HUNTER, JR., ROBERT N., Judge.
Defendant argues the trial court committed reversible error in both the guilt-innocence and sentencing phases of his trial. For the following reasons, we grant Defendant a new trial and address several issues that are likely to arise on remand.
I. Factual and Procedural Background
A Surry County grand jury indicted Defendant for three counts of first-degree sexual offense with a child under thirteen (N.C. Gen.Stat. § 14-27.4(a)(1)) and two counts of first-degree statutory rape of a child under thirteen (N.C. Gen.Stat. § 14-27.2(a)(1)). Defendant entered pleas of not guilty to all charges.
The uncontested evidence at trial tended to show the following. Between 1994 and 1999, Defendant and Susan Barnhart were married and had three children: two sons and a daughter named "Shirley."
The State's evidence tended to show the following. On 1 November 2007, Ms. Barnhart took Shirley to see Dr. Sarah Ryan because Shirley was having abdominal pains. (Ms. Barnhart thought Shirley might be starting her menstrual cycle.) During the physician visit, Dr. Ryan noticed irritation and redness near the lower vaginal area and a "shiny" line that could have been a scar; this prompted her to ask if there had been any abuse. Prior to this moment, Shirley did not tell anyone her father had sexually abused her, and both Shirley and her mother initially denied any sexual abuse had occurred.
The following day, Shirley's mother took Shirley to the Mount Airy Police Department to file a report, where Officer Vanessa Vaught interviewed Shirley. Officer Vaught testified Shirley told her that Defendant had touched her (Shirley's) genital area, digitally penetrated her vagina, held her down when she asked him to stop, rubbed his penis on her genitals, and asked if he could put his penis in her vagina.
Several weeks later, Shirley was taken to Wake Medical Center's child sexual abuse team, where clinical social worker Nicole Alderfer interviewed her. Ms. Alderfer testified Shirley told her that Defendant had digitally penetrated her vagina, fondled her breasts, engaged in genital to genital contact, and engaged in penile-vaginal penetration.
Ms. Alderfer also testified as follows:
Shirley underwent a physical examination on the same day she was interviewed by Ms. Alderfer. Dr. Denise Everett, who examined Shirley, testified the genital examination revealed a normal hymen. Dr. Everett also testified that a tear in the hymen could heal within a day or two, and a nine-year-old girl could heal from trauma such that there would not be any evidence of prior trauma. She stated that even though there were no signs of physical injury to Shirley's genital area, the hymen could appear normal even after penetration by a penis. She also testified that the "lack of any findings would not be inconsistent with sexual abuse."
The following exchange occurred between Dr. Everett and the prosecutor:
Defendant's former sister-in-law, Bridget Dawn Leftwich, also testified Defendant had touched her inappropriately in 1997, when she was ten. Specifically, Ms. Leftwich stated that in early December of 1997, Defendant picked her up and took her into another room and "started rubbing [her] vagina." She stated that Defendant rubbed her vagina for "probably five to ten minutes" and then left the room without saying anything. The trial court admitted this evidence, over Defendant's objection, to establish Defendant's identity as the perpetrator and motive to commit the crime.
Defendant did not testify, but he offered testimony from Ms. Mitchell and Rebecca Peters—the social worker who investigated Defendant after Shirley's allegations. Both testified they did not witness any sexual abuse. Ms. Mitchell testified she was present "all the time" during the summer of 2007 and never saw Defendant sexually abuse Shirley. Ms. Peters testified Defendant denied ever touching Shirley inappropriately and agreed to cooperate with the Department of Social Services. Ms. Peters also testified she made "approximately" one visit per week, until March of 2008, after which she did not make any more visits to Defendant's residence.
Defendant gave oral notice of appeal on the date of his conviction and sentencing. Because Defendant entered a plea of not guilty as to all charges, he was entitled to appeal his conviction as a matter of right, and we have jurisdiction over the appeal of his conviction. See N.C. Gen.Stat. § 7A-27(e) (2009) ("From any . . . order or judgment of the superior court [not described in N.C. Gen.Stat. § 7A-27] from which an appeal is authorized by statute, appeal lies of right directly to the Court of Appeals."); N.C. Gen.Stat. § 15A-1444(a) (2009) ("A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.").
Because we have held SBM orders are civil in nature, Defendant was required give notice of appeal of the SBM order pursuant to N.C. R.App. P. 3(a) to confer jurisdiction on this Court. State v. Brooks, ___ N.C.App. ___, ___, 693 S.E.2d 204, 206 (2010). Recognizing that he has failed to comply with Rule 3(a), Defendant asks us to treat his brief as a petition for certiorari. In the interest of justice, we allow Defendant's petition for certiorari and elect to review the civil orders pertaining to lifetime sex offender registry and SBM.
A. Expert Testimony
Defendant argues Dr. Everett's testimony impermissibly bolstered Shirley's credibility in the eyes of the jury. Defendant failed to object to the testimony at trial; therefore, he must establish the trial court committed plain error. N.C. R.App. P. 10(a)(4).
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)) (alterations in original). We must determine whether, absent the alleged error, the "jury probably would have returned a different verdict." State v. Davis, 321 N.C. 52, 59, 361 S.E.2d 724, 728 (1987). The error must be so grave as to have "denied the defendant a fair trial and quite probably tilted the scales against him." State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993).
Under the North Carolina Rules of Evidence, a qualified expert may testify as to her opinion in her field of expertise if the testimony will assist the jury in understanding the evidence. N.C. R. Evid. 702(a). An expert may not, however, testify as to the witness's credibility or state that she believes the defendant is guilty. State v. Heath, 316 N.C. 337, 341-42, 341 S.E.2d 565, 568 (1986).
In sexual abuse cases involving child victims, an expert may not testify that sexual abuse has occurred without physical evidence supporting her opinion. State v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam). An expert may
Defendant contends Dr. Everett's testimony amounted to a statement that Shirley had been the victim of sexual abuse. Dr. Everett stated seventy to seventy-five percent of sexually abused children show no clear physical signs of abuse. When asked whether she would put Shirley in that group, Dr. Everett responded that she would. Thus, Dr. Everett testified Shirley was sexually abused, but showed no physical symptoms of abuse. Stancil plainly prohibits this type of testimony.
The dispositive issue, then, is whether the trial court's failure to intervene sua sponte constituted plain error. This Court has previously found plain error in similar cases when the victim's credibility is critical because there is little or no other direct evidence of sexual abuse. See State v. Delsanto, 172 N.C. App. 42, 44-49, 615 S.E.2d 870, 872-75 (2005) (finding plain error and providing an extensive discussion of case law on this point); State v. Ewell, 168 N.C. App. 98, 105-06, 606 S.E.2d 914, 919-20 (2005) (finding plain error where "the only evidence linking defendant to [victim] were her statements and other witnesses' corroborative testimony"); State v. Bush, 164 N.C. App. 254, 259, 595 S.E.2d 715, 718-19 (2004) (finding plain error where victim's "credibility was questionable as to the sexual abuse for a number of reasons" and physician's testimony amounted to "a stamp of credibility"); State v. Couser, 163 N.C. App. 727, 731, 594 S.E.2d 420, 423 (2004) (finding plain error because State's only direct evidence of abuse was victim's testimony, which was corroborated by other witnesses). Dr. Everett's testimony placed a stamp of approval on Shirley's testimony. Without the doctor's testimony, it is highly plausible that the jury could have reached a different result. We hold the admission of Dr. Everett's testimony amounted to plain error. Below, we address several issues that may arise during Defendant's new trial. See, e.g., Coleman v. Coleman, 89 N.C. App. 107, 109, 365 S.E.2d 178, 180 (1988) (addressing non-dispositive issues "likely to arise on remand").
B. Uncharged Conduct Evidence
Defendant argues Ms. Leftwich's testimony was inadmissible under North Carolina Rules of Evidence 401-404. We decline to analyze in detail whether the trial court erred in admitting the evidence because our review of the record suggests the trial court intended, but failed, to admit this evidence for the purpose of demonstrating a common plan or scheme. (The trial court remarked that the incidents were sufficiently similar for the purposes of establishing motive, identity, and common plan or scheme, but ultimately did not mention common plan or scheme when announcing the court's decision on Defendant's motion to exclude the 404(b) evidence or in the jury instructions.) We note, however, that the admission of this evidence was clearly problematic in at least one respect: the trial court failed to determine whether the purposes for which the evidence was offered were at issue.
While a criminal defendant's identity can always be labeled a "material fact," State v. Jeter, 326 N.C. 457, 458, 389 S.E.2d 805, 806 (1990), a defendant's identity is not necessarily at issue (i.e., material) within the meaning of Rule 401, State v. Parker, 113 N.C. App. 216, 224, 438 S.E.2d 745, 750 (1994); State v. White, 101 N.C. App. 593, 600, 401 S.E.2d 106, 110 (1991); see also N.C. R. Evid. 401 commentary (stating that, although the statutory definition of relevance
Should the State seek to reintroduce the uncharged conduct evidence on remand, we trust the trial court will determine the materiality of each purpose for which the evidence is offered in addition to conducting the other steps in the uncharged conduct analysis. See, e.g., T.M. Ringer, A Six Step Analysis of "Other Purposes" Evidence Pursuant to Rule 404(b) of the North Carolina Rules of Evidence, 21 N.C. Cent. L.J. 1 (1995). The trial court should also be careful to articulate whether the evidence is admissible to establish common plan or scheme, as it appears, based on our review of the record and the parties' briefs, there was confusion on this matter below.
Defendant raises several arguments with respect to his criminal sentence and the trial court's order requiring him to register as a sex offender and for SBM. We decline to address these arguments in detail. However, should Defendant's new trial result in conviction, we trust the trial court will ensure Defendant's rights are adequately protected during sentencing, see, e.g., N.C. Gen.Stat. § 15A-1340.16(a6) (2009) (requiring 30-day written notice before trial of intent to seek a probation point); N.C. Gen.Stat. § 15A-1022.1 (2009) (providing sentencing hearing protections), and will review the pertinent SBM and sex offender registry case law, see, e.g., State v. Davison, ___ N.C.App. ___, ___, 689 S.E.2d 510, 517 (2009) (holding that only the elements of a conviction may be considered as part of SBM analysis); State v. Treadway, ___ N.C.App. ___, ___, 702 S.E.2d 335, 348 (2010) (holding N.C. Gen. Stat. § 14-27.4(a)(1) is not an aggravated offense).
Defendant is entitled to a new trial because it was plain error to admit expert testimony that Shirley had been sexually abused.
Judges McGEE and BEASLEY concur.
22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5246, 514-15 (1978) (footnotes omitted).