{ "id": 3738550, "name": "STATE OF NORTH CAROLINA v. ERIC MARSHALL HAMMETT", "name_abbreviation": "State v. Hammett", "decision_date": "2006-12-15", "docket_number": "No. 83A06", "first_page": "92", "last_page": "99", "citations": [ { "type": "official", "cite": "361 N.C. 92" } ], "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": "625 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634960 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/se2d/625/0168-01" ] }, { "cite": "175 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352844 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/nc-app/175/0597-01" ] }, { "cite": "612 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632809, 12632810 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0326-01", "/se2d/612/0326-02" ] }, { "cite": "359 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632806, 3801643, 3799341, 3799472, 3797969, 3798866, 3801046, 3801465, 3794842, 3804923 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0324-01", "/nc/359/0412-08", "/nc/359/0412-02", "/nc/359/0412-07", "/nc/359/0412-05", "/nc/359/0412-01", "/nc/359/0412-03", "/nc/359/0412-06", "/nc/359/0412-04", "/nc/359/0412-09" ] }, { "cite": "615 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633424 ], "year": 2005, "pin_cites": [ { "page": "873-75" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0870-01" ] }, { "cite": "625 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634960 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0168-01" ] }, { "cite": "594 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "422-24" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920607 ], "year": 2004, "pin_cites": [ { "page": "729-32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0727-01" ] }, { "cite": "564 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9083069 ], "year": 2002, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0710-01" ] }, { "cite": "595 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "718-19" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896816 ], "year": 2004, "pin_cites": [ { "page": "259-60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0254-01" ] }, { "cite": "606 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "919-20" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468323 ], "year": 2005, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0098-01" ] }, { "cite": "172 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8318688 ], "year": 2005, "pin_cites": [ { "page": "46-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0042-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251", "parenthetical": "explaining that \"plain error\" is error \"so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached\"" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213", "parenthetical": "explaining that \"plain error\" is error \"so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached\"" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "144 L. 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Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1161", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11221024, 11221440, 11221250, 11221057, 11221476, 11221003, 11221356, 11220974, 11221212, 11221110, 11221176, 11221146, 11221307, 11221404, 11221085 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1161-03", "/us/526/1161-14", "/us/526/1161-10", "/us/526/1161-04", "/us/526/1161-15", "/us/526/1161-02", "/us/526/1161-12", "/us/526/1161-01", "/us/526/1161-09", "/us/526/1161-06", "/us/526/1161-08", "/us/526/1161-07", "/us/526/1161-11", "/us/526/1161-13", "/us/526/1161-05" ] }, { "cite": "506 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "470", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "349 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571614 ], "year": 1998, "pin_cites": [ { "page": "29", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0001-01" ] }, { "cite": "467 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "31", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795978 ], "year": 1996, "pin_cites": [ { "page": "584", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0580-01" ] }, { "cite": "553 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138480 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0354-01" ] }, { "cite": "543 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "182-84" } ], "opinion_index": 0 }, { "cite": "142 N.C. 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App.", "case_ids": [ 9441531 ], "pin_cites": [ { "page": "417-19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0411-01" ] }, { "cite": "559 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" }, { "page": "789" }, { "page": "789" } ], "opinion_index": 0 }, { "cite": "355 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219976 ], "weight": 3, "year": 2002, "pin_cites": [ { "parenthetical": "per curiam" }, { "page": "266-67" }, { "page": "266-67" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0266-01" ] }, { "cite": "370 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "678" }, { "page": "822-23" }, { "page": "678" } ], "opinion_index": 0 }, { "cite": "322 N.C. 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515424 ], "year": 1988, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0818-01" ] }, { "cite": "350 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "78, 82" } ], "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "year": 1986, "pin_cites": [ { "page": "593, 599" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] }, { "cite": "359 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1987, "pin_cites": [ { "page": "613" }, { "page": "465" }, { "page": "465-66" }, { "page": "465-66" } ], "opinion_index": 0 }, { "cite": "320 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724664 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0610-01" ] }, { "cite": "175 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352844 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/175/0597-01" ] } ], "analysis": { "cardinality": 816, "char_count": 19040, "ocr_confidence": 0.754, "pagerank": { "raw": 2.1001539689838329e-07, "percentile": 0.7616959521578285 }, "sha256": "482729677e85d25121485d027ef92a25ed63a400e9d111141884d3dd71aed4fe", "simhash": "1:46a7d66176bf8602", "word_count": 3107 }, "last_updated": "2023-07-14T16:19:48.141297+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ERIC MARSHALL HAMMETT" ], "opinions": [ { "text": "EDMUNDS, Justice.\nIn this case, we consider whether the trial court committed error in admitting a medical expert\u2019s opinion that a child had been sexually abused, based on the child\u2019s statements and physical evidence found during an examination. We also consider whether admission of the expert\u2019s additional opinion that she would believe the child and diagnose abuse even in the absence of physical evidence constitutes plain error. Because we conclude that admission of the former was proper and admission of the latter did not rise to the level of plain error, we reverse the Court of Appeals decision, vacate its order for a new trial, and remand to that court for consideration of defendant\u2019s remaining issues.\nOn 9 June 2003, defendant was indicted in Cabarrus County for three counts of sexual offense against a thirteen-year-old child, in violation of N.C.G.S. \u00a7 14-27.7(a), and seven counts of taking indecent liberties with a child, in violation of N.C.G.S. \u00a7 14-202.1(a)(2). In each case, the victim was C.H., who is defendant\u2019s daughter. The offenses were alleged to have occurred between late January and early April 2003.\nDefendant was tried at the 9 February 2004 criminal session of Cabarrus County Superior Court. The State\u2019s evidence included testimony from C.H.; E.O., C.H.\u2019s friend to whom she first described the abuse; Sherry Cook, the nurse at the Children\u2019s Advocacy Center where C.H. was taken for evaluation; Rosalina Conroy, M.D. (Dr. Conroy), the pediatrician who examined C.H.; and Detective Larissa Cook, the arresting officer. C.H. testified that, before going to live with defendant, she had been sexually abused by her mother\u2019s former boyfriend. However, this early abuse had not involved any penetration of her vagina. C.H. later went to live with defendant. She testified that defendant had committed various sexual acts on her while she lived with him between January and April 2003, including, inter alia, fondling her breasts, putting his tongue into her vagina, shaving her pubic hair, having her wash his genitals, and twice penetrating her vagina with his fingers while taking a shower with her. Defendant testified in his own defense and denied most of C.H.\u2019s allegations. However, he acknowledged that he had showered with C.H. on two occasions and washed her \u201cprivate areas\u201d while his hand was covered by a wash cloth.\nOn the first day of trial, Dr. Conroy was accepted by the court as an expert in pediatric medicine specializing in child physical and sexual abuse. She testified that she met C.H. on 28 April 2003. Dr. Conroy obtained a medical history from C.H., then conducted a physical examination. During the examination, she observed a notch in the six o\u2019clock position of C.H.\u2019s hymenal ring. She stated that sexual abuse is \u201cone of the only things\u201d that will cause that kind of injury at that location. In addition, Dr. Conroy discovered an irregular scar on C.H.\u2019s posterior fourchette, at the bottom of the hymenal ring. She explained that only ten percent of the sexually abused children she sees show physical signs of the abuse. Dr. Conroy testified that it was her opinion that these physical findings resulted from repeated abuse and were caused by penetration of C.H.\u2019s vagina with a hard object.\nOver defendant\u2019s objection, the trial court allowed the State to recall Dr. Conroy as a witness the following day to clarify her medical findings. Dr. Conroy repeated her testimony that, based on the physical findings, she believed C.H.\u2019s vagina had been penetrated and that it happened more than once. When asked if C.H.\u2019s account was \u201cconsistent with the two injuries\u201d that Dr. Conroy had found and whether C.H.\u2019s case was \u201cconsistent of [sic] sexual abuse,\u201d she answered affirmatively. Dr. Conroy then added that she \u201cbased the bulk of [her] conclusion on [C.H.\u2019s] history\u201d and \u201ceven if there were absolutely no physical findings, [her] conclusion would still be the same, based on [C.H.\u2019s] history . . . [and] plenty of details in that history .. . that she has been sexually abused.\u201d\nThe jury found defendant guilty on all counts and defendant appealed his conviction to the Court of Appeals. On 7 February 2006, a divided panel of that court held that the trial court committed plain error in admitting portions of Dr. Conroy\u2019s second day of testimony. Accordingly, the Court of Appeals ordered that defendant receive a new trial on all counts. State v. Hammett, 175 N.C. App. 597, 625 S.E.2d 168 (2006). In so ruling, the Court of Appeals did not address other issues raised by defendant on appeal. The dissent argued that the trial court had not erred in admitting the statements. The State appealed to this Court based on the dissent.\nBefore this Court, defendant does not challenge Dr. Conroy\u2019s physical findings but argues that all of her opinion testimony was improperly admitted. In response, the State argues that Dr. Conroy\u2019s testimony was admissible or, in the alternative, that its admission did not constitute plain error.\nAs to Dr. Conroy\u2019s testimony on the first day of trial, she stated without objection that she reached her conclusion that C.H. had been abused on the twin bases of C.H.\u2019s history and the physical symptoms consistent with that history. The facts of the case control our determination of whether these two factors are sufficient to support an expert opinion that abuse has occurred. For example, in State v. Trent, the defendant was convicted of first-degree rape and taking indecent liberties with a minor. 320 N.C. 610, 359 S.E.2d 463 (1987). The victim told the examining pediatrician that her father had sexual intercourse with her. Id. at 613, 359 S.E.2d at 465. The pediatrician testified that a pelvic examination of the victim revealed that her hymen was not intact, but no lesions, tears, abrasions, bleeding, or other abnormal conditions had been found. Id. The expert acknowledged that the condition of the hymen would justify a conclusion that the victim had been sexually active, but would not by itself support a diagnosis of abuse. Id. at 614, 359 S.E.2d at 465-66. Noting that the examination had been conducted four years after the alleged abuse, we concluded that the State had failed to establish a sufficient basis for the pediatrician\u2019s expert opinion that the victim had been abused. Id. at 614-15, 359 S.E.2d at 465-66.\nIn State v. Aguallo, we held that an expert\u2019s opinion that the victim in a sexual abuse case was \u201cbelievable\u201d was erroneously admitted when the examination finding physical evidence of penetration had been conducted more than six months after the alleged offense, the victim\u2019s credibility was questioned, and the defendant denied any physical or sexual contact with the victim. 318 N.C. 590, 593, 599, 350 S.E.2d 76, 78, 82 (1986). On retrial, the expert testified that a physical examination revealed a \u201clacerational cut\u201d in the victim\u2019s hymen. State v. Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988). The expert then confirmed this physical finding was consistent with the victim\u2019s pre-examination statement to the expert that the defendant had vaginal intercourse with her. Id. Because the expert\u2019s opinion never implicated the defendant as the perpetrator, we held the opinion that the trauma was consistent with the victim\u2019s story was not the same as an opinion that the witness was telling the truth. Id. at 822-23, 370 S.E.2d at 678. Accordingly, the opinion was admissible. Id.\nIn the case at bar, Dr. Conroy obtained C.H.\u2019s history, then conducted a physical examination shortly after the last alleged act of abuse. Dr. Conroy described the results of the examination as evidence of sexual abuse:\n[Dr. Conroy] Sexual abuse is generally the \u2014 one of the only things that will cause [a hymenal notch], especially in the position where she\u2019s \u2014 where that is, which is at the six o\u2019clock position, and that\u2019s the position that we spent a lot of time looking at because if there is penetrating trauma, that\u2019s where we\u2019re going to see it.\nQ So you see a notch and then you also see it at a specific point that meant something to you?\nA Right, exactly.\nThus, Dr. Conroy testified that her findings were consistent with abuse, though not necessarily by defendant.\nUnder these facts, we conclude that the interlocking factors of the victim\u2019s history combined with the physical findings constituted a sufficient basis for the expert opinion that sexual abuse had occurred. Cf. State v. Stancil, 355 N.C. 266 passim, 559 S.E.2d 788 passim (2002) (per curiam) (finding an inadequate foundation for expert opinion that sexual assault occurred when opinion based only upon an interview with complaining witness unsupported by any physical evidence of abuse despite two physical examinations and a series of tests on the alleged victim). In light of Dr. Conroy\u2019s specialized knowledge in pediatrics and child physical and sexual abuse, her opinion testimony assisted the jury in understanding the evidence presented. N.C.G.S. \u00a7 8C-1, Rule 702(a) (2005) (\u201cIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert. . . may testify thereto in the form of an opinion.\u201d). For the same reason, Dr. Conroy\u2019s similar opinion on the second day of trial that C.H.\u2019s symptoms were consistent with sexual abuse was properly admitted. See Stancil, 355 N.C. at 266-67, 559 S.E.2d at 789.\nThe more difficult issue before us is whether the trial court committed error in admitting Dr. Conroy\u2019s subsequent expert testimony that, based on C.H.\u2019s statements, she would conclude that C.H. had been abused even in the absence of physical symptoms and, if so, whether the error was plain error. Defendant argues the statement reveals that Dr. Conroy reached her opinion because she believed C.H.\u2019s statements and therefore, her testimony was a \u201cdirect comment on [C.H.\u2019s] veracity.\u201d The State responds that Dr. Conroy\u2019s comment was a hypothetical scenario inapplicable to this case.\n\u201cIn 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.\u201d Stancil, 355 N.C. at 266-67, 559 S.E.2d at 789. See also State v. Grover, 142 N.C. App. 411, 417-19, 543 S.E.2d 179, 182-84 (holding the experts\u2019 opinion testimony lacked a proper foundation when there was no physical evidence of sexual abuse and the experts admitted that their conclusions were based solely on the children\u2019s statements that they had been abused), aff\u2019d per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001). Accordingly, Dr. Conroy improperly vouched for C.H.\u2019s credibility when she added to her previous admissible testimony the remark that she would reach the same conclusion based on C.H.\u2019s history alone and that the physical evidence was not a necessary basis for her conclusions. Admission of this part of Dr. Conroy\u2019s testimony was error.\nWe next consider whether admission of this evidence constituted plain error. Defendant raised only a general objection to the recalling of Dr. Conroy on the second day of trial. Defendant did not object specifically to Dr. Conroy\u2019s testimony regarding C.H.\u2019s credibility, nor did defendant later move to strike this testimony. See N.C.G.S. \u00a7 8C-1, Rule 103(a)(1) (2005) (stating that when asserting error regarding a ruling admitting evidence, \u201c[n]o particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court\u201d (emphasis added)); N.C. R. App. P. 10(b) (\u201cIn order to preserve a question for appellate review, a party must have 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. It is also necessary for the complaining party to obtain a ruling upon the party\u2019s request, objection or motion.\u201d (emphasis added)). Accordingly, defendant\u2019s general objection was insufficient to preserve this issue for appellate review.\nWhen such an issue is not preserved in a criminal case, we apply plain error review. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (citations omitted). We find plain error \u201conly in exceptional cases where, \u2018after reviewing the entire record, it can be said the claimed error is a \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u201d \u2019 Thus, the appellate court must study the whole record to determine if the error had such an impact on the guilt determination, therefore constituting plain error.\u201d State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998) (citations omitted), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). Accordingly, we must determine whether the jury would probably have reached a different verdict if this testimony had not been admitted. See State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (explaining that \u201cplain error\u201d is error \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached\u201d), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).\nDefendant contends that the State\u2019s case was not overwhelming and was \u201ctotally dependent\u201d on the relative believability of C.H. and defendant. Therefore, defendant argues, Dr. Conroy\u2019s impermissible vouching for C.H.\u2019s credibility was a fundamental flaw in the proceedings comparable to other cases in which the Court of Appeals has ordered a new trial under plain error review. However, in all but one of the cases cited by defendant in support of this argument, admission of the expert\u2019s testimony was held to be plain error because the opinion that sexual abuse occurred was formed in the absence of any physical findings and the expert relied exclusively upon the victim\u2019s credibility. See State v. Delsanto, 172 N.C. App. 42, 46-49, 615 S.E.2d 870, 873-75 (2005); State v. Ewell, 168 N.C. App. 98, 105-06, 606 S.E.2d 914, 919-20, disc. rev. denied, 359 N.C. 412, 612 S.E.2d 326 (2005); State v. Bush, 164 N.C. App. 254, 259-60, 595 S.E.2d 715, 718-19 (2004); State v. O\u2019Connor, 150 N.C. App. 710, 712, 564 S.E.2d 296, 297 (2002). In the single remaining case cited by defendant, the only physical evidence was abrasions on the victim\u2019s introitus that were not diagnostic of or specific to sexual abuse. State v. Couser, 163 N.C. App. 727, 729-32, 594 S.E.2d 420, 422-24 (2004).\nIn contrast, the case at bar did not rest solely on the victim\u2019s credibility. Dr. Conroy appropriately testified that she could tell \u201cfrom [C.H.\u2019s] physical findings . . . that [C.H.] has been penetrated and ... it has happened more than once.\u201d As the Court of Appeals majority correctly noted, \u201cThat C.H. was likely \u2018repeatedly sexually abused\u2019 by someone was not seriously challenged at trial.\u201d Hammett, 175 N.C. App. at -, 625 S.E.2d at 173. In addition, while defendant denied abusing C.H., he corroborated her testimony that he had taken showers with her and admitted washing her \u201cprivate areas\u201d on two occasions. Defendant\u2019s stated reason for entering naked into the shower with his thirteen-year-old daughter was that \u201c[s]he had bad personal hygiene.\u201d When defendant denied instructing C.H. to wash him in the shower, he was impeached with a prior statement in which he admitted to having C.H. \u201cwash [his] arms and legs.\u201d Defendant then acknowledged instructing C.H. to wash \u201cthe upper part of my chest.\u201d When asked to explain to the jury how having C.H. wash him would help her personal hygiene, defendant conceded, \u201cI have no explanation of that.\u201d\nTherefore, in addition to C.H.\u2019s consistent statements and testimony that defendant had abused her sexually, the jury was able to consider properly admitted evidence that C.H. exhibited physical signs of repeated sexual abuse, defendant\u2019s admissions of bizarre bathing habits with C.H., and defendant\u2019s thoroughly impeached denials that his showers with C.H. had any sexual aspect. Thus, while Dr. Conroy\u2019s statements vouching for C.H. were improper, we believe the jury would not have acquitted defendant if the challenged statements had been excluded.\nWe reverse the decision of the Court of Appeals and vacate its order for a new trial. We remand this case to the Court of Appeals for consideration of the remaining issues raised by defendant.\nVACATED; REVERSED AND REMANDED.", "type": "majority", "author": "EDMUNDS, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Kelly L. Sandling, Assistant Attorney General, for the State-appellant.", "Mark Montgomery for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC MARSHALL HAMMETT\nNo. 83A06\n(Filed 15 December 2006)\n1. Evidence\u2014 expert testimony \u2014 sexual abuse \u2014 victim\u2019s history combined with physical findings\nThe trial court did not err by admitting a medical expert\u2019s opinion that a child had been sexually abused based on the child\u2019s statements and physical evidence found during an examination, because: (1) the expert\u2019s opinion never implicated the defendant as the perpetrator, and thus, the opinion that the trauma was consistent with the victim\u2019s story was not the same as an opinion that the witness was telling the truth; (2) the interlocking factors of the victim\u2019s history combined with the physical findings constituted a sufficient basis for the expert opinion that sexual abuse had occurred; and (3) in light of the expert\u2019s specialized knowledge in pediatrics and child physical and sexual abuse, her opinion testimony assisted the jury in understanding the evidence presented.\n2. Evidence\u2014 expert opinion \u2014 belief of sexual abuse absent physical evidence \u2014 plain error analysis\nThe trial court did not commit plain error by admitting an expert\u2019s opinion that she would believe the child and diagnose abuse even in the absence of physical evidence, because while the expert\u2019s statements vouching for the minor child were improper, the jury would not have acquitted defendant if the challenged statements had been excluded when: (1) the case at bar did not rest solely on the victim\u2019s credibility; and (2) in addition to the minor child\u2019s consistent statements and testimony that defendant had abused her sexually, the jury was able to consider properly admitted evidence that the child exhibited physical signs of repeated sexual abuse, defendant\u2019s admissions of bizarre bathing habits with the child, and defendant\u2019s thoroughly impeached denials that his showers with the child had any sexual aspect.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 175 N.C. App. 597, 625 S.E.2d 168 (2006), reversing a judgment entered 11 February 2004 by Judge Steve A. Balog in Superior Court, Cabarrus County and granting defendant a new trial. Heard in the Supreme Court 13 September 2006.\nRoy Cooper, Attorney General, by Kelly L. Sandling, Assistant Attorney General, for the State-appellant.\nMark Montgomery for defendant-appellee." }, "file_name": "0092-01", "first_page_order": 150, "last_page_order": 157 }