Opinion
No. COA09-1478
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgments entered 18 June 2009 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 28 April 2010.
Attorney General Roy Cooper, by Assistant Attorneys General Catherine F. Jordan and Kathleen N. Bolton, for the State. Parish, Cooke Condlin, by James R. Parish, for defendant-appellant.
Onslow County Nos. 08 CRS 54627, 08 CRS 54628, 08 CRS 54629, 08 CRS 54630.
Defendant Gew Dobbs, II appeals from his convictions of first degree sexual offense, sexual offense in a parental role, and five counts of taking indecent liberties with a minor. On appeal, defendant asserts various challenges to the trial court's admission of testimony by both lay and expert witnesses. Because all of the evidence that defendant challenges was either admissible or, if improperly admitted, was not prejudicial, we find no error.
Facts
At trial, the State's evidence tended to show the following facts. In 2008, nine-year-old T.B. lived with her mother, her two brothers, and defendant, her stepfather. When T.B.'s mother was at work on Saturdays, defendant cared for T.B. and her brothers. Beginning when T.B. was six or seven years old, at times while her mother was at work on Saturdays, defendant touched T.B. with his hands and penis in what she called her "private parts," which she confirmed meant both her vagina and buttocks. Defendant put his penis and hand into T.B.'s private parts — T.B. said that was "uncomfortable," and "it hurt sometimes." When T.B. was seven years old, she told her mother that defendant touched her inappropriately, and her mother "fussed at" defendant.
On Saturday, 15 March 2008, T.B.'s birthday, while T.B.'s mother was at work, T.B. went into her mother's bedroom to watch television. Defendant came into the bedroom, laid T.B. on the bed, and removed T.B.'s clothes. Defendant removed his clothes and touched T.B. on her "private parts" with his hand and penis while T.B. laid on her side facing away from defendant. T.B. felt the bed shaking and felt something wet.
On 28 April 2008, T.B. reported to a school social worker, Donna Beswetherick, that on the previous Saturday, while her mother was at work, "she had been taken into [defendant's] room and put on the bed; that [defendant] had taken her shirt off and he had put his hand down her pants and touched her privates." T.B. identified her "privates" to Ms. Beswetherick as being her vagina. Ms. Beswetherick reported T.B.'s disclosure to Child Protective Services that same day.
Also on 28 April 2008, social worker Christy Raley went to T.B.'s residence. Ms. Raley spoke with T.B., her mother, and defendant. T.B.'s mother appeared shocked when she learned what T.B. had reported. Defendant denied touching T.B. inappropriately. T.B. told Ms. Raley that on 26 April 2008, defendant "made her touch his privates," pulled her shorts and underwear down, took his pants off, and touched her "privates" with his hand. She described defendant as digitally penetrating her. She also told Ms. Raley about an incident in which T.B. was lying down next to defendant and the bed shook, although T.B. told Ms. Raley she did not know why the bed shook since she was not facing defendant at the time. Ms. Raley prepared a safety assessment, which provided that defendant was to have no contact with T.B.
On 1 May 2008, Detective Adam Stock with the Onslow County Sheriff's Department interviewed T.B. When Detective Stock showed T.B. an anatomical drawing of a male and asked T.B. to identify the body part with which defendant had touched her, T.B. circled the penis. T.B. told Detective Stock that when her mother went to work on Saturdays, defendant "`like tries to take my clothes off and tries to kiss me, and stuff like that.'" T.B. told Detective Stock that defendant "`just started touching me in my private parts.'" and that he "`does the same thing to me every Saturday.'"
T.B. also reported to Detective Stock that, on one occasion, defendant took her into her mother's bedroom, placed her on the bed, removed her clothes, and touched her vagina. T.B. described herself as facing away from defendant and said that he "`started shaking the bed for a long period of time.'" T.B. estimated that defendant touched her between 10 and 20 times.
On 13 January 2009, defendant was indicted for two counts of first degree sex offense with a child, six counts of indecent liberties with a child, and three counts of sex offense by a person in a parental role. At trial, Ann Parsons, a pediatric nurse practitioner, testified that she evaluated T.B. in May 2008. Prior to the exam, Ms. Parsons received information from a social worker that T.B. had disclosed digital penetration and possible penile penetration by defendant. Ms. Parsons' physical examination of T.B. was normal. There were no scars, bruises, or tears near T.B.'s vagina or anus, and the examination revealed no evidence of acute injury or healed or healing trauma.
Ms. Parsons stated in her report that the "[e]xamination findings neither support nor discount [T.B.'s] clear and consistent disclosure of sexual abuse." She testified that her findings were "consistent with the type of contact alleged and the time since the most recent contact, or most recent event." Dr. Elaine Cabinum-Foeller, a licensed pediatrician and the medical director of Teddy Bear, a children's advocacy center, reviewed Ms. Parsons' medical report and testified that "[i]t is not uncommon that there are no physical findings when we would see a child that made the allegations similar to what [T.B.] made."
Denise Scearce, a social worker who conducted a forensic evaluation, testified that T.B. told her in July 2008 that she felt guilty for reporting defendant's sexual abuse and for leaving her little brother without a father. Ms. Scearce testified that T.B. showed signs of the sexual abuse negatively affecting her, particularly in school.
Although, at trial, defendant denied sexually abusing T.B., one of his cell mates in jail testified that defendant told him that he was in jail "for molesting his child." According to the cell mate, defendant cried and told him that "he had his little girl jerk him off" and that he had her "perform oral sex." The cell mate further testified that defendant told him "he had the little girl by the hand and had it on himself, on his private area, and jerked him off."
The trial court dismissed one count of taking indecent liberties with a minor and one count of sexual offense in a parental role. The jury found defendant not guilty of one count of first degree sexual offense and one count of sexual offense in a parental role. The jury found defendant guilty of one count of first degree sexual offense, five counts of taking indecent liberties with a minor, and one count of sexual offense in a parental role. The trial court sentenced defendant to a presumptive-range term of 240 to 297 months imprisonment for the first degree sex offense conviction and to a concurrent presumptive-range term of 25 to 39 months imprisonment for the sexual offense in a parental role conviction. The trial court consolidated the indecent liberties counts, sentenced defendant to 16 to 20 months, suspended that sentence, and ordered 36 months of supervised probation to commence following the first degree sex offense sentence. Defendant timely appealed to this Court.
I
Defendant first challenges the trial court's admission of testimony by several expert witnesses, contending that the testimony amounted to improper expert testimony that T.B. was telling the truth and had in fact been sexually abused by defendant. It is well established that "[i]n 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's credibility." State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002). An expert witness may, however, "testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith." Id. at 267, 559 S.E.2d at 789.
A. Dr. Elaine Cabinum-Foeller's Testimony
Defendant contends that the trial court improperly admitted the following testimony by Dr. Cabinum-Foeller, given in response to being asked whether children make up stories of sexual abuse:
It is less likely in a younger child. Typically, if children are making things up, it's usually an older child, an adolescent. Younger children often — number one, they may or may not know that something is wrong, and so they're more willing just to say it. And sometimes, based upon some of the details, if they're able to give a lot of details about what may have happened to them, that, to me, shows that they are able to provide — if they're able to provide more details, that makes it a more believable disclosure.
This testimony is materially indistinguishable from the testimony found admissible in State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, disc. review denied, 320 N.C. 174, 358 S.E.2d 57, 64 (1987). In Oliver, a physician had testified that children "don't make up stories about sexual abuse" and that "the younger the child, the more believable the story." Id. at 11, 354 S.E.2d at 533. This Court acknowledged that "expert testimony [is] 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." Id. (internal citation omitted). The Court explained, however, that the physician "did not testify to the credibility of the victim but to the general credibility of children who report sexual abuse. Since such testimony was [the physician's] interpretation of facts within his expertise, and not his opinion upon the credibility of the specific victim, it is not excluded by Rule 405." Id.
While Oliver predates Stancil, our Supreme Court has recently held that Stancil did not represent a substantial shift in legal analysis, and the "opinion did not modify or overrule any previous decisions." State v. Chandler, 364 N.C. 313, 318, 697 S.E.2d 327, 331 (2010). Indeed, subsequent to Stancil, this Court summarized the law regarding expert testimony in this area as follows:
An expert may not testify that a child victim of abuse "is believable, credible, or telling the truth" because this violates the teachings of N.C. Gen. Stat. § 8C-1, Rules 405 and 608(a). State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988); State v. Aguallo, 318 N.C. 590, 598, 350 S.E.2d 76, 81 (1986). The expert may, however, testify with respect to "the credibility of children in general." State v. Oliver, 85 N.C. App. 1, 12, 354 S.E.2d 527, 534, disc. review denied, 320 N.C. 174, 358 S.E.2d 64 (1987). An expert is permitted to testify "as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith." State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002) ( per curiam). An expert may also, if she observes physical evidence of sexual abuse, express an opinion that the child has been sexually abused. Id. at 266-67, 559 S.E.2d at 789.
State v. O'Connor, 150 N.C. App. 710, 712, 564 S.E.2d 296, 297 (first emphasis added), disc. review denied, 356 N.C. 173, 567 S.E.2d 144 (2002).
Defendant, however, points to State v. Horton, ___ N.C. App. ___, 682 S.E.2d 754 (2009), in support of his position. In Horton, the expert witness testified
that, over the course of counseling, the child described details of the alleged sexual abuse, including a moment when Defendant's knee was hurting the child's hip. Defendant allegedly said he was "[s]orry" when he noticed he was hurting the child. At trial, the prosecutor asked [the expert witness]: "As far as treatment for victims, for counseling victims, why would that detail be significant?" After the trial court overruled defense counsel's objection to this question, [the expert witness] responded: "In all of my training and experience, when children provide those types of specific details it enhances their credibility." Defense counsel objected to [the witness'] answer and moved to strike it from the record, but Defendant's objection and motion to strike were both overruled. Because there was no physical evidence presented at trial, [the expert witness'] statement was "an impermissible opinion regarding the victim's credibility." Stancil, 355 N.C. at 266-67, 559 S.E.2d at 789.
Id. at ___, 682 S.E.2d at 757.
In Horton, however, in contrast to Oliver, the expert did not testify generally about the credibility of children in similar circumstances. Instead, she was testifying specifically about what the alleged victim had told her and was explaining why details of the type that the victim had recited enhanced credibility. The testimony regarding credibility was tied specifically to the victim's description of what occurred.
In this case, Dr. Cabinum-Foeller merely testified about the general characteristics of sexually abused children: that they do not tend to make up stories of sexual abuse and that it is even less likely that a younger child is lying about sexual abuse. She did not testify either about T.B. specifically or that sexual abuse in fact occurred. This was permissible testimony. See also State v. Pretty, 134 N.C. App. 379, 387, 517 S.E.2d 677, 683-84 ("[T]he first part of the social worker's statements that `I wouldn't expect a child to make a statement that [her] daddy put [his penis] in [her] mouth because a child wants to protect the people that she's close to and the people that take care of her' is merely the social worker's opinion that abused children generally do not falsely accuse their parents — which is permissible testimony of the characteristics of abused children."), appeal dismissed and disc. review denied, 351 N.C. 117, 540 S.E.2d 745 (1999); State v. Baymon, 108 N.C. App. 476, 482, 424 S.E.2d 141, 144 (1993) ("However, an expert in the area of child sexual abuse may . . . properly testify regarding the credibility of children in general who relate stories of sexual abuse, provided, however, that the probative value of such testimony is not substantially outweighed by the danger of unfair prejudice to the defendant."), aff'd, 336 N.C. 748, 446 S.E.2d 1 (1994).
B. Denise Scearce's Testimony
Defendant also challenges various portions of social worker Denise Scearce's testimony as amounting to testimony that the sexual abuse in fact occurred. He first contends that Ms. Scearce was improperly allowed to testify that, during her forensic evaluation of T.B., "[i]t was important for [Ms. Scearce] to help [T.B.] feel comfortable during the interview, and be able to trust [Ms. Scearce] to talk about the things that really happened to her." (Emphasis added.)
This argument, however, requires taking the statement out of context. This part of Ms. Scearce's testimony occurred during the course of Ms. Scearce's description of what she did during a forensic evaluation and the reason for her approach. In response to a question about whether she would "try to ascertain how the child felt by the disclosures they had made," Ms. Scearce answered, "Yes. Because my concern at that time was whether or not she was in distress and whether or not I may need to kind of help her through that moment." The prosecutor then asked her to explain what she meant when she said she would "help" the child, and Ms. Scearce explained: "At any point when a child is making a disclosure about anything that may be traumatic to them, their response may be that they may cry or they may shut down and not want to continue the interview. It was important for me to help her feel comfortable during the interview, and be able to trust me to talk about the things that really happened to her."
In context, it is apparent that Ms. Scearce was not testifying that T.B.'s allegations "really happened," but rather that Ms. Scearce was following an evaluation process designed to encourage the child to be truthful. In other words, Ms. Scearce was explaining why she proceeded the way she did and what she was doing to enhance the reliability of her process. The focus was on the credibility of the process and evaluation rather than on the credibility of T.B.
This Court has previously held that similar testimony is admissible. In State v. O'Hanlan, 153 N.C. App. 546, 562-63, 570 S.E.2d 751, 761-62 (2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004), a detective was testifying about his investigation of a rape and why he had not had more items scientifically tested. He explained that he "`didn't need much evidence'" because the victim had positively identified her assailant. Id. at 562, 570 S.E.2d at 761. The Court rejected the defendant's argument that this testimony was testimony that the victim had in fact been attacked by the defendant, explaining:
The context in which this testimony was given makes it clear [the detective] was not offering his opinion that the victim had been assaulted, kidnapped, and raped by defendant, but was explaining why he did not pursue as much scientific testing of physical evidence in this case as he would [in] a murder case because the victim in this case survived and was able to identify her assailant. His testimony was rationally based on his perception and experience as a detective investigating an assault, kidnapping, and rape. His testimony was helpful to the fact-finder in presenting a clear understanding of his investigative process.
Id. at 562-63, 570 S.E.2d at 761-62. We hold that Ms. Scearce's testimony similarly was directed towards helping the jury understand her investigative process and did not amount to an impermissible opinion on T.B.'s credibility.
Defendant next points to the following testimony by Ms. Scearce and argues that the italicized portion amounted to testimony that the sexual abuse in fact occurred:
I also stated that [T.B.] stated [sic] feeling afraid of [defendant] and felt threatened that he would hurt her or her mother. [T.B.] had shown signs of how the abuse negatively affected her functioning, particularly in school, leading to failing her grade. She reported having trouble concentrating in school and needing to go talk to a counselor about what had happened. [T.B.] demonstrated behaviors associated with anxiety. She had sudden anxiety attacks, difficulty breathing, chest pains, headaches and stomachaches, and these symptoms ceased when [defendant] was arrested. [T.B.] was able to give details of when the abuse began, which was approximately when her mother became pregnant with her brother.
(Emphasis added.)
While it is preferable for the witness to refer to "alleged abuse," we do not believe that Ms. Scearce's testimony amounts to a statement that the abuse in fact occurred, but rather, when the answer is read as a whole, simply reports pertinent behaviors of T.B., testimony that this Court has previously determined to be relevant. See, e.g., State v. McCall, 162 N.C. App. 64, 71, 589 S.E.2d 896, 900-01 (2004) (expert testimony about symptoms exhibited by victim and whether those symptoms are consistent with symptoms and characteristics of sexually abused children "has been relevant in most cases"); State v. Brown, 195 N.C. App. 460, 673 S.E.2d 167, 2009 WL 368576, *3, 2009 N.C. App. LEXIS 161, *7-8 (Feb. 17, 2009) (unpublished) ("Contrary to defendant's assertion, [the expert] did not state that the children were in fact abused, nor did he vouch for their credibility. Instead, [the expert] offered his observations of B.I.'s and T.I.'s behavior and psychological characteristics, including embarrassment, fear, and fear of retribution.").
Defendant also challenges Ms. Scearce's testimony that "[a] child forensic evaluation is requested from the department of social services in cases where there is child physical, sexual or emotional abuse. . . ." Again, when this testimony is read in context, it is apparent that Ms. Scearce was not testifying that sexual abuse in fact occurred in this case.
Because defendant did not object to this testimony at trial, we review the argument only for plain error.
When Ms. Scearce was first called to testify, she was asked, "What is a child forensic evaluation?" She responded:
It's an evaluation that goes through contact time with interviewing the child, all of the people that are part of the investigation or evaluation, working with the department of social services and reviewing records, medical records, the department of social services' records in order to pull that information together to come up with an evaluation of whether or not the child experienced sexual abuse.
(Emphasis added.) Later, in her testimony, the trial court asked her: "And just to refresh our memory, what is a forensic evaluation?" Ms. Scearce responded to that question with the testimony challenged by defendant, which was a shorthand version of the original testimony that made it clear that a child forensic evaluation is essentially an investigation of allegations of sexual abuse to determine their validity. Although the testimony could have been more precise, we do not believe that the jury would have understood Ms. Scearce to have been testifying that the existence of a report established that sexual abuse had in fact occurred. Therefore, defendant has not demonstrated plain error.
Finally, defendant challenges testimony by Ms. Scearce that it is common for children who have been sexually abused to blame themselves for what happened. She testified:
Defendant did not object to this testimony, but argues that it constitutes plain error.
It's common with children who have — who have been sexually abused where part of the treatment is to work with the guilt[,] the shame of the abuse because, oftentimes, children will blame themselves. They take responsibility for what had happened. And in this situation, [T.B.] was expressing that. She was making comments that, I should have reported him so people would believe me. She was making statements that, you know, she felt her mother did not believe her, and I — it's my opinion that [T.B.] really took responsibility for that, and took it on as her own problem.
This testimony falls squarely within the Supreme Court's holding in Stancil, that an expert witness may "testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith." 355 N.C. at 267, 559 S.E.2d at 789. Defendant has not argued that the State failed to lay a proper foundation and, therefore, the trial court did not err in allowing this testimony.
C. Christy Raley's Testimony
Defendant also argues the trial court improperly admitted the testimony of Christy Raley, a DSS social worker, that she interviewed T.B. because DSS "got a report of alleged sexual abuse," again contending it amounted to an expert opinion that T.B. had in fact been sexually abused. We, however, read that testimony not to be an assertion that T.B. had been abused, but rather an explanation for why Ms. Raley was assigned the case — because there had been an allegation of sexual abuse — and find no error in its admission.
D. Ann Parsons' Testimony
Finally, defendant challenges testimony by Ann Parsons, a pediatric nurse practitioner. He first points to Ms. Parsons' testimony that she did not ask T.B. about the allegations of sexual abuse because "it wasn't in her best interests to be questioned again about the events that had happened." Defendant contends that the reference to "events that had happened" was a "bald conclusory opinion that the child had been sexually abused." Ms. Parsons was, however, simply answering the State's question about why she did not interview T.B. Ms. Parsons did not specifically reference sexual abuse or any of the events T.B. had said occurred. We see no meaningful difference between Ms. Parsons' answer and if she had responded that she did not believe it was in T.B.'s best interests to be asked again about what happened. This testimony is not comparable to that considered to be a conclusion that sexual abuse occurred.
Defendant next points to Ms. Parsons' testimony that the absence of evidence of an acute injury or healed or healing trauma "is consistent with the type of contact alleged and the time since the most recent contact, or most recent event. Examination findings neither support nor discount [T.B.'s] clear and consistent disclosure of sexual abuse." "[O]ur appellate courts have generally upheld the admission of testimony from a medical expert in a sexual abuse case that her observations are `consistent with sexual abuse.'" In re Butts, 157 N.C. App. 609, 618, 582 S.E.2d 279, 285 (2003) (quoting State v. Brothers, 151 N.C. App. 71, 77-78, 564 S.E.2d 603, 607-08 (2002), appeal dismissed and disc. review denied, 356 N.C. 681, 577 S.E.2d 895 (2003)), appeal dismissed and disc. review improvidently allowed, 358 N.C. 370, 595 S.E.2d 146 (2004).
In Butts, the physician had testified that the examination of the alleged victim had revealed no physical injuries, abnormalities, or evidence of sexually transmitted disease, but that these findings were "consistent" with her interview of the victim. This Court observed that the physician "did not testify that the allegations in the juvenile petition were accurate, but only that her examination of [the child] was `consistent' with her interview of him." Id., 582 S.E.2d at 286. The Court, therefore, "conclude[d] that the admission of this testimony was neither error nor plain error." Id. Ms. Parsons' testimony is comparable to that of the physician in Butts and, therefore, admissible.
Defendant, however, also argues that Ms. Parsons' reference to T.B.'s "clear and consistent disclosure of sexual abuse" was impermissible vouching for T.B.'s credibility. Even assuming that this testimony was improper, defendant has not demonstrated that it constituted plain error. In deciding whether an error by the trial court constituted plain error, "the appellate court must examine the entire record and determine if the . . . error had a probable impact on the jury's finding of guilt." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983). Phrased alternatively, we must determine whether any error "might have . . . tilted the scales and caused the jury to reach its verdict convicting the defendant." State v. Tucker, 317 N.C. 532, 540, 346 S.E.2d 417, 422 (1986) (internal quotation marks omitted).
Ms. Parsons' reference to the "clear and consistent" disclosures was juxtaposed with her acknowledgment that there were no physical findings supporting the disclosures. In addition, the jury had an opportunity to judge the clarity and consistency of T.B.'s reports itself. T.B.'s mother, three social workers, a detective, and Ms. Parsons all testified about what T.B. told them. That testimony was substantially consistent with T.B.'s trial testimony. Further, the State presented the testimony of one of defendant's cell mates about defendant's admitting that he had sexually abused T.B. In light of all of the evidence regarding T.B.'s prior statements, T.B.'s own testimony, and the corroboration from the cell mate, we cannot conclude that Ms. Parsons' brief reference to "clear and consistent" disclosures tipped the scales and caused the jury to find defendant guilty.
II
We now turn to defendant's arguments regarding the testimony of several lay witnesses. Under Rule 701 of the Rules of Evidence, "[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."
A. Detective Adam Stock's Testimony
Defendant first contends that the trial court erred in admitting Detective Stock's testimony as to how he investigated T.B.'s allegations and the conclusions he made. Defendant argues that "[t]he officer's testimony could be distilled into `I investigated the case. The child told me the truth. The defendant did it and I arrested him.'" We cannot agree with defendant's characterization of Detective Stock's testimony.
The prosecutor asked Detective Stock how he went about investigating an allegation of child sexual abuse. Detective Stock explained that his first goal was to determine whether a crime occurred. He testified about the forensic interview techniques he uses to interview sexual abuse victims and testified that after an interview of an alleged victim, he then gathers additional facts about the allegations through other interviews. He described the "forensic interview techniques" used with potential victims as "special techniques used to interview small children to elicit the truth."
He testified that, in this case, after he interviewed T.B., he interviewed her mother and defendant. He reported that defendant gave him "a couple of other avenues which [he] did investigate, to ensure that it was not some kind of outside influence on [T.B.]." He explained that he did not charge defendant until almost six weeks after learning of the allegations "[b]ecause [he] needed to conduct a full investigation" and "couldn't go just on what [T.B.] said." He testified: "I had to gather all possible evidence, talk to all possible witnesses, and try to ascertain the facts."
This Court has previously upheld the admission of similar testimony as explaining the nature of the investigative process and rejected any argument that the testimony impermissibly bolstered the victim's credibility. In State v. Wallace, 179 N.C. App. 710, 715, 635 S.E.2d 455, 460 (2006), appeal dismissed and disc. review denied, 361 N.C. 436, 649 S.E.2d 896 (2007), for example, this Court concluded that the trial court properly admitted a detective's testimony about the procedure he used in questioning child witnesses regarding sexual abuse, including his testimony about signs that a child has been coached or has not. See also State v. Friend, 164 N.C. App. 430, 437, 596 S.E.2d 275, 281 (2004) (holding that officer could properly testify regarding fingerprint investigation techniques); O'Hanlan, 153 N.C. App. at 562-63, 570 S.E.2d at 761-62 (holding that detective's "testimony was helpful to the fact-finder in presenting a clear understanding of his investigative process"). Based on these decisions, we hold that the trial court did not err in admitting Detective Stock's testimony.
B. Ms. Dobbs' Testimony
1. Corroboration
Defendant contends that the trial court erred in admitting as corroborative evidence testimony by T.B.'s mother, Ms. Dobbs, about statements made to her by T.B. "One exception to the general bar against admitting hearsay is the prior consistent statement exception to the hearsay rule." State v. Lee, 348 N.C. 474, 484, 501 S.E.2d 334, 341 (1998). Under this exception, "`a witness's prior consistent statements may be admissible to corroborate the witness's in-court testimony.'" State v. Dunston, 161 N.C. App. 468, 472, 588 S.E.2d 540, 544 (2003) (quoting State v. Guice, 141 N.C. App. 177, 201, 541 S.E.2d 474, 489 (2000), appeal dismissed and disc. review allowed in part, 353 N.C. 731, 551 S.E.2d 112 (2001)).
"`Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness.'" Id. (quoting State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980)). The test for whether a previous statement offered in corroboration is admissible is whether the two statements are substantially similar. State v. Harrison, 328 N.C. 678, 682, 403 S.E.2d 301, 304 (1991).
When asked if she questioned T.B. about any prior incidents of abuse, Ms. Dobbs testified:
Well, I asked her if he had touched her any other times. She said, "Yes." She had told me about a particular time she didn't really say the day, but she told me she had been in my bedroom on my bed, where he had taken her clothes off, and she told me that she was laying on the bed on her side and that he was laying behind her, and she told me that she felt him trying to put his private part in her from behind.
(Emphasis added.) Defendant argues that the italicized portion of Ms. Dobbs' testimony was not corroborative of any of T.B.'s testimony.
At trial, T.B. testified generally: "[Defendant] would touch me in my private spots and he would stick his private spots in mine, and sometimes he'll force his privates in mine. . . ." She also testified about a specific incident in her mother's bedroom. According to T.B., she was on the bed and defendant took her clothes off. She was lying on her side, facing away from defendant, who was lying behind her. T.B. indicated that defendant touched her with his hands "and his private part" in a number of locations, including "below" her back, below her stomach and three other locations that were not memorialized in the record: "He touched me right here. He touched me right here, and he touched me right here. (Indicating.)" She further testified that he touched her with his private part "on [her] behind, and on [her] front part."
Even if T.B.'s and her mother's testimony differed slightly, our courts have held that "[v]ariances in detail between the generally corroborative testimony and the testimony of another witness reflect only upon the credibility of the statement." Dunston, 161 N.C. App. at 472, 588 S.E.2d at 544. In State v. Ramey, 318 N.C. 457, 463, 349 S.E.2d 566, 570-71 (1986), the defendant argued that the trial court erred in admitting a prior statement by the victim that defendant had abused him repeatedly since he was five years old when the victim had at trial only testified that a particular incident was not the first time the abuse had happened. In concluding that the statement was corroborative, this Court pointed out that the victim had indicated he had been abused by defendant before, and his prior statements, "although including additional facts not referred to in his testimony, tended to strengthen and add credibility to his trial testimony." Id. at 570, 349 S.E.2d at 574.
Here, T.B.'s testimony regarding the specific incident was almost identical to Ms. Dobbs' testimony. The only difference identified by defendant is Ms. Dobbs' report that T.B. said defendant tried to put his private part in her from behind. Since no one memorialized in the record where T.B. was "[i]ndicating" that she had been touched, it is possible that one of the locations was consistent with Ms. Dobbs' testimony. We cannot know that it was not. In addition, T.B.'s testimony that he touched her with his private part "on [her] behind" and also, while lying behind her, "on [her] front part" is substantially similar to Ms. Dobbs' description.
Defendant's argument that T.B.'s testimony regarding this particular incident did not, on its own, support a finding of penetration while Ms. Dobbs' testimony suggested there was penetration does not preclude a finding of substantial similarity. The testimony of Ms. Dobbs was generally corroborative of T.B.'s testimony regarding this incident. The variance identified by defendant went to T.B.'s credibility and not the admissibility of Ms. Dobbs' testimony. We, therefore, find no error.
2. Rule 404(b)
Defendant next challenges the trial court's admission of testimony by Ms. Dobbs that T.B.'s allegation that defendant "tried to put his private part in her private part from behind" was consistent with the type of sexual acts defendant preferred to engage in with Ms. Dobbs. Defendant argues this testimony was improperly admitted under Rule 404(b) of the North Carolina Rules of Evidence, citing Dunston, 161 N.C. App. at 473, 588 S.E.2d at 544, in which this Court held that testimony by the wife of a defendant charged with first degree sex offense and indecent liberties with a child that the defendant engaged in and liked anal sex was inadmissible under Rule 404(b) even though the State contended that the defendant engaged in anal sex with an underage victim.
Even assuming, arguendo, that Ms. Dobbs' testimony regarding defendant's preferences was inadmissible, we hold that defendant has failed to demonstrate that "there is a reasonable possibility that, had the error . . . not been committed, a different result would have been reached" by the jury. N.C. Gen. Stat. § 15A-1443(a) (2009). T.B. gave consistent accounts of the abuse to her mother, Ms. Parsons, Detective Stock, and three social workers, including a consistent description of the incident when defendant was lying behind her. While there was no physical evidence, Dr. Cabinum-Foeller testified that it is not uncommon for there to be no physical signs of sexual abuse given the manner and time frame alleged by the victim. In addition, defendant admitted to his cell mate that he had abused his stepdaughter. In light of this testimony, we hold that even if error, the admission of Ms. Dobbs' testimony was not prejudicial under the circumstances of this case.
No error.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).