228 N.C. App. 682
N.C. Ct. App.2013Background
- Defendant was convicted of first degree sexual offense with a child and taking indecent liberties; sentence 192–240 months, prior record level I.
- Moore, the child’s great-grandmother, employed as Debbie’s caregiver; Debbie was six at the time of the alleged offense.
- Defendant, a Terminix technician, visited Moore’s home in July 2010; Debbie was in Moore’s residence when the alleged acts occurred.
- Debbie reported the incident to Moore; Moore confronted defendant who denied wrongdoing.
- Forensic interview of Debbie occurred August 2011; Dr. Brown testified in rebuttal after defense motion in limine to exclude her; court admitted the testimony.
- Appellate court grants a new trial, holding the contested testimony prejudicial and error for speaking to Debbie’s credibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Brown’s rebuttal testimony about Debbie’s credibility was admissible | Frady | Frady | Not admissible; prejudicial error. |
| Whether the error required a new trial | State | Frady | New trial granted; prejudice shown. |
Key Cases Cited
- State v. Dixon, 150 N.C. App. 46 (NC Ct. App. 2002) (expert testimony not admissible to establish a victim’s credibility)
- State v. Bailey, 89 N.C. App. 212 (NC Ct. App. 1988) (expert testimony on child abuse generally permissible with foundation; not to vouch for credibility)
- State v. Oliver, 85 N.C. App. 1 (NC Ct. App. 1987) (expert testimony cannot declare the prosecuting child believable)