836 S.E.2d 880
N.C. Ct. App.2019Background
- Victim ("Virginia"), Defendant’s biological daughter, alleged that Defendant molested her starting at age 9 and again at 12; no contemporaneous witnesses or physical evidence supported the allegations.
- After Virginia disclosed the abuse, DSS and Help, Inc. arranged a forensic interview; a recorded interview and testimony were presented at trial.
- DSS Child Protective Services investigator Melissa McClary testified (without objection) that DSS "substantiated" sexual abuse and named Defendant as the perpetrator; a Help, Inc. forensic interviewer testified the allegations were a "delayed disclosure."
- Defendant testified and denied the allegations; his sister also testified she had been molested by Defendant as a child.
- A jury convicted Defendant of sexual offense with a child by an adult, child abuse by a sexual act, and taking indecent liberties; the trial court imposed consecutive active sentences.
- On appeal the Court of Appeals held McClary’s testimony that DSS had "substantiated" the abuse impermissibly vouched for the victim’s credibility, constituted plain error given the centrality of credibility to the State’s case, and reversed for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of DSS investigator testimony that DSS "substantiated" the abuse (vouching) | Testimony was part of investigative process/harmless; case turns on jury belief of victim | Testimony improperly vouched for victim’s credibility and bolstered State’s case; plain error; alternatively ineffective assistance for failing to object | Admission was plain error because it vouched for credibility and the victim’s credibility was central; conviction reversed and new trial ordered |
| Expert testimony characterizing victim’s report as a "delayed disclosure" | Permissible to explain disclosure patterns and why delays occur | Such testimony can improperly bolster credibility if it expresses belief that abuse occurred | Court did not rule decisively on admissibility of the delayed-disclosure testimony because DSS testimony error was dispositive |
| Whether error was plain (unpreserved) and prejudicial | Error harmless / not prejudicial | Admission of vouching testimony was prejudicial because State’s case depended on victim’s credibility | Court applied plain-error review and found prejudice because the prosecutor argued the case turned solely on whether the jury believed the victim |
| Ineffective assistance of counsel for failure to object | N/A | Failure to object to the challenged testimony deprived Defendant of effective assistance | Majority did not reach this claim after finding plain error; dissent would have rejected prejudice on plain-error review and thus would have rejected ineffective-assistance claim |
Key Cases Cited
- State v. Kim, 318 N.C. 614 (1986) (jury is sole judge of witness credibility)
- State v. Giddens, 199 N.C. App. 115 (2009) (DSS investigator testimony that defendant was ‘‘substantiated’’ as perpetrator improperly stated a State agency’s conclusion and vouched for credibility)
- State v. Chandler, 364 N.C. 313 (2010) (expert testimony that sexual abuse "has in fact occurred" is inadmissible absent physical evidence because it invades jury’s credibility determination)
- State v. Dixon, 150 N.C. App. 46 (2002) (expert opinion on a witness’s credibility is inadmissible and prejudicial when the case depends largely on the victim’s testimony)
- State v. Odom, 307 N.C. 655 (1983) (plain-error standard)
- State v. Davis, 191 N.C. App. 535 (2008) (expert vouching not plain error where case does not rest solely on child’s credibility)
- State v. Couser, 163 N.C. App. 727 (2004) (plain error where central issue is victim credibility)
- State v. Jordan, 333 N.C. 431 (1993) (defendant must show probable different result on plain-error review)