Opinion
NO. COA12-174
10-16-2012
STATE OF NORTH CAROLINA v. DETARVIS TRAVIS FARROW, Defendant.
Roy Cooper, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State. Law Office of Mark Montgomery, by Mark Montgomery, for defendant—appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Durham County
No. 08 CRS 044888
Appeal by defendant from judgment entered 16 June 2011 by Judge Craig Croom in Durham County Superior Court. Heard in the Court of Appeals 27 August 2012.
Roy Cooper, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State.
Law Office of Mark Montgomery, by Mark Montgomery, for defendant—appellant.
MARTIN, Chief Judge.
Defendant Detarvis Travis Farrow was charged in true bills of indictment with first-degree sexual offense with a child under the age of 13 years, taking indecent liberties with a child, and crime against nature. A jury found defendant guilty on each charge. Judgment was entered upon the jury's verdict sentencing defendant to not less than 252 months and not more than 312 months of imprisonment. Defendant was also ordered to register as a sex offender and enroll in lifetime satellite-based monitoring.
Defendant is referred to as "Detarvio" Travis Farrow throughout defendant—appellant's brief and in the trial transcript; however, the judgment from which defendant appeals renders his name "Detarvis" Travis Farrow and thus he is so denominated on appeal.
The evidence at trial tended to show that defendant and the mother of the alleged victim, P.T., began dating in October 2003 when P.T. was almost 3 months old. Defendant frequently stayed at P.T.'s mother's apartment. In November 2004, defendant and P.T.'s mother had a child together, S.F. Two or three weeks later, the couple split up. Defendant and P.T.'s mother then maintained an intermittent relationship from 2005 until 2008. During this time, P.T. referred to defendant as "daddy" or "dad."
P.T. testified at trial. He related that on a particular occasion defendant told him to go into the bathroom and told him to pull down his pants. Defendant put his hands and mouth on P.T.'s penis. Defendant then told P.T. to put his mouth on defendant's penis. P.T. testified that "pee-pee" went down his throat. P.T. also recalled that the light was off in the bathroom and that the incident occurred in the afternoon, because it was sunny outside.
According to P.T.'s mother, several months later, on or about the evening of 30 January 2008, she was watching a movie at home with S.F. and P.T. S.F. asked to telephone defendant. P.T.'s mother indicated that it was too late to call defendant, and then asked S.F. and P.T. if they missed "daddy." S.F. responded "yes," but P.T. responded "no, because my daddy do bad things to me." P.T. then proceeded to describe to his mother how defendant told him to go into the bathroom and the alleged abuse that followed. P.T.'s mother immediately took the children to her mother's house, where P.T. related the same story to his grandmother. P.T.'s mother then called 911 and took P.T. to the Durham Police Department, where Investigator Harris was summoned. P.T. again related the same story to Investigator Harris that he told his mother and grandmother. P.T. was referred to the Center for Child and Family Health and to the Child Abuse and Neglect Medical Evaluation Clinic, where he began seeing several doctors and therapists.
Following the alleged abuse, P.T. began to exhibit behavioral problems. He experienced nightmares, displayed separation issues, and seemed withdrawn. He also began inappropriately touching his siblings and other school children. However, there was no physical evidence that the alleged abuse had occurred.
Defendant testified and denied all accusations. Defendant presented a defense premised on the theory that P.T.'s mother had coached P.T. into making the allegations in retaliation for claims for custody of S.F. filed by defendant.
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Defendant first contends the trial court erred in admitting expert testimony that amounted to "expert vouching" for the credibility of P.T. Specifically, defendant contends that it was error to allow the State to present expert testimony from psychologist Kelly Sullivan, pediatrician Dr. Karen St. Clair, and clinical social workers Scott Snider and Susan Johnson——each of whom qualified as experts without objection——to testify that abuse in fact occurred when there was no physical evidence of the alleged abuse. Defendant did not object at trial to any of these purported evidentiary errors. Therefore, the standard of review for these unpreserved issues is plain error. N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008).
In North Carolina, "[o]ur appellate courts have consistently held that the testimony of an expert to the effect that a prosecuting witness is believable, credible, or telling the truth is inadmissible evidence." State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988). An expert testifying in child sexual abuse cases "may not testify that sexual abuse has occurred without physical evidence supporting her opinion." State v. Towe, ___ N.C. App. ___, ___, 707 S.E.2d 770, 774 (2011) (citing State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam)), modified and aff'd, _ N.C. ___, ___, ___ S.E.2d ___, ___ (June 14, 2012) (No. 121PA11). Likewise, "[a]n expert may not testify that the child has been 'sexually abused' if the testimony is based solely on the interview with the child-victim." Id. at ___, 707 S.E.2d at 774-75. This prohibition exists because "such testimony is an impermissible opinion regarding the victim's credibility." Stancil, 355 N.C. at 266—67, 559 S.E.2d at 789. "However, 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." Id. at 267, 559 S.E.2d at 789; see also State v. Bush, 164 N.C. App. 254, 258, 595 S.E.2d 715, 718 (2004) ("An expert witness may [use 'consistent therewith' testimony] so as to inform the jury that the lack of physical evidence of abuse is not conclusive that abuse did not occur.").
Defendant argues that the trial court erred by allowing expert witness Susan Johnson to testify: "There were some instances wherein [P.T.] was touching inappropriately, which is another kind of hallmark symptom of children who have been sexually abused is that they will sometimes touch inappropriately." Defendant further complains that Ms. Johnson testified that other behaviors were "consistent with" a child who has been sexually abused. However, Ms. Johnson was accepted by the court as an expert witness in "childhood trauma" without objection from defendant. This permitted her to discuss "the profiles of sexually abused children" and to discuss whether P.T. had "symptoms or characteristics consistent" with those profiles. See Stancil, 355 N.C. at 267, 559 S.E.2d at 789. Ms. Johnson's discussion of "hallmark symptoms" and the use of "consistent therewith" testimony was appropriate under our existing case law. Therefore, defendant's argument with respect to the testimony of Ms. Johnson is without merit.
Defendant next argues the trial court erred when it allowed expert witness Dr. Karen St. Clair to testify as follows on cross-examination when pressed by defense counsel:
Q. But it is possible it could not have happened at all; is that not correct?(Emphasis added.) Defendant did not object to the testimony nor did he move to have it stricken from the record. Defendant now argues that by saying "something absolutely happened to [P.T.]," Dr. St. Clair was in effect testifying that abuse had "in fact" occurred when there was no physical evidence of abuse. However, "[a] defendant is not prejudiced by . . . error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443(c) (2011). "Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law." State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008). Therefore, even assuming arguendo that the testimony was erroneous, defendant may not complain of invited error upon appeal. See State v. Rivers, 324 N.C. 573, 576, 380 S.E.2d 359, 360 (1989). This argument is overruled.
A. I will again answer that in a roundabout way, saying that something happened where [P.T.] gained knowledge about biting and sucking on penises, about pee coming out and going down his throat; he got that knowledge from somewhere. He wasn't just born with that knowledge.
And so my concern is that something absolutely happened to [P.T.]; he told us a specific thing about what happened to him. And so I can't tell you I think nothing happened to him because he had too much sexual knowledge for that.
Defendant next argues that the trial court erred by allowing expert witnesses Sullivan and Johnson to testify in a manner that was the equivalent of testifying that abuse had "in fact" occurred. A careful review of the record demonstrates that defendant's argument is not supported by the record and that defendant mischaracterizes witnesses Sullivan and Johnson's testimony. Therefore this argument is without merit.
Defendant further contends that the trial court committed plain error by allowing expert witness Scott Snider to testify that "it was probable [P.T.] had been sexually abused."
The North Carolina Supreme Court recently clarified the standard for plain error review in State v. Lawrence, ___ N.C. ___, ___, 723 S.E.2d 326, 330—34 (2012). "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." Id. at ___, 723 S.E.2d at 334 (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). A fundamental error is one where "after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty." Id. at ___, 723 S.E.2d at 334 (internal quotation marks omitted). The burden of showing this prejudice is on the defendant. Id. at ___, 723 S.E.2d at 333 (citing State v. Melvin, 364 N.C. 589, 593—94, 707 S.E.2d 629, 632—33 (2010)). The defendant must also "specifically and distinctly" contend that the judicial action in question amounts to plain error. N.C.R. App. P. 10(a)(4); see also State v. Dennison, 359 N.C. 312, 312—13, 608 S.E.2d 756, 757 (2005) (per curiam). Finally, plain error is to be "applied cautiously and only in the exceptional case," where "the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Lawrence, __ N.C. at __ , 723 S.E.2d at 334 (citations and internal quotation marks omitted).
Our Supreme Court has also recently considered plain error in the context of a child sexual abuse case in State v. Towe, __ N.C. ___, ___, ___ S.E.2d ___, ___ (June 14, 2012) (No. 121PA11). In Towe, the Court held that it was plain error for a physician to give her opinion that the victim was, in fact, in a category of sexually abused children who do not exhibit physical symptoms. Id. at __, __ S.E.2d at __. The Court based the plain error determination on three factors: (1) that the case turned on the credibility of the victim, (2) that the victim had given inconsistent accounts of the abuse, and (3) that the expert witness in the case, Dr. Everett, was an extremely qualified and respected doctor whose credentials the State made sure to place before the jury. Id. at __, __ S.E.2d at __. In discussing the third factor, the Court highlighted the "extensive evidence" the State presented of the physician's qualifications. Id. at ___, __ S.E.2d at __. The Court also noted that she "was presented to the jury not only as a physician who is extraordinarily well-versed and experienced in the field of child sexual abuse, but also as the doctor to whom other professionals and experts in the field routinely direct cases when such abuse is suspected." Id. at __, __ S.E.2d at __. The Court concluded that because of "Dr. Everett's unquestioned stature in the fields of pediatric medicine and child sexual abuse . . . [her] testimony stilled any doubts the jury might have had about the victim's credibility or defendant's culpability, and thus had a probable impact on the jury's finding that defendant is guilty." Id. at __, __ S.E.2d at ___.
In the instant case, defendant contends the trial court committed plain error in admitting the testimony of social worker Scott Snider. Defendant claims this testimony prejudiced him by bolstering the credibility of the victim when there was no physical evidence of sexual abuse and probably impacted the outcome of the jury's deliberations. As noted above, there was no physical evidence that P.T. had been abused. Without physical evidence, an expert witness lacks the proper foundation to opine that a victim has in fact been sexually abused. Towe, __ N.C. App. at __, 707 S.E.2d at 774. In State v. Horton, 200 N.C. App. 74, 682 S.E.2d 754, (2009), we held that "allowing expert testimony stating the child had 'more likely than not been sexually abused' was error." Id. at 80, 682 S.E.2d at 758. Witness Snider's testimony that "it was probable [P.T.] had been sexually abused" is of the same ilk as the impermissible testimony in Horton, and we hold it was error for the trial court to permit it. However, after an examination of the entire record, we disagree with defendant's assertion that the error rises to the level of plain error.
As in Towe, the victim's credibility in this case was a central issue. However, unlike in Towe, in the instant case the victim gave consistent accounts of the abuse to his mother, grandmother, Investigator Harris, and several social workers and doctors. Moreover, Mr. Snider is not a renowned physician qualified as an expert on "child sexual abuse," as was Dr. Everett in Towe. See Towe, ___ N.C. at __, ___ S.E.2d at __. Rather, Snider is a licensed clinical social worker who was qualified as an expert in "diagnostic interviewing of children." Snider has a master's degree in social work and has worked on and testified in far fewer cases than had Dr. Everett in Towe. See id. at __, ___ S.E.2d at __. Finally, unlike Dr. Everett, there was no testimony to the effect that Snider was " extraordinarily well-versed and experienced in the field of child sexual abuse" and someone "to whom other professionals and experts in the field routinely directed cases when such abuse is suspected." Cf. id. at __, ___ S.E.2d at __. Because the child witness in this case told a consistent story and because Scott Snider—while qualified—was not of the immense stature as the physician in Towe, we cannot agree with defendant's assertion that the testimony of Snider was a fundamental error that "had a probable impact on the jury's finding that the defendant was guilty." Therefore we hold that witness Snider's testimony, while erroneous, was not plain error.
Defendant next contends that the trial court erred when it allowed lay opinion testimony from P.T.'s mother and grandmother attesting to the truthfulness of his story. Defendant also complains that it was improper to allow Investigator Harris to testify about how children who have been coached behave. None of the testimony was objected to at trial, so again the standard of review is plain error. See Goss, 361 N.C. at 622, 651 S.E.2d at 875. While contending that the testimony was erroneous, defendant omitted any discussion of prejudice in his brief to this Court. When this deficiency was pointed out by the State, defendant purported to address the issue in a reply brief.
The purpose of a reply brief is "limited to a concise rebuttal to arguments set out in the brief of the appellee"—not to fix deficiencies in the appellant's original brief. N.C.R. App. P. 28(h)(3); Beckles-Palomares v. Logan, 202 N.C. App. 235, 246, 688 S.E.2d 758, 765, disc. review denied, 364 N.C. 434, 702 S.E.2d 219 (2010). "Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned." N.C.R. App. P. 28(b)(6); Libertarian Party of N.C. v. State, 365 N.C. 41, 45 & n.1, 707 S.E.2d 199, 202 & n.1 (2011). Plain error review requires the defendant to "specifically and distinctly" contend that the judicial action in question amounts to plain error. N.C.R. App. P. 10(a)(4); see also Dennison, 359 N.C. at 312-13, 608 S.E.2d at 757. The defendant has the burden of showing how the unpreserved error prejudiced the defendant. Lawrence, __ N.C. at __, 723 S.E.2d at 333.
As there was no discussion of prejudice in defendant's brief, and as the purpose of a reply brief is not to correct deficiencies in the original brief, we deem this argument abandoned. See N.C.R. App. P. 28(b)(6). Without a showing of prejudice, defendant cannot meet the threshold for plain error. See State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000) ("[An] empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule."), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). Therefore defendant's entire "lay testimony" argument must be overruled.
Defendant next argues that the trial court erred in admitting into evidence unauthenticated documents. Specifically, defendant claims that the prosecutor should not have been allowed to read from the contents of a document that the prosecutor purported to be a voluntary dismissal of defendant's custody case. Defendant did not object to this evidentiary issue at trial, so the standard of review is plain error. See Goss, 361 N.C. at 622, 651 S.E.2d at 875.
Once again, defendant has not properly brought forth a plain error argument. Instead defendant has made a bare assertion that reading from a document was "fundamentally unfair" and a "windfall" for the prosecution. Defendant has not explained how the purported error prejudiced him in a way that "had a probable impact on the jury's finding that the defendant was guilty." Lawrence, ___ N.C. at ___, 723 S.E.2d at 334 (internal quotation marks omitted). That burden is on the defendant, id. at __, 723 S.E.2d at 333, and his bare assertion does not meet that burden. Cummings, 352 N.C. at 637, 536 S.E.2d at 61. Nor does defendant's assertion that the error was "obvious" meet the required showing. Our Court has stated, "Plain error does not simply mean obvious or apparent error." Bush, 164 N.C. App. at 257, 595 S.E.2d at 717. Instead a defendant must show "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . ." Odom, 307 N.C. at 660, 300 S.E.2d at 378 (internal quotation marks omitted). Therefore, defendant has not properly brought forth a plain error argument. This argument is overruled.
Finally, defendant purports to argue that in the alternative to each of the above issues, that trial counsel was constitutionally ineffective for failing to object. Specifically, defendant repeats the following in each discussion section of his brief:
There could have been no reasonable trial strategy for counsel to have failed to object to this testimony. There is a reasonable probability that, had counsel objected, the trial court would have sustained the objections. There is much more than a reasonable probability that, had the court sustained the objections and the jury not been exposed to this vouching, it would have acquitted. Therefore, the Strickland test has been met.[]
Defendant even uses this same argument after his discussion on document authentication, despite the reference to "vouching" instead of "unauthenticated documents."
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"To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense." State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)), cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006). Deficient performance means that trial counsel's representation did not meet an objective standard of reasonableness. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). An attorney's performance falls below the objective standard of reasonableness when "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 562, 324 S.E.2d at 248 (internal quotation marks omitted). To demonstrate prejudice, the defendant has the burden to show a reasonable probability that, but for counsel's unprofessional errors, the result at trial would have been different. Allen, 360 N.C. at 316, 626 S.E.2d at 286. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Campbell, 359 N.C. 644, 690, 617 S.E.2d 1, 29-30 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006). "Decisions concerning which defenses to pursue are matters of trial strategy and are not generally second-guessed by this Court." State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440, 472 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003). Finally, when reviewing counsel's performance for an ineffective assistance of counsel claim, there is "a strong presumption that counsel's conduct falls within the broad range of what is reasonable assistance." State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986).
After reviewing the entire record, we cannot agree that counsel's performance fell below an objective standard of reasonableness. Trial counsel had a clear strategy to show that P.T. had been coached into making claims against defendant by his mother in retaliation for custody claims filed by defendant. Trial counsel thoroughly cross-examined each of the State's witnesses, made objections, and made a lengthy offer of proof to the court. The record, viewed objectively, does not overcome the strong presumption that counsel gave reasonable assistance, nor does it reveal that defendant's counsel "made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." See Braswell, 312 N.C. at 562, 324 S.E.2d at 248. Additionally, the defendant's "cut and paste" argument fails to demonstrate that there exists a reasonable probability that the jury verdict would have been different such that it undermines our confidence in the outcome of the trial. See Allen, 360 N.C. at 316, 626 S.E.2d at 286. Having satisfied neither prong of the Strickland test, defendant's argument is without merit.
No Error.
Judges GEER and STROUD concur.
Report per Rule 30(e).