In this Durham County case, the Supreme Court modified and affirmed the Court of Appeals decision finding no plain error when admitting testimony regarding the strength of the state’s principal witness.

In 2016, defendant was indicted for murder and related charges for the death of his neighbor. At trial, the victim’s wife was the principal witness testifying regarding defendant’s assault and stabbing of her husband. A sheriff’s deputy testified regarding this witness’s consistence when recounting the events and noted that he pressed her many times and she did not change her story, remaining “resolute and rock solid.” Defendant did not object to the testimony at trial but raised the issue on appeal.

Reviewing defendant’s appeal, the Supreme Court agreed with the Court of Appeals that admission of the deputy’s testimony did not rise to the level of plain error. The court first explained that admission of the testimony in question was improper, as having a witness vouch for the credibility of another witness is not typically allowed. Although the state argued that this testimony represented evidence of prior consistent statements, the court disagreed, noting that the admitted testimony was not simply repeating statements the deputy heard from the witness, showing consistency. Instead, the deputy’s testimony offered a full description of questioning the witness and why her consistency represented a credible account of the events. The court also explained that Rule of Evidence 608(a) did not allow the deputy’s testimony, as the witness’s credibility was not attacked by opinion or reputation. Slip Op. at 25.

Despite establishing that the deputy’s testimony was improperly admitted, the court could not find plain error. Other sources supported the consistency and credibility of the witness’s testimony, and physical evidence in the record also supported defendant’s conviction. As a result, although the court modified the decision of the Court of Appeals, the defendant’s conviction was affirmed.

Justice Barringer, joined by Chief Justice Newby and Justice Berger, dissented in part and concurred in the result, disagreeing that the admission of the deputy’s testimony was improper but agreeing that the conviction should be affirmed. Id. at 32.

The defendant was indicted for three incidents of sexual abuse against his step-daughter and went to trial. The victim testified at trial about the abuse, and eight other witnesses testified regarding the investigation and corroboration of the victim’s testimony. One of the state’s witnesses was a DSS investigator who interviewed the victim and testified without objection that her agency had “substantiated sexual abuse naming [defendant] as the perpetrator,” meaning that the agency believed the allegations of abuse to be true. The defendant was convicted and appealed. A majority in the Court of Appeals held that the testimony was plain error requiring a new trial.

The Supreme Court agreed and affirmed the appellate court’s ruling. Pursuant to State v. Stancil, 355 N.C. 266 (2002), the state conceded on appeal that it was error to admit expert opinion testimony that the abuse had “in fact” occurred without physical evidence to support the diagnosis. The only question before the state Supreme Court was whether this testimony rose to the level of plain error, since there was no objection made at trial. Here, because there was no direct evidence of abuse and the other witnesses’ testimony only served to corroborate the victim’s account, “the jury’s decision to find the complainant more credible than the defendant clearly formed the basis of its ultimate verdict.” Therefore, consistent with its prior ruling on similar facts in State v. Towe, 366 N.C. 56 (2012), the majority held that “the trial court commits a fundamental error when it allows testimony which vouches for the complainant’s credibility in a case where the verdict entirely depends upon the jurors’ comparative assessment of the complainant’s and the defendant’s credibility.”

Writing in dissent, Justice Newby would have held that the other evidence presented by the state distinguished this case from Towe, and the defendant did not meet his burden under the plain error standard of demonstrating that the outcome of trial likely would have been different without the improper testimony.

The defendant was convicted by a jury of two counts of statutory sexual offense with a child by an adult and one count of first-degree kidnapping based on his repeated sexual assaults of his seven-year-old niece. The trial court sentenced the defendant to prison and ordered him to enroll in satellite-based monitoring (SBM) for life. (1) Based on the defendant’s failure to file a written notice of appeal as required by Rule 3 of the Rules of Appellate Procedure, the court of appeals concluded that it lacked jurisdiction to hear his SBM appeal. The defendant also failed to argue in the trial court that SBM was an unconstitutional search under the Fourth Amendment. The court of appeals declined grant his petition for writ of certiorari and, in the absence of evidence of a manifest injustice, to invoke Appellate Rule 2 to address his unpreserved constitutional argument. (2) A pediatrician that the State tendered as an expert testified without objection that children don’t tend to make up stories about sexual abuse, and that the victim “gave excellent detail” and that her story was “very consistent.” The court of appeals found no error, noting that while it would be improper for an expert witness to opine based on an interview with a victim as to whether the child had been sexually abused, statements regarding the child’s consistency in recounting the alleged abuse are nevertheless admissible. (3) The court rejected the defendant’s argument that witnesses’ repeated use of the words “disclose” and “disclosure” to describe what the victim told them in private amounted to impermissible vouching. Citing State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019), and declining to follow unpublished State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018) (unpublished), the court agreed that nothing about the term “disclose” conveys believability or credibility. (4) Some statements admitted by a marriage and family therapist who treated the victim were improper vouching. Her general statement about “this incident that happened” was not improper, but her statement that the victim would need therapy “because of the sexual abuse that she experienced” and “I believe [the victim]” were improper as an opinion of the victim’s veracity. However, in the absence of an objection at trial and in light of the substantial evidence against the defendant (medical evidence and testimony from corroborating witnesses), the court concluded that the admission of the improper evidence did not rise to the level of plain error warranting a new trial. (5) Finally, defense counsel’s failure to object to the improper vouching evidence was not ineffective assistance of counsel where there was no reasonable probability that the errors prejudiced the defendant.

The court reversed the opinion below, State v. Taylor, 238 N.C. App. 159 (Dec. 16, 2014), for the reasons stated in the dissenting opinion. Over a dissent, the court of appeals had held that the trial court committed plain error by permitting a Detective to testify that she moved forward with her investigation of obtaining property by false pretenses and breaking or entering offenses because she believed that the victim, Ms. Medina, “seemed to be telling me the truth.” The court of appeals held that the challenged testimony constituted an impermissible vouching for Ms. Medina’s credibility in a case in which the only contested issue was the relative credibility of Ms. Medina and the defendant. The dissenting judge did not believe that admission of the testimony in question met the threshold needed for plain error.

In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.

Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.

Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.

Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.

Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.

Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.

The defendant appealed from his convictions for first degree rape, first degree sexual offense, and taking indecent liberties with a child. The defendant also challenged a civil order requiring lifetime SBM. Defendant was charged with first degree rape of a child, first degree sex offense with a child, and taking indecent liberties with a child that allegedly occurred in 2007 or 2008. The victim told no one about what had happened to her until June 2017, when she was asked if she had ever been raped during the intake process for juvenile justice. The defendant was found guilty of all charges and sentenced to 240-297 months. Following release, the defendant would be required to register as a sex offender for life and to enroll in SBM for life.

(1) The defendant first argued that the trial court committed plain error by allowing that state’s expert witness, who conducted a forensic interview of the victim, to describe the victim’s claim that she was raped as a “disclosure,” and if this vouching for truthfulness had not occurred, then the victim would have been a less credible witness. The court of appeals first noted that the defendant did not object to the use of the word “disclosure” at trial and therefore his argument is reviewed for plain error.

The court explained that North Carolina case law makes it clear that experts cannot vouch for a child sexual abuse victim’s credibility when there is no evidence of physical abuse. The defendant argued the dictionary definition of disclose is “to make known (as information previously kept secret).” Slip op. at 4. The court acknowledged that the word may have that connotation at times, but its use must be considered in the specific context of the evidence in this case. After examining the testimony of the expert, the court determined that the use of the word “disclose” during the testimony “simply does not have the connotation of exposing a previously hidden truth as argued by [d]efendant.” Slip op. at 5. The court came to this conclusion because in this context the “use of the word ‘disclosure’ was simply as part of the description of the interview method and was not “vouching” for the truth of what an alleged victim reveals. Slip op. at 7.

(2) The court of appeals next noted that the defendant had waived his right to argue constitutional issues on appeal because no objection on constitutional grounds was made by defendant’s trial counsel and no notice of appeal was given from the SBM order. However, the court of appeals determined that because a substantial right of the defendant was affected, it was appropriate for the court to invoke Rule 2 to prevent a manifest injustice and thus review the constitutionality of the SBM order. Id. at 15.

The defendant argued that the trial court erred in ordering lifetime SBM because the state presented no evidence that lifetime SBM was a reasonable Fourth Amendment search of the defendant. The court reviewed the issue de novo and under the Grady III framework. The framework involves “reviewing Defendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring Defendant and the effectiveness of SBM in addressing those concerns.” Id. at 16. The court of appeals found that the state presented no evidence showing how the lifetime SBM would reduce recidivism and therefore, the state “failed to meet its burden of establishing that lifetime satellite-based monitoring following [d]efendant’s eventual release from prison is a reasonable search in [d]efendant’s case.” Slip op. at 19.

The defendant was convicted by a jury of seven sex crimes against a five-year-old victim, including statutory rape of a child by an adult, statutory sexual offense with a child by an adult, and indecent liberties with a child. At trial, the State presented a nurse practitioner who testified about the medical evaluation given to the victim. The nurse practitioner testified without objection that the victim gave “clear and concise statement[s] regarding child sexual abuse,” and that her own testimony was “based off a complete medical evaluation, not only [the victim’s] statements.” (1) On appeal, the defendant argued that the trial court committed plain error by impermissibly allowing the nurse practitioner to testify to the truth of the victim’s statements to the extent that she offered a conclusive diagnosis without physical evidence. The court rejected the argument, noting first that the witness never actually offered a conclusive diagnosis. To the contrary, she gave testimony relevant to helping the jury understand that a lack of physical evidence in a medical exam did not preclude sexual abuse. Moreover, any error related to the nurse practitioner’s detailed testimony about sexual abuse, including penetration, was deliberately elicited by the defendant on cross-examination. Regardless, the defendant did not demonstrate that the jury would have reached a different result in light of all the other unchallenged evidence. (2) The defendant also argued that the trial judge erred by excluding the testimony from two defense witnesses who allegedly asked the victim’s mother to stop talking about sex in front of children. The court of appeals disagreed, concluding that the proffered testimony—that the victim may have learned explicit language about sexual abuse from her mother and not from her personal experience with abuse—was too speculative and not within the witnesses’ personal knowledge. (3) Finally, the trial court did not err by failing to give a limiting instruction indicating that the nurse practitioner’s statistical testimony could be considered only for corroborative purposes. Reviewing the argument for plain error, the court concluded that the nurse practitioner’s testimony was proper, and that any error would not be prejudicial in any event in light of the collective evidence of guilt.

(1) In this indecent liberties with a child case, the court rejected the defendant’s argument that the trial court committed plain error by allowing the victim’s mother to vouch for the victim’s credibility. An individual informed the victim’s mother that the victim said that the defendant had touched her inappropriately. The victim was still asleep at the time this exchange took place. The victim’s mother testified as follows:

I knew that my daughter would tell me the truth because that’s what I had instilled in her. So I was debating on whether to wake her up. I didn’t want to traumatize her. I didn’t want to scare her. I knew that when she would come to me at that moment when I asked her that she would tell me the truth.

In sum, the court noted, the victim’s mother testified that she believed that her daughter was truthful in her accusations. Assuming arguendo admission of this testimony was improper, the defendant failed to show that the jury probably would have reached a different result absent the error.

(2) The court rejected the defendant’s argument that a detective’s testimony improperly vouched for the victim’s credibility. Here, the detective testified about his observation of the victim’s demeanor during his interview with her. The detective testified as follows:

Her responses seemed to be thoughtful. She paused several times while telling the story, just trying to recollect, and with each account she looked at the ground or looked downward several times, seemed to be genuinely affected by what had occurred.

The court rejected the notion that this testimony was the functional equivalent of vouching for the victim’s credibility, finding instead that it “contains precisely the type of ‘instantaneous conclusions’ that our Supreme Court considers to be admissible ‘shorthand statements of fact.’”

In this child abuse case, the expert witness’s testimony did not constitute improper vouching for the victim. At trial Holly Warner, a nurse practitioner, testified as an expert. Warner had evaluated the victim after he was placed in foster care. At trial she related what the victim told her about his injuries and what she observed during her evaluation of him before she gave her medical opinion. When she related the victim’s disclosure about how his injury occurred and who caused them, Warner was describing her process for gathering necessary information to make a medical diagnosis and was not commenting on the victim’s credibility. In neither her direct examination nor cross-examination did Warner state that the child was believable, credible or telling the truth.

The trial court did not err by denying the defendant’s motion to redact an officer’s statements in a transcript of an interview of the defendant in which the officer accused the defendant of telling a “lie” and giving an account of the events that was “bullshit” and like “the shit you see in the movies.” The defendant argued that these statements were inadmissible opinion evidence about the defendant’s credibility. The court noted that issue of the admissibility of an interrogator's statements during an interview that the suspect is being untruthful has not been decided by North Carolina's appellate courts. It concluded that because the officer’s statements were part of an interrogation technique designed to show the defendant that the detectives were aware of the holes and discrepancies in his story and were not made for the purpose of expressing an opinion as to the defendant's credibility or veracity at trial, the trial court properly admitted the evidence. The court went on to note that investigators’ comments reflecting on the suspect’s truthfulness are not, however, always admissible. It explained that an interrogator's comments that he or she believes the suspect is lying are admissible only to the extent that they provide context to a relevant answer by the suspect. Here, the officer’s statements that he believed the defendant to be lying were admissible because they provided context for the defendant’s inculpatory responses. For similar reasons the court rejected the defendant’s argument that admission of these statements violated Rule 403.

In a child sexual assault case, the court held that even assuming that the State’s medical expert’s testimony regarding “secondary gain” improperly vouched for the victim’s credibility, the error did not rise to the level of plain error.