similar testimony\nDefendant was not prejudiced by the admission over objection of opinion testimony by a social worker that amnesia is a symptom of sexually abused children where a physician had previously testified without objection that in her opinion children who have been sexually abused often have amnesia as to details of the incidents.\n3. Criminal Law \u00a7 112.2\u2014 instructions \u2014 duty of jury to ascertain truth \u2014 no plain error\nThe trial court\u2019s instructions on the duty of the jury to ascertain the truth did not lower the State\u2019s burden of proof to less than proof beyond a reasonable doubt and did not constitute plain error.\nAppeal by defendant from Friday (John R.}, Judge. Judgment entered 4 December 1987 in Superior Court, Guilford County. Heard in the Court of Appeals 6 December 1988.\nDefendant was found guilty by a jury of two counts of first degree rape of his eight-year-old step-granddaughter. The convictions were consolidated for sentencing, and defendant was sentenced to life imprisonment. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General J. Allen Jemigan, for the State.\nMary K. Nicholson for defendant-appellant."
  },
  "file_name": "0364-01",
  "first_page_order": 394,
  "last_page_order": 397
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