{ "id": 8528019, "name": "STATE OF NORTH CAROLINA v. ROBERT LANE WISE", "name_abbreviation": "State v. Wise", "decision_date": "1989-04-04", "docket_number": "No. 8819SC615", "first_page": "305", "last_page": "309", "citations": [ { "type": "official", "cite": "93 N.C. App. 305" } ], "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": "358 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727201, 4729487, 4726223, 4727800, 4731129 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0175-03", "/nc/320/0175-05", "/nc/320/0175-02", "/nc/320/0175-04", "/nc/320/0175-01" ] }, { "cite": "355 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170240 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0624-01" ] }, { "cite": "341 S.E. 2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700970 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0337-01" ] }, { "cite": "350 S.E. 2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] }, { "cite": "350 S.E. 2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735495 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0614-01" ] }, { "cite": "317 S.E. 2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526471 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0477-01" ] }, { "cite": "169 S.E. 2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559236 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0565-01" ] } ], "analysis": { "cardinality": 547, "char_count": 9417, "ocr_confidence": 0.765, "pagerank": { "raw": 2.1471670164081693e-07, "percentile": 0.76800423499594 }, "sha256": "3e2b17fc5df466166edc20bf314c763c65cbdfc4405bfececfa3fb68bd52ac37", "simhash": "1:46394d6f36f7b848", "word_count": 1555 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Becton concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LANE WISE" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe State\u2019s prosecuting witness testified to the following: Defendant is the step-uncle and neighbor of the prosecutrix. On 14 June 1986, defendant asked the prosecutrix to come to his house to babysit. When she arrived he asked her to accompany him to a storage building about five minutes away by car to help him pick up something. Defendant\u2019s two-year-old son went with the two to the warehouse, but remained asleep in defendant\u2019s van. After defendant and the prosecutrix got the item and walked to one end of the warehouse, the prosecutrix fell. At that point defendant held the child down on the floor by putting his knee on her stomach while pulling her shorts off. Defendant then proceeded to have sexual intercourse with the prosecutrix. The child waited until the defendant left and then put on her clothes and went home.\nIn June or July of 1987, the prosecutrix confided to the leader of her church youth group, Nadine Wilcox, that the defendant had had sexual intercourse with her. Mrs. Wilcox informed the prosecu-trix\u2019s mother, and the defendant was subsequently charged with rape.\nDefendant denied all of the allegations against him and testified that he was working at his job as manager of the Country Barn, a facility for lease to private groups for social functions, on 14 June 1986.\nWe find that only defendant\u2019s third Assignment of Error merits discussion. Insofar as the others are concerned, they are overruled.\nBy his third Assignment of Error, defendant contends that the trial court committed reversible error in allowing an expert witness who had interviewed the prosecutrix to testify that, in effect, the prosecutrix was telling the truth.\nGail Kay Mason, a professional counselor who worked with the prosecutrix during the investigation of this case, testified for the State. We note at the outset that the State\u2019s attorney did not initially tender Mrs. Mason as an expert in counseling children, nor did the court specifically find her to be an expert. After the witness had testified extensively on direct examination, defense counsel challenged Mrs. Mason\u2019s status as an expert and was allowed to question her about her qualifications. Although the court did not then specifically find Mrs. Mason to be an expert in counseling children, defendant\u2019s objection to her testimony was overruled. Our perusal of the record indicates that the witness Mason was qualified to testify as an expert. In the absence of a special request that a court expressly find that a witness is qualified as an expert, that finding will be deemed implicit in the court\u2019s admitting the witness\u2019 testimony. State v. Perry, 275 N.C. 565, 169 S.E. 2d 839 (1969); State v. Perry, 69 N.C. App. 477, 317 S.E. 2d 428 (1984). We believe that the situation before us falls under this general rule, and that the trial court may be deemed to have implicitly accepted Mrs. Mason as a witness by admitting her testimony.\nIn her testimony Mrs. Mason gave a detailed statement from her notes of what the prosecutrix told her in a counseling session concerning the alleged 14 June 1986 incident. The following interchange between the State\u2019s attorney and Mrs. Mason then occurred.\nQ. Did you engage her also in a conversation concerning what had occurred on May 30, 1987?\nA. I did not. All I have recorded is May 30th, same warehouse.\nQ. So you didn\u2019t ask her specifically about individual, just in general.\nA. Right. She was referred to me through victims\u2019 assistance. I was in a counseling \u2014 that was the way I perceived it, as far as a counseling endeavor.\nQ. Now ma\u2019am, could you describe her emotionally when she was telling you these things during these counseling sessions?\nA. Genuine.\nAlthough defense counsel objected to the witness\u2019 description of the prosecutrix during counseling sessions as \u201cgenuine,\u201d the court did not rule on the objection.\nDefendant contends that Mrs. Mason\u2019s statement amounted to an expert opinion that the prosecutrix was telling the truth and violated G.S. sec. 8G-1, Rules 405 and 608, of the North Carolina Rules of Evidence. We agree that the response was improper.\nG.S. sec. 8C-1, Rule 405(a) provides in part that \u201c[e]xpert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior.\u201d In addition, G.S. sec. 8C-1, Rule 608(a) states partially that \u201c[t]he credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a),. . .\u201d In observing the relation between the two rules of evidence, the commentary to Rule 608 states that \u201c[t]he reference to Rule 405(a) is to make it clear that expert testimony on the credibility of a witness is not admissible.\u201d Our Supreme Court has upheld the mandate of Rules 405(a) and 608 in holding that expert opinion is inadmissible as it relates to the credibility of a witness. State v. Kim, 318 N.C. 614, 350 S.E. 2d 347 (1986); State v. Aguallo, 318 N.C. 590, 350 S.E. 2d 76 (1986); State v. Heath, 316 N.C. 337, 341 S.E. 2d 565 (1986).\nIn the case sub judice, Mrs. Mason\u2019s testimony that the prose-cutrix was \u201cgenuine\u201d when talking to her in counseling sessions clearly bore on the prosecutrix\u2019s credibility. The question which elicited her response, which inquired about the child\u2019s emotional state during the sessions, was not improper. It did, however, squarely invoke the witness\u2019 status as a professional. Her answer that the child was genuine, though unresponsive to the question, undoubtedly had the effect of establishing that the prosecutrix was telling the truth. Kim, supra. It is also important that Mrs. Mason\u2019s response came only moments after her detailed recounting of the alleged rape on 14 June 1986 as told to her by the prosecutrix. Thus, it improperly gave credibility to the prosecutrix\u2019s testimony concerning that incident. Id.\nHaving decided that the counselor\u2019s statement was improper, we must now determine whether the error was prejudicial to defendant so as to merit a new trial. To demonstrate prejudice, a defendant must show \u201ca reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u201d G.S. sec. 15A-1443(a); State v. Teeter, 85 N.C. App. 624, 355 S.E. 2d 804, writ denied, appeal dismissed, disc. rev. denied, 320 N.C. 175, 358 S.E. 2d 66-67 (1987). We believe the contested statement meets this standard and was therefore prejudicial to defendant.\nThe State\u2019s case rested on the credibility of the prosecutrix. She did not report the incident in question until about a year after it allegedly occurred. Therefore, there was no medical evidence directly implicating the defendant. Although a physician who examined the prosecutrix on 29 June 1987 testified that there was evidence of penetration, he could not conclude that the prosecutrix had actually had sexual intercourse. Further, there was some inconsistency in the prosecutrix\u2019s statements. In one session with Mrs. Mason she claimed that defendant slapped her and threatened her verbally on 14 June 1986. The child later told the counselor that the slapping and threat never occurred. The prosecutrix also admitted at trial that she had lied earlier under oath when she claimed that she did not understand certain language allegedly used by defendant on 14 June 1986.\nThis trial was basically a matter of the prosecutrix\u2019s accusations against the. defendant\u2019s denials. The credibility of each was critical. When Mrs. Mason declared the prosecutrix to be \u201cgenuine\u201d she invaded the jury\u2019s province as sole fact finder to the prejudice of the defendant. Further, this comment stood without any instruction by the court to ignore it as to the prosecutrix\u2019s credibility. Under these facts, we conclude that in the absence of the challenged testimony there is a reasonable possibility that a different result would have been reached.\nFor the foregoing reasons we hold that defendant is entitled to a\nNew trial.\nJudges Wells and Becton concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Katherine R. White, for the State.", "Cruse and Spence, by Kenneth B. Cruse and Thomas K. Spence, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LANE WISE\nNo. 8819SC615\n(Filed 4 April 1989)\nCriminal Law \u00a7\u00a7 50.1, 86.8\u2014 expert opinion on credibility of witness-prejudicial error\nTestimony by an expert in counseling children that an alleged rape victim was \u201cgenuine\u201d when talking to her in counseling sessions amounted to an opinion that the victim was telling the truth and violated N.C.G.S. \u00a7 8C-1, Rules 405(a) and 608. Furthermore, the admission of such testimony was prejudicial error where the trial was basically a matter of the victim\u2019s accusations against defendant\u2019s denials.\nAPPEAL by defendant from Collier, Robert A., Jr., Judge. Judgment entered 21 January 1988 in Superior Court, CABARRUS County. Heard in the Court of Appeals 23 January 1989.\nDefendant Robert Lane Wise was tried before a jury on two separate indictments charging first degree rape of a twelve-year-old girl in violation of G.S. sec. 14-27.2(a)(l). The jury convicted the defendant of the rape which allegedly occurred on 14 June 1986, and found him not guilty of the charge stemming from the 30 May 1987 allegations. The trial judge imposed a mandatory life sentence for conviction of the 14 June 1986 offense, and defendant gave notice of appeal in open court.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Katherine R. White, for the State.\nCruse and Spence, by Kenneth B. Cruse and Thomas K. Spence, for defendant-appellant." }, "file_name": "0305-01", "first_page_order": 335, "last_page_order": 339 }