State v. MartinezÂ, 253 N.C. App. 574

Background

Defendant Jesus Martinez lived with his girlfriend (Mother), her three children (including eight-year-old "Chloe"), and their infant.
Mother found Chloe curled up in bed and observed the sheets "moving up and down," later prompting Chloe to disclose sexual acts by Defendant.
Chloe testified in detail about multiple incidents; Defendant testified the contact was innocent and both were clothed.
Defendant was convicted of eleven felonies: four counts of first-degree sexual offense with a child (parental role), two counts of sex offense with a child, and five other felonies; he appealed.
On initial appeal the Court of Appeals vacated six convictions for plain error in jury instructions and affirmed five; the North Carolina Supreme Court remanded for reconsideration in light of State v. Boyd.

Issues

Issue	State's Argument	Defendant's Argument	Held
Expert vouching (Dr. Morgan)	Expert did not opine definitively on abuse; testimony was hypothetical and consistent with medical exam showing no definitive signs.	Dr. Morgan impermissibly vouched for Chloe by suggesting abuse occurred; failure to object rendered counsel ineffective.	No reversible error: testimony read in context was hypothetical; defense counsel’s failure to object was not ineffective.
Prospective juror remarks	Juror’s comment about an uncle who "gets the bad guys off" was generic and did not show particular knowledge or imply guilt.	The remark amounted to prejudicial extrajudicial influence and denied impartial jury.	No plain error: trial court did not abuse broad discretion; comment was not shown to bias the jury.
Disjunctive jury instruction (analingus included)	Although instruction included analingus (no evidence), other evidence of fellatio and anal intercourse was overwhelming; under Boyd plain error requires showing probable impact.	Including an element/theory unsupported by evidence is plain error per Petersilie and related Supreme Court precedent; requires new trial.	No plain error under Boyd/Lawrence analysis: defendant failed to show the erroneous inclusion of analingus had a probable impact on the verdict.
Exclusion of impeachment evidence about Mother	Rulings excluding certain lines of cross-examination were not preserved (no offer of proof) except for prior domestic-violence accusation; that exclusion was harmless given other strong evidence.	Excluding evidence of Mother’s bias (other girlfriend, U-visa motive, refusal to lend money, prior domestic-violence accusation) deprived Defendant of impeachment material.	Mixed: three lines not preserved for review (no offer of proof). Exclusion of prior domestic-violence accusation was error but harmless given the total record; convictions stand.

Key Cases Cited

State v. Petersilie, 334 N.C. 169 (1993) (discussing when incorrect jury instructions on an element require a new trial)
State v. Boyd, 366 N.C. 548 (2013) (per curiam adopting dissent that applies plain-error/overwhelming-evidence analysis to disjunctive instructions)
State v. Lawrence, 365 N.C. 506 (2012) (clarifying plain-error standard: defendant must show error had a probable impact on jury verdict)
State v. Stancil, 355 N.C. 266 (2002) (expert testimony diagnosing abuse inadmissible when it impermissibly opines on victim credibility)
State v. Lynch, 327 N.C. 210 (1990) (discussing reversible error where jury instructed on alternative theories, one unsupported by evidence)