State v. Treadway, 208 N.C. App. 286

Defendant James Patrick Treadway was convicted by jury of one count of first degree sexual offense involving Amber; two counts involving Amber were narrowed to digital penetration and cunnilingus, with cunnilingus counts dismissed for lack of evidence; Amber and Lucy were the alleged victims; Amber testified to digital penetration; trial court sentenced defendant to 260–321 months and lifetime SBM after finding a reportable conviction; on appeal, issues include evidentiary rulings, expert testimony, jury instructions, and SBM findings; the State’s evidence showed Amber’s disclosures and corroborating testimony; the trial court’s findings of fact and imposition of SBM are challenged and remanded accordingly; the court ultimately reverses in part and remands for correction of SBM-related clerical errors while affirming other aspects.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Hearsay evidence admitted against defendant	Treadway	Treadway	No plain error; proper corroboration and non-hearsay use recognized
Expert testimony diagnosing sexual abuse without physical evidence	State relied on Mumford's diagnosis to support abuse	Diagnosis improper without physical evidence	Diagnose mis-tated but not plain error; other corroboration admissible under Stancil
Jury instructions on proof of the specific sex act	Prosecutor proved digital penetration; jury should be instructed accordingly	Need explicit instruction that digital penetration proved	No error requiring instruction to prove the act stated in indictment; proper scope of evidence-based instructions
SBM findings and clerical error in order	Clerical error in box; defendant is sexually violent predator/recidivist	SBM should be imposed based on correct findings	Remanded for correction of clerical error and for consideration of SVP/recidivist status and risk assessment; not plain error
Whether first degree sexual offense under 14-27.4(a)(1) is an aggravated offense	Indictment supports aggravated status	Under Phillips, not aggravated offense; cannot extend SBM	Not an aggravated offense; remand for SBM consideration consistent with Phillips and Davison

State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002) (limits on expert testimony in child sexual abuse cases; allows testimony on characteristics)
State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987) (foundation for expert testimony in child sexual abuse cases)
State v. Grover, 142 N.C.App. 411, 543 S.E.2d 179 (2001) (appellate review of expert testimony foundations)
State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987) (allowing expert testimony on patterns without diagnosing abuse as fact)
State v. Chandler, 364 N.C. 313, 697 S.E.2d 327 (2010) (clarifies Stancil framework and need for physical evidence to support a diagnosis of abuse)
State v. Delsanto, 172 N.C.App. 42, 615 S.E.2d 870 (2005) (plain error in expert testimony diagnosing abuse without physical evidence)
State v. Ewell, 168 N.C.App. 98, 606 S.E.2d 914 (2005) (plain error in expert testimony about likelihood of abuse)
State v. Lark, 198 N.C.App. 82, 678 S.E.2d 693 (2009) (instructional scope of offenses under indictment)
State v. Phillips, N.C.App. , 691 S.E.2d 104 (2010) (holds aggravated status in certain offenses relies on elements; not all first degree offenses are aggravated)
State v. Davison, N.C.App. , 689 S.E.2d 510 (2009) (how to determine aggravated offense by conviction elements vs underlying facts)
State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1 (2010) (SBM constitutionality; ex post facto considerations)