{ "id": 2515424, "name": "STATE OF NORTH CAROLINA v. ERNEST J. AGUALLO", "name_abbreviation": "State v. Aguallo", "decision_date": "1988-07-28", "docket_number": "No. 326A87", "first_page": "818", "last_page": "826", "citations": [ { "type": "official", "cite": "322 N.C. 818" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "349 S.E. 2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "340 S.E. 2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717320 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0444-01" ] }, { "cite": "304 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710533 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0747-01" ] }, { "cite": "176 S.E. 2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563929 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0236-01" ] }, { "cite": "220 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "prosecutor informed jury that defendant had previously been on death row" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "pin_cites": [ { "parenthetical": "prosecutor informed jury that defendant had previously been on death row" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "241 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "prosecutor said witness was lying through his teeth" } ], "opinion_index": 0 }, { "cite": "294 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572384 ], "year": 1977, "pin_cites": [ { "parenthetical": "prosecutor said witness was lying through his teeth" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0210-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "276 S.E. 2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "302 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567969 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0581-01" ] }, { "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 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": "287 S.E. 2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567356 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0238-01" ] }, { "cite": "225 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "793" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "290 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560772 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0203-01" ] }, { "cite": "350 S.E. 2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] } ], "analysis": { "cardinality": 687, "char_count": 16761, "ocr_confidence": 0.816, "pagerank": { "raw": 3.3675369210812777e-07, "percentile": 0.8756246020520887 }, "sha256": "9a792b417fe62f2befe6087c0ea41e619ca18d7a4ad48ec2ee0268c95aca9fa5", "simhash": "1:8f7db52677af0037", "word_count": 2756 }, "last_updated": "2023-07-14T21:30:38.561214+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ERNEST J. AGUALLO" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant\u2019s appeal of his conviction and resulting sentence of life imprisonment reaches this Court for a second time. Defendant\u2019s first appeal resulted in a new trial. See State v. Aguallo, 318 N.C. 590, 350 S.E. 2d 76 (1986). A thorough review of the record and assignments of error reveals that defendant\u2019s second trial was free of error.\nWe need only repeat those facts that are necessary to dispose of the case on this appeal. The State presented evidence which tended to show that defendant had vaginal intercourse with his stepdaughter, age nine, on 12 December 1984. During the course of the trial, the State called as witnesses a social services case worker and a juvenile investigator, both of whom had questioned the young victim following the assault. The two witnesses testified to the general characteristics of sexually abused children. The State also presented testimony from an examining pediatrician to corroborate the testimony of the child.\nDefendant testified on his own behalf, essentially contending that the testimony of the prosecutrix was untrue. The jury returned a verdict of guilty of first degree rape, and the trial judge sentenced defendant to the mandatory life term. Defendant again appeals as a matter of right.\nDefendant, by his first assignment of error, contends that the trial court erred by allowing two witnesses to testify to the characteristics of sexually abused children. Defendant argues that such evidence was improper since the witnesses were not qualified as experts and that their testimony fails as lay opinion because it was not \u201crationally based on the perceptions of the witness.\u201d N.C.G.S. \u00a7 8C-1, Rule 701 (1986).\nDuring the State\u2019s case-in-chief, the prosecutor called Amy Collins as a witness. Collins testified on direct examination that she was a case worker with the Davie County Department of Social Services in child protective services. She had been employed in that capacity for fourteen years and had investigated between twenty-five and thirty cases of child sexual abuse. She interviewed the victim in this case, who told her about the abuse inflicted upon her by defendant. The prosecutor also called Juvenile Investigator Linda Sturgill of the Forsyth County Sheriffs Department. Ms. Sturgill had been employed in that capacity for seven years and had investigated over one hundred cases of child sexual abuse. The substance of both witnesses\u2019 testimony was a portrayal of the typical sexually abused child. Defendant offered general objections to most of this testimony.\nIn considering this assignment of error, we find instructive this Court\u2019s decision in State v. Phifer, 290 N.C. 203, 225 S.E. 2d 786 (1976). There, the defendant objected to the trial judge\u2019s decision to allow into evidence the testimony of two SBI agents. One agent gave his opinion as to whether the washing of one\u2019s hands would destroy any possibility of a valid gun residue test, and a second agent explained the differences between a latent lift and a fingerprint. Neither of the agents had been formally qualified as experts. We held that because of the nature of their jobs and the experience which they had, they were better qualified than the jury to form an opinion on these matters. Id. at 213, 225 S.E. 2d at 793. The Court further held that because the defendant never requested a finding by the trial court as to the witnesses\u2019 qualifications as experts, such a finding was deemed implicit in the ruling admitting the opinion testimony. Id. at 213-14, 225 S.E. 2d at 793.\nIn the instant case, Ms. Collins had over fourteen years in child protective services and had during that time worked on between twenty-five and thirty cases of child sexual abuse. Investigator Sturgill, likewise, was experienced in the area of child sexual abuse by having investigated some one hundred cases. It is evident that the nature of their jobs and the experience which they possessed made them better qualified than the jury to form an opinion as to the characteristics of abused children. In any event, defendant interposed only general objections to the testimony which is the subject of this assignment of error. He, like defendant in Phifer, never requested a finding by the trial court as to the witnesses\u2019 qualifications as experts. In the absence of such a request, the finding that the witness is an expert is implicit in the trial court\u2019s ruling admitting the opinion testimony. Id. Moreover, since defendant did not object on the grounds that the testifying witnesses were not qualified as experts, he has waived his right to later make the challenge on appeal. State v. Hunt, 305 N.C. 238, 287 S.E. 2d 818 (1982).\nBy defendant\u2019s second assignment of error, he contends that the pediatrician\u2019s testimony that the results of the physical examination wer\u00e9 consistent with the victim\u2019s pre-examination statement was a comment on the victim\u2019s truthfulness or the guilt or innocence of defendant. We disagree.\nDr. Sinai, who performed a complete examination of the victim, testified that there had been a \u201clacerational cut\u201d in the hymen area of the child. When asked if the findings from the physical examination were consistent with what the child had told her, the doctor responded affirmatively. At a later time during direct examination, the prosecutor again asked the doctor if, in her opinion, the lacerations and adhesions she found were consistent with what the child had told her. Over objection she responded, \u201cI felt it was consistent with her history.\u201d\nDefendant relies on a line of cases in which this Court has held it reversible error for medical experts to testify as to the veracity of the victim. This Court has found reversible error when experts have testified that the victim was believable, had no record of lying, and had never been untruthful. See State v. Aguallo, 318 N.C. 590, 350 S.E. 2d 76; State v. Kim, 318 N.C. 614, 350 S.E. 2d 347 (1986); State v. Heath, 316 N.C. 337, 341 S.E. 2d 565 (1986). This case, however, is distinguishable.\nEssentially, the doctor testified that the physical trauma revealed by her examination of the child was consistent with the abuse the child alleged had been inflicted upon her. We find this vastly different from an expert, stating on examination that the victim is \u201cbelievable\u201d or \u201cis not lying.\u201d The latter scenario suggests that the complete account which allegedly occurred is true, that is, that this defendant vaginally penetrated this child. The actual statement of the doctor merely suggested that the physical examination was consistent with some type of penetration having occurred. The important difference in the two statements is that the latter implicates the accused as the perpetrator of the crime by affirming the victim\u2019s account of the facts. The former does not.\nThe statement of the doctor only revealed the consistency of her findings with the presence of vaginal trauma. This expert opinion did not comment on the truthfulness of the victim or the guilt or innocence of defendant. The questions and answers were properly admitted to assist the jury in understanding the results of the physical examination and their relevancy to the case being tried. N.C.G.S. \u00a7 8C-1, Rule 702 (1986).\nDefendant next argues that the trial court abused its discretion by allowing the prosecutor to question defendant during cross-examination as to whether several of the State\u2019s witnesses told less than the truth during their testimony. One colloquy between the prosecutor and defendant was as follows:\nQ. [Prosecutor] You had your pants down, and that is what Mary saw when she walked in?\nA. That\u2019s wrong.\nQ. You\u2019re saying Mary made that up, she saw you with her pants down? (Emphasis added.)\nA. She didn\u2019t see me with my pants down. They weren\u2019t down.\nQ. You\u2019re saying she made that up?\nA. That\u2019s what she testified to.\nQ. Did she make that up?\nA. I can\u2019t speak for Mary. I\u2019m telling you my pants were up.\nQ. Well\u2014\nA. They were unbuttoned, but remember\u2014\nQ. They had slipped down?\nA. Yeah, when I got up off the couch.\nQ. I understand that. And Mary\u2019s lying about this?\nA. Don\u2019t make me call my wife a liar.\nQ. Beg pardon? [sic]\nA. Don\u2019t make me call my wife a liar.\nQ. Well, you called her a liar at the last trial, Mr. Aguallo.\nMr. Stroud: [defense counsel] Objection.\nQ. [Prosecutor] And you had no hesitation at the last trial calling her a liar.\nMr. Stroud: Objection, Your Honor.\nThe Court: Overruled.\nA. I been [sic] away from my wife for two years.\nDefendant argues that the foregoing questions exceeded the proper bounds of cross-examination in that they called for the defendant to comment on the credibility of his wife Mary Aguallo.\nThe bounds of permissible cross-examination were stated in State v. Dawson, 302 N.C. 581, 276 S.E. 2d 348 (1981). In Dawson, this Court held that: (1) the scope of cross-examination is subject to the discretion of the trial judge; and (2) the questions offered on cross-examination must be asked in good faith. Id. at 585, 276 S.E. 2d at 351, citing State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). The cases in which this Court has found abuse of discretion based upon a challenge of improper cross-examination have involved instances where the prosecutor has affirmatively placed before the jury his own opinion or facts which were either not in evidence or not properly admissible. See State v. Locklear, 294 N.C. 210, 241 S.E. 2d 65 (1977) (prosecutor said witness was lying through his teeth); State v. Britt, 288 N.C. 699, 220 S.E. 2d 283 (1975) (prosecutor informed jury that defendant had previously been on death row). Such egregious conduct did not occur in the instant case.\nHere, the prosecutor was cross-examining defendant about his prior testimony at the first trial to reveal inconsistencies. Prior statements by a defendant are a proper subject of inquiry by cross-examination. See N.C.G.S. \u00a7 8C-1, Rules 607, 608, and 613 (1986). The record fails to show that the questions asked were not based on proper information and asked in good faith. See State v. Gaiten, 277 N.C. 236, 176 S.E. 2d 778 (1970). The prosecutor did not offer his own opinion or present facts which were not in evidence or not properly admissible. We, therefore, find that the trial court did not abuse its discretion in its ruling on the State\u2019s cross-examination of defendant. State v. Ziglar, 308 N.C. 747, 304 S.E. 2d 206 (1983).\nDefendant argues that the prosecutor\u2019s tactics on cross-examination also required defendant to comment on the credibility of other witnesses, including the victim. However, defendant did not object, at trial, to these questions or move to strike the responses thereto. Failure to object at the time the evidence is offered or to move to strike the evidence is deemed a waiver of the right to assert error on appeal. See N.C.R. App. P., Rule 10(b)(1); State v. Gardner, 315 N.C. 444, 340 S.E. 2d 701 (1986).\nDefendant contends in his final assignment of error that the trial judge erred by denying his motion to strike the testimony of a witness who allegedly presented new facts under the guise of corroborative testimony. The State sought to read to the jury a written statement made by the young victim. The trial court admitted it for the limited purpose of corroborating the child\u2019s earlier testimony that defendant threatened her mother. Defendant objected to a sentence in the statement in which defendant allegedly told the victim\u2019s mother to \u201ccome see me or I will get someone to come rape your children.\u201d Specifically, he argues that the written statement of the prosecutrix, read at trial by a State\u2019s witness, did not corroborate the victim\u2019s testimony because it contained this additional fact which went beyond her earlier testimony. This contention is without merit.\nWe are guided by this court\u2019s decision in State v. Ramey, 318 N.C. 457, 349 S.E. 2d 566 (1986). There, we held that testimony was corroborative if it tended \u201cto add weight or credibility to such testimony.\u201d Id. at 469, 349 S.E. 2d at 573. More important, in Ramey, we expressly rejected this Court\u2019s previous statements that new information, contained in the witness\u2019 prior statement, but not referred to in his trial testimony, may never be admitted as corroborative evidence. Id. Consequently, our analysis does not end simply because the new statement read to the jury contained statements not previously heard by the jury. Rather, we must determine whether these additional facts \u201cadd weight or credibility\u201d to the child\u2019s earlier testimony. Id.\nThe victim previously testified that defendant had said he would hurt her mother if the child told anyone what had transpired. The child also testified on more than one occasion that she was afraid of defendant. The portion of the written statement about which defendant now complains supports the earlier concerns expressed by the young victim, that is, her fear of retaliation. Although the written statement included facts not otherwise in evidence, the additional facts tended to add weight or credibility to those already admitted into evidence. For that reason, the trial court properly denied defendant\u2019s motion to strike.\nIn defendant\u2019s trial, we find\nNo error.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Francis W. Crawley, Assistant Attorney General, for the State.", "Leland Q. Towns for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERNEST J. AGUALLO\nNo. 326A87\n(Filed 28 July 1988)\n1. Criminal Law 8 50.2\u2014 testimony concerning characteristics oi sexually abused children \u2014 witnesses not qualified as experts \u2014 admissible\nThe trial court did not err in a prosecution for first degree rape of a nine-year-old stepdaughter by admitting the testimony of two witnesses concerning the characteristics of sexually abused children where one witness had over fourteen years in child protective services and had during that time worked on between twenty-five and thirty cases of child sexual abuse, and the other witness had investigated some one hundred cases. It is evident that the nature of their jobs and the experience which they possessed made them better qualified than the jury to form an opinion as to the characteristics of abused children; moreover, defendant only interposed general objections to the testimony and did not request a finding by the trial court as to the witnesses\u2019 qualifications as experts. N.C.G.S. \u00a7 8C-1, Rule 701 (1986).\n2. Criminal Law \u00a7\u00a7 86.8, 53\u2014 child rape victim \u2014 physician\u2019s testimony that results of examination consistent with victim\u2019s statement \u2014 admissible\nThe trial court did not err in a prosecution for the first degree rape of a nine-year-old girl by admitting a pediatrician\u2019s testimony that the results of a physical examination were consistent with the victim\u2019s pre-examination statement. The statement of the doctor only revealed the consistency of her findings with the presence of vaginal trauma and did not comment on the truthfulness of the victim or the guilt or innocence of defendant. N.C.G.S. \u00a7 8C-1, Rule 702 (1986).\n3. Criminal Law \u00a7 88.4\u2014 cross-examination of defendant \u2014 comment on credibility of other witnesses \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a prosecution for the first degree rape of defendant\u2019s nine-year-old stepdaughter in ruling on the State\u2019s cross-examination of defendant where the prosecutor was cross-examining defendant about his testimony in a prior trial to reveal inconsistencies, the record fails to show that the questions asked were not based on proper information and asked in good faith, the prosecutor did not offer his own opinion or present facts which were not in evidence or not properly admissible, and defendant did not object at trial to those questions or move to strike the responses.\n4. Criminal Law \u00a7 89.3\u2014 corroborative testimony \u2014 new information \u2014 admissible\nThe trial court did not err in a prosecution for the rape of defendant\u2019s nine-year-old stepdaughter by admitting as corroborative testimony a written statement made by the victim which contained an alleged statement by defendant to the victim\u2019s mother to \u201ccome see me or I\u2019ll get someone to come rape your children\u201d where that statement went beyond the victim\u2019s earlier testimony. The additional fact added weight or credibility to the child\u2019s earlier testimony because the victim had previously testified that defendant had said he would hurt her mother if the child told anyone what had transpired, and the child had also testified on more than one occasion that she was afraid of defendant.\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a sentence of life imprisonment imposed by Wood, Sr., J., at the 9 February 1987 Criminal Session of Superior Court, FORSYTH County. Heard in the Supreme Court 10 May 1988.\nLacy H. Thornburg, Attorney General, by Francis W. Crawley, Assistant Attorney General, for the State.\nLeland Q. Towns for defendant-appellant." }, "file_name": "0818-01", "first_page_order": 862, "last_page_order": 870 }