Opinion
No. COA10-546
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgments entered 3 December 2009 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 27 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Susannah B. Cox, for the State. Russell J. Hollers III for defendant-appellant.
Wake County Nos. 08 CRS 64385-395, 08 CRS 64397-400.
Defendant Emmanuel Ngene appeals from his convictions of four counts of first degree rape, three counts of first degree sexual offense, four counts of incest, and four counts of indecent liberties with a child. He contends, on appeal, that the trial court erred in excluding his testimony regarding a purported 2006 sexual assault of his daughter and an affidavit from the headmistress of his daughter's former school concerning this same alleged incident. Because defendant's testimony was inadmissible hearsay and the affidavit did not qualify for admission under Rule 804(b)(5) of the Rules of Evidence, the trial court did not err in excluding defendant's evidence. Although we agree with defendant that a social worker's testimony that defendant's daughter had in fact been sexually abused should have been excluded, defendant, who did not object at trial, failed to demonstrate that any error rose to the level of plain error.
Facts
The State's evidence tended to show the following facts. C.N. ("Cindy") was born 9 November 1998 in Nigeria. In June 2007, Cindy, her mother, and two younger siblings came to the United States to live in a two-bedroom apartment in Raleigh, North Carolina with defendant, Cindy's father. Cindy's parents began arguing about money, and defendant was upset that his wife was not as obedient as she had been in Nigeria. Defendant's wife was also refusing to have sex with him.
The pseudonym "Cindy" is used throughout this opinion to protect the minor's privacy and for ease of reading.
One day in August 2007, defendant asked Cindy to help him check his email on the computer in his bedroom. After they had finished with the email, defendant told Cindy to stay in the room while he went into the bathroom. He came out wearing only his underwear and a t-shirt. He asked her if she knew what sex was and then pulled down her pants while she was lying on the bed. He pulled off his underwear, got on top of her, and had vaginal intercourse with her.
Over the course of Cindy's fourth grade school year, defendant engaged in vaginal intercourse with Cindy approximately 10 times. Approximately three of these times, defendant had her turn over on her stomach so he could also penetrate her anus. In August 2008, Cindy finally disclosed to her mother what defendant was doing.
On 31 August 2008, Cindy's mother took Cindy to the emergency room at Wake Med where they met with a nurse, Kimberly Lewis, and a doctor, Dr. Chris Johnson. Ms. Lewis did a head-to-toe assessment of Cindy and observed bruises on her arms. Cindy told her the bruises came from a broomstick. Cindy also informed Ms. Lewis that she had been sexually assaulted many times.
Dr. Johnson took a basic history and examined Cindy to determine if she needed immediate treatment. Cindy told him that defendant had been having vaginal and anal intercourse with her over the past year. Because she had not been assaulted within the past 72 hours, Dr. Johnson did not perform a rape kit. Dr. Johnson's examination of Cindy was limited to her external genitalia and looking for signs of trauma, of which he saw none. He diagnosed Cindy with alleged sexual abuse. He noticed that Cindy appeared somewhat shy and that her mother was "appropriately concerned and worried."
The hospital notified Wake County Human Services ("WCHS") and the Raleigh Police Department ("RPD") of the allegations. Katie Treadway of WCHS and Officer Harvey of RPD arrived at the hospital to interview Cindy. After describing the sexual conduct, Cindy also informed them that one time she bled after defendant had sex with her. She also stated that sometimes defendant "peed on her," and she had to go in the bathroom to clean herself up. Ms. Treadway felt Cindy was very detailed in her description of the events.
Dr. Denise Everett, a pediatrician specializing in sexual abuse, examined Cindy on 15 September 2008. During the physical exam, she looked closely at Cindy's genitals using a colposcope, which provides magnification, has a light source, and can take pictures. She observed that Cindy had "a nearly complete transection of the hymen at five to 6:00 when she was lying on her back." Dr. Everett testified that she would not expect to see such a tear in a normal exam because it is indicative of penetration. She also noted a "vaginal mucosal ridge" in the same area as the tear. She explained that such a ridge would normally be covered by the hymen and that the ridge is also indicative of penetration. Dr. Everett stated that she could not determine when this injury occurred, but that her findings were consistent with the descriptions of sexual abuse that Cindy had given.
Stacey Drake, a licensed clinical social worker with WCHS, met with Cindy over the course of eight months, beginning in January 2009. Ms. Drake used trauma-focused behavioral therapy and worked with Cindy in writing a narrative of her life experiences. Through this method, Cindy disclosed and discussed what happened with defendant in the chapters entitled "the first time," "a different time," and "the last time." The descriptions were similar to the ones Cindy had given before regarding the first occurrence of vaginal intercourse, a second time during which she had bled, and a final time during which defendant engaged in vaginal intercourse followed by anal intercourse.
On 22 September 2008, a Wake County grand jury returned 15 separate bills of indictment, charging defendant with four counts of indecent liberties with a child, four counts of incest, three counts of first degree sexual offense, and four counts of first degree rape. Following trial, the jury found defendant guilty of all 15 counts and also found the existence of an aggravating factor: that defendant had taken "advantage of a position of trust or confidence to commit the offense or offenses." The trial court entered 15 separate judgments. The court sentenced defendant to four consecutive aggravated-range sentences of 300 to 369 months imprisonment for the four counts of first degree rape; three consecutive aggravated-range sentences of 300 to 369 months imprisonment for the three counts of first degree sex offense; four consecutive presumptive-range sentences of 16 to 20 months imprisonment for the four counts of incest; and four consecutive presumptive-range sentences of 16 to 20 months for the four counts of indecent liberties with a child. Defendant timely appealed to this Court.
I
Defendant first contends that the trial court erred in not allowing him to testify regarding his claim that Cindy had been sexually assaulted in 2006 by someone else while in Nigeria. He argues that this evidence was admissible under N.C.R. Evid. 412(b) because it provided an alternative explanation for the pediatrician's physical findings. Although Rule 412 generally excludes evidence of a complainant's prior sexual behavior as irrelevant, it provides an exception for "evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant." N.C.R. Evid. 412(b)(2).
Here, defendant testified during voir dire that, in 2006, he received a call from his wife that Cindy had been sexually assaulted at school, was walking funny, and was bleeding. He claimed that he flew home to Nigeria and transferred Cindy from Graceland Private School, where the assault had supposedly occurred, to another school. When Cindy and her mother were questioned on voir dire, however, each denied that any sexual assault had occurred. Cindy acknowledged changing schools, but her mother explained that she had moved Cindy to a different school because Graceland Private School was too expensive.
While defendant contends that his testimony was relevant under Rule 412(b)(2), he does not address its admissibility under the hearsay rule. His testimony sought to admit out-of-court statements made by his wife and his daughter for the truth of the matter asserted: to establish that Cindy was sexually assaulted by someone else in 2006. See N.C.R. Evid. 801(c) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"). It is, of course, fundamental that "[h]earsay is not admissible except as provided by statute or by these rules." N.C.R. Evid. 802.
Defendant has not pointed to any applicable exception to the hearsay rule. In each of the cases relied upon by defendant in support of the admissibility of his testimony, no hearsay issue arose. See State v. Ollis, 318 N.C. 370, 376, 348 S.E.2d 777, 781 (1986) (holding that trial court erred under Rule 412(b)(2) in excluding testimony of child victim that she had also been raped by another man on same day she claimed she had been raped by defendant); State v. Wright, 98 N.C. App. 658, 662, 392 S.E.2d 125, 128 (1990) (holding that trial court erred, under Rule 412(b)(2), in excluding testimony by victim's grandmother that she had actually observed child masturbating with washcloth and fingers). Even if defendant's evidence is relevant under Rule 412(b), he must still demonstrate that it does not constitute inadmissible hearsay. Because he has failed to address that issue, we hold that the trial court did not err in excluding defendant's testimony.
In a related argument, defendant also contends that the trial court erred when it excluded an affidavit asserting that Cindy was sexually assaulted by a student in Nigeria. This affidavit was a statement sworn before a United States Consul in Nigeria by "Ikediashi P.O. (Mrs.)," the headmistress of Graceland Private School, the school Cindy attended while living in Nigeria. In her statement, Mrs. Ikediashi wrote that Cindy was a pupil at the school from 2003 through May 2006. She further stated:
In April 2006, [Cindy's] mother Mrs. Nancy Chinyere Ngene reported to the school authority that her daughter was penetrated by a pupil in the school. According to her, the discovery was made when [Cindy] was down with [sic] very high fever. On trying to bath [sic] her, it was discovered that her virgina [sic] was very painful to touch. On interrogation, she confessed to have [sic] been penetrated by a pupil at school.
Unfortunately, her mother pulled her out of the school soon after and never waited for investigation/action to be taken on the matter by the school authority.
Defendant also presented to the trial court a section from the Graceland 2005 school yearbook to show that Cindy was enrolled at the school and that Mrs. Ikediashi was the headmistress.
Defendant again sought to admit this evidence under Rule 412(b)(2). At trial, the State argued that the statement was hearsay and that the only exception under which it could possibly fall would be the residual exception, N.C.R. Evid. 804(b)(5). After the State argued that the statement was "lacking any indicia of reliability" and, therefore, was inadmissible under Rule 804(b)(5), the trial court sustained the State's objection to the admission of the document. The trial court stated: "After reviewing the statement and the arguments and taking a look at the statement attached thereto, the objection to the introduction of the evidence is sustained."
On appeal, defendant argues that the trial court erred in sustaining the State's objection without conducting the six-step inquiry set out in State v. Triplett, 316 N.C. 1, 8-9, 340 S.E.2d 736, 741 (1986), and making the necessary findings of fact and conclusions of law, including particularized findings and conclusions regarding the trustworthiness of the evidence. Defendant further argues that, in any event, the record contains no indication that the trial court believed the evidence to be untrustworthy.
This issue is controlled by our Supreme Court's recent decision in State v. Sargeant, ___ N.C. ___, ___, 707 S.E.2d 192, 195 (2011), in which the defendant argued that the trial court had erred in excluding, under Rule 804(b)(5), a co-defendant's written statement. The Court first explained that in deciding the admissibility of hearsay under Rule 804(b)(5),
"the trial court must determine the following: (1) whether proper notice has been given, (2) whether the hearsay is not specifically covered elsewhere, (3) whether the statement is trustworthy, (4) whether the statement is material, (5) whether the statement is more probative on the issue than any other evidence which the proponent can procure through reasonable efforts, and (6) whether the interests of justice will be best served by admission."
___ N.C. at ___, 707 S.E.2d at 196 (quoting State v. Valentine, 357 N.C. 512, 517-18, 591 S.E.2d 846, 852 (2003)). Here, as in Sargeant, there is no serious dispute regarding any of the elements other than whether the statement is trustworthy. Id. at ___, 707 S.E.2d at 196.
The Court in Sargeant, ___ N.C. at ___, 707 S.E.2d at 196 (quoting Valentine, 357 N.C. at 518, 591 S.E.2d at 852-53), then explained:
"When determining the trustworthiness, the following considerations are at issue: (1) whether the declarant had personal knowledge of the underlying events, (2) whether the declarant is motivated to speak the truth or otherwise, (3) whether the declarant has ever recanted the statement, and (4) whether the declarant is available at trial for meaningful cross-examination."
The Court emphasized that "[w]hen ruling on an issue involving the trustworthiness of a hearsay statement, a trial court must make findings of fact and conclusions of law on the record." Id. at ___, 707 S.E.2d at 196.
Although defendant has argued that a new trial is warranted by the trial court's failure, in this case, to make the required findings of fact and conclusions of law, the Sargeant Court also was confronted by inadequate findings. The Court explained the standard of review on appeal: "If the trial court either fails to make findings or makes erroneous findings, we review the record in its entirety to determine whether that record supports the trial court's conclusion concerning the admissibility of a statement under a residual hearsay exception." Id. at ___, 707 S.E.2d at 196. If the appellate court concludes that the trial court erred in excluding the evidence, then the court must consider whether the defendant was prejudiced by that exclusion. Id. at ___, 707 S.E.2d at 197.
Based on our review of the record, it is apparent that the trial court excluded defendant's proposed evidence under the trustworthiness prong. In accordance with the mandate in Sargeant, we have reviewed the record in its entirety to determine whether the record supports the trial court's conclusion that Mrs. Ikediashi's written statement was not admissible under Rule 804(b)(5).
While defendant argues that the basis for the trial court's ruling is not clear, the State objected to the admission of the affidavit on the grounds that it was "lacking any indicia of reliability just upon its face," and the trial court sustained that objection. The record contains no indication that any other element of the pertinent analysis was seriously at issue.
Turning to the first factor regarding trustworthiness — whether the declarant had personal knowledge of the underlying events — the statement itself establishes Mrs. Ikediashi's lack of personal knowledge. Her statement is based on double hearsay: Cindy's mother's report of what Cindy told her mother. Further, the statement on its face indicates that Mrs. Ikediashi conducted no investigation, so she could not have acquired any information apart from what Cindy's mother reported. In addition, as the State points out, Mrs. Ikediashi's statement identifies Cindy's mother as "Nancy Ngene," while the State presented evidence that the mother's actual name was "Mary Ngene."
Defendant presented no evidence regarding Mrs. Ikediashi's motivation to speak the truth (the second factor). On the other hand, there is no indication that Mrs. Ikediashi ever recanted (the third factor). As for the fourth factor, defendant made no showing that the State could have any meaningful opportunity to cross-examine Mrs. Ikediashi at trial given that she was in Nigeria. See Sargeant, ___ N.C. at ___, 707 S.E.2d at 197 (pointing out that, although co-defendant was unavailable to defendant because of co-defendant's reliance on Fifth Amendment, State had granted co-defendant immunity and could, therefore, call co-defendant for cross-examination regarding his written statement). While there may be some means by which the State could have cross-examined Mrs. Ikediashi, defendant has pointed to none on appeal and has made no argument why that factor should not support a conclusion that the statement was inadmissible.
In sum, Mrs. Ikediashi had no personal knowledge at all regarding whether Cindy was sexually assaulted in Nigeria in 2006. There is no evidence in the record indicating that Mrs. Ikediashi had a motive to tell the truth or to fabricate, although there is also no evidence that Mrs. Ikediashi ever recanted. Finally, defendant has pointed to no means by which the State would have an opportunity for meaningful cross-examination of Mrs. Ikediashi.
Consequently, the only factor supporting admissibility was the absence of any recantation. Especially given the complete lack of any personal knowledge of the issue involved, we hold that defendant has failed to demonstrate that the trial court erred, under Rule 804(b)(5), in excluding Mrs. Ikediashi's statement. Compare id. at ___, 707 S.E.2d at 198 (holding that trial court erred in excluding co-defendant's written statement when, contrary to trial court's findings, Supreme Court determined that evidence indicated co-defendant had personal knowledge and never recanted, while trial court's determinations as to co-defendant's motivation to speak truthfully and his availability for cross-examination were based on inaccurate and incomplete findings of fact).
II
Defendant also contends that the trial court erred by allowing Stacey Drake to testify that she had diagnosed Cindy as having been sexually abused and that she did not believe that Cindy had been "coached." Because defendant did not object to the testimony at trial, he asks us to review its admission for plain error. "Reversal for plain error is only appropriate where the error is so fundamental that it undermines the fairness of the trial, or where it had a probable impact on the guilty verdict." State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002).
On direct examination, the State asked Ms. Drake:
Q. Now, as part of the assessment and the treatment process, do you do what — make a diagnosis of the child?
A. Yes.
Q. And what was your diagnosis of [Cindy]?
A. I gave her three. First one was adjustment disorder unspecified.
. . . .
Q. And you said there were three. So what is your next item?
A. Sexual abuse of a child victim.
Q. And third?
A. Physical abuse of a child victim.
Defendant argues that Ms. Drake should not have been allowed to testify that she had diagnosed Cindy as being sexually abused.
Our Supreme Court has held: "In 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). See also State v. Grover, 142 N.C. App. 411, 414, 420, 543 S.E.2d 179, 181, 184 (holding that trial court erred in allowing clinical social worker to testify that she "` confirmed that [the child victim] is a sexually abused child'" when pediatric nurse practitioner had found no physical evidence of abuse), aff'd per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001).
In this case, although the State did present physical evidence of sexual abuse through the testimony of Dr. Everett, this evidence was not presented until after Ms. Drake testified and was not cited as a basis for Ms. Drake's opinion. Since there is no indication that Ms. Drake reached her diagnosis based on anything other than her assessment of Cindy's credibility, admission of Ms. Drake's diagnosis that Cindy was sexually abused violated Stancil. See State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598 ("[A]n expert medical witness may render an opinion pursuant to Rule 702 that sexual abuse has in fact occurred if the State establishes a proper foundation, i.e. physical evidence consistent with sexual abuse." (emphasis added)), aff'd per curiam, 356 N.C. 428, 571 S.E.2d 584 (2002).
Defendant also argues that the trial court erred in allowing Ms. Drake to express her opinion that Cindy had not been coached. On direct examination, the State asked:
Q. Miss Drake, are you familiar with the term perhaps of coaching?
A. Yes.
Q. What does that mean to you?
A. To me coaching references that someone is trying to get someone else to say something for the benefit of that person.
Q. And as part of your therapy with a child in assessing a child, do you look for evidence of that?
A. It becomes apparent whether or not a child's been coached in terms of their consistency, what they say, how quickly they can respond to something. There is loopholes in — in what they say and do and that did not take place with [Cindy].
Q. You did not see in your treatment of her any evidence of coaching?
A. No.
Defendant did not object at trial to this line of questions and answers and does not challenge it on appeal.
Instead, he argues that the trial court erred in admitting the following testimony that was elicited during cross-examination:
Q. Okay. So then a child could be influenced by an adult to make up something.
A. Probably in some cases, but in this case I couldn't say that that would be the case.
. . . .
Q. There is no — there is no scientific investigatory way for a clinical social worker to be able to evaluate whether something is true or false when a child says it to you.
A. I don't put her on a machine that will decide whether or not she is telling me the truth, but based on experience, based on multiple interactions with children, you get a feel and flavor for truth and not truth and consistency in the way they present themselves and with the knowledge I have every time, you know, her story did not fall apart.
Defendant argues that this testimony on cross-examination was "naked vouching, and the trial court should not have allowed it to be repeated to the jury."
As defendant argues, an expert witness is not allowed to express an opinion regarding a witness' credibility (or, in other words, "vouch" for the witness' credibility). See, e.g., State v. Aguallo, 318 N.C. 590, 598-99, 350 S.E.2d 76, 81 (1986) (concluding, when pediatrician testified, "`I think she's believable,'" that admission of testimony was error because it "amounted to an expert's opinion as to the credibility of the victim"). Nonetheless, it is well established that "[s]tatements 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) (declining to review whether trial court properly admitted social worker's testimony regarding defendant's credibility when testimony was elicited on cross-examination), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008).
Therefore, even if error, the testimony challenged by defendant in this case amounted to invited error. "[A] defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review." State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001), disc. review denied, 355 N.C. 216, 560 S.E.2d 141 (2002).
Finally, while allowing Ms. Drake to testify regarding the diagnosis of sexual abuse may have been error, we hold that defendant has failed to demonstrate that it constituted plain error. The State presented substantial physical evidence of sexual abuse. Cindy's own testimony was detailed and clear, and the State presented the testimony of Dr. Johnson, Ms. Treadway, Officer Lewis, and Ms. Drake regarding Cindy's prior statements, all of which were consistent with Cindy's trial testimony. Further, defendant himself elicited evidence that Cindy was not likely coached. Finally, defendant did not present admissible evidence of any alternative explanation for the essentially undisputed physical evidence. We do not believe that, in the absence of Ms. Drake's diagnosis, the jury would probably have reached a different verdict.
No error.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).