Opinion
No. COA12–502.
2013-04-2
STATE of North Carolina v. John C. McLEAN.
Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar, for the State. Kevin P. Bradley, for Defendant.
Appeal by defendant from judgment entered 19 January 2012 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 22 October 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar, for the State. Kevin P. Bradley, for Defendant.
ERVIN, Judge.
Defendant John C. McLean appeals from a judgment sentencing him to 317 to 390 months imprisonment based upon his conviction of first-degree sex offense. On appeal, Defendant argues that three different witnesses were erroneously permitted to vouch for the credibility of the alleged victim and that the trial court erroneously overruled his objection to a prosecutorial argument commenting on Defendant's actions and demeanor during the trial. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court committed prejudicial error by admitting testimony from an investigating officer describing the reasons that the alleged victim's mother was charged with committing a criminal offense arising from the same set of circumstances underlying the charge for which Defendant was convicted in this case and that Defendant is entitled to a new trial.
I. Factual Background
A. Substantive Facts
In April 2010, T.R. lived at her cousin's home with her mother and brothers. About three months prior to the incident which led to Defendant's conviction, Tracy's mother met Defendant. Subsequently, Defendant and Tracy's mother developed a friendship and would get together approximately two days each week in order to smoke marijuana and discuss job opportunities.
T.R. will be referred to throughout the remainder of this opinion as “Tracy,” a pseudonym used for ease of reading and to protect the child's privacy.
On 27 April 2010, Defendant came to the residence at which Tracy and her family resided in order to make dinner for the family. After dinner, everyone watched movies and listened to music. When the person who was supposed to pick him up never arrived, Defendant was given permission to spend the night at the family home.
At bedtime, Defendant was told to sleep on the floor by the kitchen while Tracy and other members of her family occupied their usual places in the living room. Although Tracy was usually wrapped in a blanket while she slept, she had a tendency to develop nosebleeds if she became overheated. As a result, Tracy's mother would occasionally remove Tracy's covers in an attempt to prevent nosebleeds. Tracy's mother had informed Defendant about the existence and cause of Tracy's nosebleeds. As far as Tracy's mother was aware, Defendant was already sleeping when she fell asleep on the couch.
At trial, Tracy testified that she had never seen Defendant prior to night of the incident in question. As Tracy fell asleep beside her brothers on the living room floor, her mother was lying in Defendant's lap on the couch. At the time that she went to bed, Tracy was under a blanket and was wearing a shirt, shorts, and underwear. Later that night, Tracy awoke to find Defendant's head between her legs. According to Tracy, Defendant had pulled aside her shorts and underwear, had placed his tongue on the outside of her vagina, and had inserted his fingers into her vagina. Defendant went to the bathroom after Tracy pushed him away.
Tracy did, however, tell an investigator for the Wake County Department of Social Services that she had seen Defendant on a prior occasion.
At the time when Tracy discovered Defendant “between her legs,” Tracy's mother was lying on the floor. While Defendant was in the bathroom, Tracy woke her mother and told her what had occurred. After her mother, to Tracy's disappointment, failed to do anything, Tracy went to sleep in her cousin's room, where she thought that she would be safe. On the following morning, Tracy took a shower and left for school while Defendant and her mother were still asleep. Although Defendant woke up briefly and said goodbye, his eyes were still closed at that time.
Tracy's mother gave a slightly different account of the events which occurred on the night in question during her trial testimony. Tracy's mother testified that, upon waking up in the middle of the night, she saw Tracy awake and sitting in a chair. At that point, Defendant was asleep near the kitchen floor. According to Tracy's mother, Tracy stated that Defendant had put his finger on, rather than underneath, her underwear and that Defendant's “face was down there.” Tracy's mother denied having been asleep when the children left for school on the following morning; instead, she claimed to have helped to get the children ready and to have seen them off to school.
After arriving at school, Tracy spoke with Shannon O'Neal, a guidance counselor with whom she had a good relationship. Ms. O'Neal took Tracy into her office in order to speak with her after Tracy came to her in tears. Ms. O'Neal described Tracy as visibly shaken and scared during their conversation. Although Tracy told Ms. O'Neal that Defendant had put his mouth on her private area, she made no mention of digital penetration having occurred. In addition, Tracy told Ms. O'Neal that her mother had been in a separate room when she reported Defendant's actions during the night. After learning of Tracy's claim of abuse, Ms. O'Neal called the police.
Detective Robert Pike of the Raleigh Police Department interviewed Tracy in Ms. O'Neal's presence. Although she told Detective Pike that Defendant had put his mouth on her private area, Tracy never said that Defendant had put his fingers in her vagina. In addition, Tracy told Detective Pike that, after she pushed him away, Defendant went back and laid down with her mother for about five minutes before going to the restroom.
Rose Anyanwu, a sexual abuse investigator with the Wake County Department of Social Services, was also called to the school to speak with Tracy. Tracy told Ms. Anyanwu that Defendant had pulled down her pants and that she felt that “his face was inside her vagina.”
On 26 May 2012, a Child Medical Evaluation was performed upon Tracy. After obtaining an overall history, the physicians involved in the Child Medical Examination process conducted a routine physical examination, during which they carefully examined the child's genital area. During this examination, Tracy asserted for the first time that she had been digitally penetrated. Dr. Elizabeth Ann Gaddy Whitman, who evaluated Tracy, observed nothing out of the ordinary while conducting Tracy's physical examination. However, Dr. Whitman indicated that there are no physical findings in ninety-six percent of sexual abuse cases. In addition, Lauren Rockwell, an expert in evaluating children for abuse and neglect, interviewed Tracy on 26 May 2010 for approximately fifteen minutes. At the conclusion of the Child Medical Examination, Dr. Whitman and Ms. Rockwell recommended that Tracy receive counseling from a “mental health professional who specialized in treatment of children ... who are victims of sexual abuse.”
Detective Eric Emser of the Raleigh Police Department, who served as the lead investigator with respect to this incident, interviewed a number of witnesses. Tracy's mother initially told Detective Emser, who spoke with her on the day after Defendant allegedly abused Tracy, that her daughter had not reported the incident to her until the next morning before going to school. Subsequently, however, Tracy's mother admitted that Tracy had told her about the incident during the night. Tracy's mother told Detective Emser that, when she asked Tracy if Defendant had used his tongue or rubbed or touched her, Tracy simply stated that his face was just “down there” and that she had not reported the incident to the police because she did not know what to do.
Defendant, on the other hand, told investigating officers that he had seen Tracy wrapped tightly in her blanket and called her name in an attempt to get her to unwrap herself. Tracy did not, however, respond. As a result, Defendant grabbed Tracy's covers and pulled them in an attempt to keep her from overheating and developing a nosebleed. In addition, Defendant voluntarily provided Detective Emser with a DNA sample. Although the underwear which Tracy had been wearing on the night in question was tested for the presence of saliva and semen, the test results were negative.
B. Procedural History
On 3 June 2010, a warrant for arrest charging Defendant with two counts of first degree sexual offense was issued. On 26 July 2010, the Wake County grand jury returned a bill of indictment charging Defendant with two counts of first degree sexual offense. The charges against Defendant came on for trial at the 17 January 2012 criminal session of the Wake County Superior Court before the trial court and a jury. On 19 January 2012, after the presentation of the State's evidence and after Defendant rested without presenting evidence, the jury returned a verdict convicting Defendant of first degree sexual offense based on Tracy's contention that Defendant engaged in cunnilingus with her and acquitted Defendant of a second count of first degree sexual offense based upon Tracy's contention that Defendant had digitally penetrated her. At the conclusion of the ensuing sentencing hearing, the trial court sentenced Defendant to a term of 317 to 390 months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Impermissible Vouching for Alleged Victim's Credibility
In his initial challenge to the trial court's judgment, Defendant contends that the trial court committed prejudicial error by permitting Tracy's mother, Ms. Rockwell, and Detective Emser to vouch for Tracy's credibility during the course of their trial testimony. A portion of Defendant's argument has merit.
In his brief, Defendant asserts that the admission of the challenged evidence violated various provisions of the federal and state constitutions. However, Defendant did not advance any of these constitutional claims before the trial court. As a result, given that “a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal,” State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982), we conclude that Defendant's constitutional claims have not been properly preserved for our review.
1. Standard of Review
“When the admissibility of evidence by the trial court is preserved for review by an objection, we review the trial court's decision de novo.” State v. Martinez, ––– N.C.App. ––––, ––––, 711 S.E.2d 787, 789 (2011). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). However, “[i]t is well established that the erroneous admission of ... evidence[ ] is not always so prejudicial as to require a new trial.” State v. Ramey, 318 N.C. 457, 470, 349 S.E.2d 566, 574 (1986). In order to “show prejudicial error resulting from a violation of the Rules of Evidence alone, absent a constitutional issue, defendant must show that ‘there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.’ “ State v. Angel, 330 N.C. 85, 91, 408 S.E.2d 724, 727 (1991) (quoting N.C. Gen.Stat. § 15A1443 (a) (1988)).
2. Relevant Legal Framework
“The jury is the lie detector in the courtroom and is the only proper entity to perform the ultimate function of every trial—determination of the truth.” State v. Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986). As a result, according to well-established North Carolina law, “a witness may not vouch for the credibility of a victim,” State v. Giddens, 199 N.C.App. 115, 121, 681 S.E.2d 504, 508 (2009), aff'd363 N.C. 826, 689 S.E.2d 858 (2010), regardless of whether the improper vouching occurs during the testimony of an expert witness, State v. Dixon, 150 N.C.App. 46, 52, 563 S.E.2d 594, 598 (2002) (stating that “[e]xpert opinion testimony is not admissible to establish the credibility of the victim as a witness”), aff'd356 N.C. 428, 571 S.E.2d 584 (2002), or the testimony of a lay witness. State v.. Freeland, 316 N.C. 13, 16–17, 340 S.E.2d 35, 36–37 (1986) (holding that the trial court erred by allowing the alleged victim's mother to testify that her daughter tells the truth). As a result, an expert witness is entitled to testify that a child had been sexually abused based on a combination of physical findings and a history taken from the alleged victim, State v. Hammett, 361 N.C. 92, 96, 637 S.E.2d 518, 521 (2006); State v. Dick, 126 N.C.App. 312, 314–16, 485 S.E.2d 88, 89–90,disc. review denied,346 N.C. 551, 485 S.E.2d 88 (1997), and that the symptoms exhibited by an alleged victim were consistent with those exhibited by abused individuals, State v. Hall, 330 N.C. 808, 817–18, 412 S.E.2d 883, 887–88 (1992); State v. Aguallo, 322 N.C. 818, 822, 370 S.E .2d 676, 678 (1988); State v. Kennedy, 320 N.C. 20, 31–32, 357 S.E.2d 359, 366 (1987); State v. Teeter, 85 N.C.App. 624, 626–30, 355 S.E.2d 804, 806–08,disc. review denied, 320 N.C. 175, 358 S.E.2d 76 (1987), on the theory that such testimony does not constitute impermissible vouching for the prosecuting witness' credibility. On the other hand, expert witnesses are not entitled to testify that an individual had been sexually abused based solely on the victim's history, See, e.g., State v. Towe, ––– N.C. ––––, ––––, 732 S.E.2d 564, 568 (2012); State v. Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788, 789 (2002), or that the alleged victim's testimony was credible or believable. See, e.g., Kim, 318 N.C. at 621, 350 S.E.2d at 351;State v. Aguallo, 318 N.C. 590, 598–99, 350 S.E.2d 76, 81 (1986). Based upon this logic, this Court has prohibited the admission of testimony that the alleged victim's allegations had been “substantiated” at the conclusion of a Department of Social Services investigation. Martinez, ––– N.C.App. at ––––, 711 S.E.2d at 789–90;Giddens, 199 N.C.App. at 121–22, 681 S.E.2d at 507–08. The reach of the prohibition against the admission of testimony vouching for the credibility of the prosecuting witness in a sexual abuse case is not, however, unlimited, given that the admission of evidence deemed “incidental” to a physician's explanation of the reasons which led him to conclude that an alleged victim had been sexually assaulted, State v. O'Hanlan, 153 N.C.App. 546, 555, 570 S.E.2d 751, 757–58 (2002), cert. denied, 353 N.C. 158, 593 S.E.2d 397 (2004); evidence explaining why an alleged victim had waited to report the alleged crime, Dick, 126 N.C.App. at 316–17, 485 S.E .2d at 90, or why an officer had failed to have additional scientific testing performed, O'Hanlan, 153 N.C.App. at 561–63, 570 S.E.2d at 761–62; and evidence that an alleged victim suffers from post-traumatic stress disorder or other mental disorders utilized to explain aspects of the alleged victim's conduct, Hall, 330 N.C. at 821–23, 412 S.E.2d at 890–91, or to rebut allegations that the alleged victim was mentally unstable, O'Hanlan, 153 N.C.App. at 560–61, 570 S.E.2d at 760–61, have been deemed admissible. We will now evaluate the validity of Defendant's challenges to the trial court's judgment in light of these legal principles and the applicable standard of review.
B. Admissibility of Disputed Testimony
1. Testimony of Tracy's Mother
On direct examination, Tracy's mother testified that:
Q. As a result of the investigation were you charged in connection with this incident?
A. Yes.
Q. And do you recall what you were charged with?
A. Misdemeanor child abuse.
[DEFENSE] Objection, your Honor.
THE COURT: Overruled.
Q. Go ahead.
A. Misdemeanor child abuse.
Q. And did you plead guilty or not guilty?
A. I pled guilty.
According to Defendant, the State used the evidence tending to show that Tracy's mother pled guilty to misdemeanor child abuse “to support her trial claim of what [Tracy] told her and when over her initial claim of what [Tracy] told her and when.” Assuming, without in any way deciding, that the admission of the challenged portion of Tracy's mother's testimony was erroneous and that the objection lodged by Defendant's trial counsel was sufficient to preserve Defendant's challenge to the admission of this testimony for purposes of appellate review, we are unable to see how it prejudiced Defendant. The statement made by Tracy's mother constituted, at most, an oblique affirmation of Tracy's credibility, since a juror would have to assume, given the absence of an explicit explanation for Tracy's mother's actions, that the decision by Tracy's mother to enter a guilty plea stemmed from knowledge that her daughter's claim was true in order to reach that conclusion. Obviously, some individuals enter guilty pleas for reasons other than an acknowledgement of guilt, such as a desire to bring an unpleasant matter to a conclusion or a recognition that the evidence against them is of sufficient strength to suggest that limiting the damage one sustains by entering a negotiated plea rather than going to trial is the best option. In addition, the basis for the State's decision to charge Tracy's mother with misdemeanor child abuse was not specified during the testimony in question. Finally, as the Supreme Court stated in addressing a similar situation, “the jury would naturally assume that [the alleged victim's mother] was prejudiced in favor of her daughter and believed that her daughter was telling the truth.” Freeland, 316 N.C. at 18, 340 S.E.2d 37. As a result, we do not believe that there is any reasonable possibility that, had the trial court precluded Tracy's mother from acknowledging that she had entered a guilty plea to a misdemeanor child abuse charge stemming from the incident in question, Defendant would have been acquitted. Thus, Defendant is not entitled to relief based upon his challenge to the admission of this evidence.
As a result of our decision that any error that resulted from the admission of the testimony of Tracy's mother to the effect that she entered a guilty plea to a charge of misdemeanor child abuse stemming from the incident at issue here was harmless under the standard enunciated in N.C. Gen.Stat. § 15A–1443(a), we need not address Defendant's contention that his trial counsel failed to provide him with constitutionally adequate representation by failing to object to the challenged testimony.
2. Testimony of Ms. Rockwell
At trial, Ms. Rockwell testified that:
Q. After you do your component of the actual interview and [Dr. Whitman] documents the medical evaluation, is there any further steps that you as a team take with respect to a child?
A. We formulate a report together which includes the interview.
[DEFENSE] Objection, your Honor.
THE COURT: Overruled.
[A.] The interview portion and the physical exam. And we also discuss any recommendations we feel need to be made for that child's physical safety and whether we feel like that child may need a CFE or whether that child may need some mental health intervention.
Q. I think that you said that typically—CFE, a child family evaluation ... is when you feel you need more. Did you feel that was necessary?
A. We didn't feel so, no.
Q. Did you make any other recommendations were available after meeting with her?
[DEFENSE]: Objection, your Honor.
THE COURT: She can testify as to her personal knowledge of what she testified they did. Overruled.
[A.] We recommended, of course, the child be followed through DSS for her safety and also get counseling from a mental health professional who specialized in treatment of children with—who are victims of sexual abuse.
According to Defendant, Ms. Rockwell's testimony that she recommended that Tracy receive counseling from an individual who specialized in treating sexually abused children was tantamount to the expression of an opinion that Tracy had, in fact, been sexually abused. We do not find this argument persuasive.
Although Ms. Rockwell recommended that Tracy get counseling from “a mental health professional” specializing “in [the] treatment of children with—who are victims of sexual abuse,” she never asserted that Tracy had been sexually abused or explicitly commented upon Tracy's credibility. Instead, the challenged testimony was delivered during the course of Ms. Rockwell's description of what she and Dr. Whitman did at the conclusion of the Child Medical Examination performed upon Tracy. In other words, Ms. Rockwell's testimony constituted nothing more than a recitation of fact and did not purport to be the expression of an expert opinion of any nature. As a result of the fact that Ms. Rockwell was entitled to describe the steps that she took during her involvement in this matter and the fact that any inference which the jury might have drawn from the fact that Ms. Rockwell referred Tracy for counseling by individuals with expertise in addressing the problems experienced by sexually abused children would have stemmed from a statement which was “incidental” to Ms. Rockwell's explanation of her own conduct, we are unable to say that the trial court erred by overruling Defendant's objection to the admission of this testimony. O'Hanlan, 153 N.C.App. at 555, 570 S.E.2d at 757–58. Thus, Defendant is not entitled to relief from the trial court's judgment based upon the admission of this evidence.
3. Testimony of Detective Emser
Finally, Detective Emser testified on direct examination that:
Q. At some point during the investigation did you also take out charges on [Tracy's mother]?
A. I did. After consulting with the District Attorney's office it deemed appropriate to charge her with misdemeanor child abuse.
Q. And for what purpose was that?
[DEFENSE]: Objection, your Honor.
THE COURT: Overruled.
Q. Okay.
A. For the purpose of allowing her child to be placed in an environment that was obviously hazardous to her health and along with her failure to report a clear and obvious criminal act upon her child.
According to Defendant, Detective Emser's explanation for his decision to charge Tracy's mother with misdemeanor child abuse amounted to a ringing assertion that his investigation revealed that Tracy had, in fact, been the victim of a criminal act on the night in question and that Tracy's mother had failed to respond to that series of events in an appropriate manner. Defendant's contention has merit.
As we have already noted, this Court held in Giddens that the trial court erred by allowing the admission of evidence that Department of Social Service investigators “found evidence throughout the course of [their] investigation to believe that the alleged abuse and neglect did occur,” 199 N.C.App. at 118, 681 S.E .2d at 506 (alterations in original), and in Martinez that the trial court erred by allowing the admission of evidence that the Department of Social Services had “substantiated” a claim of abuse. ––– N.C.App. at ––––, 711 S.E.2d at 789–90. Thus, this Court has clearly indicated that testimony concerning the result of an official investigation during which those involved reached the conclusion that the allegedly criminal conduct had, in fact, occurred is inadmissible. In the challenged portion of his testimony, Detective Emser plainly stated that he charged Tracy's mother with misdemeanor child abuse because Tracy had been subjected to “an obviously criminal act.” The only criminal act of which the jury had any indication was Tracy's allegation that Defendant had sexually abused her. Although the manner in which Detective Emser phrased his testimony was somewhat less direct than the testimony at issue in Giddens and Martinez, we are unable to distinguish it from the testimony held to be inadmissible in those two decisions in any meaningful way given that, at bottom, the challenged portion of Detective Emser's testimony cannot be understood as anything other than an emphatic “statement that a State agency had concluded Defendant was guilty.” Giddens, 199 N.C.App. at 121–22, 681 S.E.2d at 508. In addition, the logical process needed to understand the testimony at issue here as an impermissible vouching for the alleged victim's credibility is not materially different from the logic which has led this Court and the Supreme Court to overturn numerous convictions based upon the admission of expert testimony that the alleged victim had been sexually abused despite the absence of any physical findings supportive of that conclusion. Thus, the trial court erred by overruling Defendant's objection to the question eliciting Detective Emser's explanation for his decision to charge Tracy's mother with misdemeanor child abuse.
We do not believe that the fact that Detective Emser was a law enforcement officer while the witnesses at issue in Giddens and Martinez were social workers has any bearing on the proper disposition of this case given that both law enforcement officers and social workers are charged, in the ordinary course of their work, with conducting a thorough investigation of disputed facts and coming to a conclusion as to what actually happened.
Although the State has advanced a number of arguments in opposition to Defendant's challenge to the admissibility of the challenged portion of Detective Emser's testimony, we do not find any of them persuasive. For example, the State argues that the challenged testimony was admissible for the purpose of responding to Defendant's argument that Tracy “did not immediately report [D]efendant's sexual assault to her mother” and “confirm[ing] the sequence of events on the night of 27 April 2010 when defendant sexually assaulted a twelve-year old girl.” After carefully reviewing the record, we are unable to see how the admission of testimony that Officer Emser charged Tracy's mother with misdemeanor child abuse for allowing Tracy to be subjected to Defendant's criminal conduct served either of the purposes described by the State. In addition, although Tracy's mother admitted having been charged with misdemeanor child abuse, her testimony to that effect does not obviate the impact of Detective Emser's testimony, which went far beyond a mere description of the charges that had been lodged against Tracy's mother to asserting that Tracy had, with certainty, been the victim of criminal conduct. Finally, the fact that Detective Emser did not explicitly vouch for Tracy's credibility cannot obscure the fact that our cases do not require that impermissible vouching for the credibility of a prosecuting witness reach any particular degree of explicitness and the fact that the challenged portion of Detective Emser's testimony cannot be reasonably understood in any way other than as an assertion that Defendant had sexually abused Tracy, as the State claimed, and that Tracy's mother had been criminally charged for failing to respond to Defendant's conduct in an appropriate manner. Thus, none of the State's arguments in support of the admissibility of the challenged testimony have merit.
In addition, we are unable to accept the State's contention that any error committed by the trial court in the course of admitting the challenged testimony was harmless. At trial, given that, as in Giddens and Martinez, “there was no physical evidence of sexual abuse,” Martinez, –––N.C.App. at ––––, 711 S.E.2d at 790, the only direct evidence of Defendant's guilt was provided by means of Tracy's testimony, which the State attempted to bolster with the testimony of witnesses who recounted prior consistent statements that Tracy had made to them. In his statement to investigating officers, which was admitted into evidence, Defendant denied having abused Tracy. As a result, “this case turned on the credibility of the victim, who provided the only direct evidence against” Defendant. Towe, ––– N.C. at ––––, 732 S.E.2d at 568. Moreover, given that Tracy told conflicting stories about what Defendant did at the time of and after the alleged abuse, “[t]he record indicates that [Tracy's] recitations of [D] efendant's actions were not entirely consistent.” Towe, ––– N.C.App. ––––, 732 S.E.2d at 568. The fact that the jury acquitted Defendant of one of the two charges that had been lodged against him suggests that the jury had doubts about the credibility of at least some portions of Tracy's trial testimony. Finally, as was the case with the social workers whose testimony was at issue in Giddens and Martinez, given the fact that investigating law enforcement officers are charged with the responsibility for conducting a fair and dispassionate investigate before initiating criminal charges against anyone, the jury “most likely gave [Detective Emser's] opinion more weight than a lay opinion.” Giddens, 199 N.C.App. at 122, 681 S.E.2d at 508. For all of these reasons, we conclude that the facts of this case are indistinguishable from the facts of other cases in which this Court and the Supreme Court have found that the erroneous admission of similar testimony vouching for the credibility of the alleged victim rose to the level of plain error. As a result, in light of the fact that Defendant objected to the question which led to the admission of the challenged portion of Detective Emser's testimony and must, for that reason, satisfy a less stringent prejudice standard, we are unable to conclude that there is no “reasonable possibility that, had the error in question not been committed, a different result would have been reached” at Defendant's trial. N.C. Gen.Stat. § 15A–1443(a). Therefore, Defendant is entitled to a new trial.
In view of our decision to grant Defendant a new trial based upon the admission of Detective Emser's explanation of the basis for his decision to charge Tracy's mother with misdemeanor child abuse, we need not address the validity of Defendant's challenge to the prosecutor's closing argument to the jury.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court committed prejudicial error by overruling Defendant's objection to Detective Emser's explanation of the reason that Tracy's mother was charged with misdemeanor child abuse. As a result, Defendant is entitled to a new trial.
NEW TRIAL. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).