Defendant John Earl Dew, Jr., appeals from judgments entered based upon his convictions of six counts of taking indecent liberties with a child stemming from conduct he allegedly engaged in with two sisters, V.M. and B.M.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
Becky, who was born in 1995, was sixteen years old at the time of trial. Her sister, Violet, was born in 1993 and was eighteen at the time of trial. Defendant, who was married to their mother’s sister and who lived with his wife and three children in Casar, was Becky and Violet’s uncle.
Defendant began molesting Becky and Violet around 2001 and continued to do so until 2006. The sexual abuse of which Defendant was accused usually occurred at family gatherings held at Defendant’s home; however, Defendant was also accused of abusing Becky and Violet at other times when he was alone with one or the other of them.
Becky testified that Defendant had sexually molested her about fifty times, beginning when she was five or six years old and continuing until she was twelve. The abuse that Becky described consisted of Defendant rubbing her vagina with his hands and forcing her to touch his penis. Defendant usually touched Becky during nighttime games of hide-and-seek, during which she would hide in Defendant’s yard away from the other children. Becky also recalled an incident that occurred during a family vacation to Hershey, Pennsylvania, when Defendant gave her a piggyback ride and tried to rub
Violet testified that Defendant began molesting her when she was six or seven years old. Like Becky, Violet recalled family gatherings held at Defendant’s house at which she and the other girls would play hide and seek. During these games, Defendant would put his hand inside Violet’s pants and move his finger back and forth on her vagina. According to Violet, Defendant touched her in this manner on ten to twenty different occasions. On one occasion, Defendant rubbed Violet’s vagina so much that she developed a rash there.
Violet recalled several other instances during which she was subjected to sexual abuse by Defendant as well. When she was six or seven years old, Defendant let her sit on his lap and drive his truck. As she drove, Defendant put his hand inside Violet’s pants and rubbed his finger against her vagina until they arrived at his house. Defendant also touched Violet while giving her a piggyback ride on two occasions, one of which occurred in Hershey and the other of which occurred at Defendant’s home. In addition, Violet recalled seeing a screensaver on Defendant’s computer depicting the silhouette of a female performing fellatio. Once, while Violet was alone with Defendant at his house, Defendant began tickling her. After grabbing her ankle and jerking her up so that she was looking up at his stomach and pelvic area, Defendant asked Violet to put her hand inside his pants. After Violet failed to make any response to this inquiry, Defendant took her hand and put it in his pants, at which point his breathing got heavy and he said that “it was okay.”
When she reached the fourth or fifth grade, Violet told Defendant to stop touching her, an instruction with which he complied. Several years later, Violet told a friend that Defendant had abused her when she was younger. About six months later, after watching a television program with her mother about victims of child molestation, Violet went to pick her sister up from basketball practice. After becoming very upset, Violet told her sister that Defendant had molested her as a child. In response, Becky told Violet that she had been abused by Defendant as well. Upon returning home, both girls told their mother, who reported the incidents to Detective Curry.
Carol Hollandsworth, a family therapist, provided counseling to both Violet and Becky. After describing Violet and Becky’s mental states, Ms. Hollandsworth testified that both children behaved in a manner that was consistent with symptoms exhibited by children who had been sexually abused.
2. Defendant’s Evidence
Defendant’s three children testified that the children in Defendant’s extended family only played hide-and-seek a few times and that Defendant rarely played hide-and-seek with them. During family gatherings, the adults, including Defendant, usually stayed together while the children played separately. None of Defendant’s children recalled seeing anything suspicious about the manner in which Defendant interacted with Becky and Violet or ever heard Violet and Becky claim to have been molested.
Defendant acknowledged having hosted family gatherings at his home and admitted that he had played hide-and-seek with the girls on one occasion when they were younger. In addition, Defendant admitted that he had given both Violet and Becky multiple piggyback rides. Although he had pornographic materials in his home, Defendant denied having ever shown such materials to Violet and Becky and repeatedly denied having ever molested either child.
B. Procedural History
On 12 January 2011, the Cleveland County grand jury returned bills of indictment charging Defendant with three counts of taking indecent liberties with a minor involving acts committed against Violet and three
II. Legal Analysis
A. Ms. M.’s Testimony
In his first challenge to the trial court’s judgments, Defendant contends that the trial court erred by allowing Angela M., the mother of Becky and Violet, to testify that she believed the victims. More specifically, Defendant challenges the admission of Ms. M.’s testimony that,
They said just — they—I don’t remember even which one of it was, but they said they had been messed with. And I said, what? They said, “We’ve been molested.” And I said, “By who?” And they said, “Uncle John.” And I just jumped up and down and screamed because I couldn’t, you know, it was hard to believe. And I said, “No he did-n’t, no he didn’t.” And I mean, not telling them that he really didn’t, but just — I couldn’t believe that he’d done it. But I believe my girls and I looked at them and I — and I just remember hugging them and I said, oh God. You know what this means? And I said, you know, I’ll do whatever I have to do to prosecute and they understood that.
According to Defendant, Ms. M.’s statement that “I believe my girls” was inadmissible.
As he candidly acknowledges in his brief, Defendant did not object to the admission of this testimony at trial. For that reason, we review this aspect of Defendant’s challenge to the trial court’s judgments for plain error. N.C. R. App. P. 10(a)(4); State v. Mendoza,
A lay witness is entitled to testify “in the form of opinions or inferences . . . [which are] (a) rationally based on [his] perception . . . and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701. When taken in context, Ms. M.’s statement that she believed her daughters was made in the course of a discussion of her emotional state at the time that Violet and Becky informed her that Defendant had sexually abused them. Assuming, without in any way deciding, that the admission of this portion of Ms. M.’s testimony was improper, Defendant has failed to show that, absent the error, the jury would have probably reached a different result. Simply put, in view of the relatively incidental nature of the challenged statement and the fact that most jurors are likely to assume that a mother will believe accusations of sexual abuse made by her own children, we cannot conclude that the challenged portion of Ms. M.’s testimony had any significant impact on the jury’s decision to convict Defendant. See State v. Ramey,
B. Detective Curry’s Testimony
Secondly, Defendant argues that Detective Curry impermissibly vouched for
As an initial matter, Defendant argues that Detective Curry testified that the children “actually remembered incidents, attesting as an expert that the incidents actually happened as they claimed.” Defendant bases this claim upon the following testimony, which the State elicited on direct examination:
Q. What were your impressions of [Becky], her manner and her demeanor when you met with her in November of 2010?
A. [Becky] appeared to be — to have more of a — she was matter of fact. She remembered less. She remembered incidents. She remembered very specific incidents but he didn’t — she did not remember times. And she was — and in looking and trying to get her to explain specific incidents, she would actually remember — it would appear that she would remember as we were talking if I said something that would [cue] her to her memory. Not a lead, but a [cue]. So, that she would actually think about when I. . . would say where were you, she would literally think and then say oh yeah, I remember this. That’s very common as well. But time, she still didn’t — like [Violet], had very limited concept of time because of the age of the incident.
Although Defendant correctly asserts that a witness may not vouch for the credibility of the alleged victim in a child sexual abuse case, State v. Stancil,
According to well-established North Carolina law, a witness is entitled to utilize “shorthand statements of facts” during the course of his or her testimony, State v. Eason,
Secondly, Defendant challenges Detective Curry’s assertion that Becky and Violet were “extremely credible.” The challenged testimony occurred on cross-examination, when Detective Curry testified that:
Q. Okay. Did you ever tell them that I — I believe you two and I think you are extremely credible?
A. Did I ever tell who that?
Q. [Violet] and/or [Becky]?
A. I’m sure I did.
Although the statement upon which Defendant predicates this aspect of his challenge to the trial court’s judgments clearly constitutes an affirmation of Becky and Violet’s credibility, “[a] defendant is not prejudiced by . . . error resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c). As a result, “a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.” State v. Barber,
C. Defendant’s Cooperation
Thirdly, Defendant contends that the trial court erred by refusing to allow the admission of evidence that he cooperated with Detective Curry. In support of this assertion, Defendant points to his cross-examination of Detective Curry, during which the trial court sustained the State’s objection when his trial counsel asked, “Now, I was — was Mr. Dew cooperative with you?” Defendant is not entitled to relief from the trial court’s judgments on the basis of this ruling.
“It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness’ testimony would have been had he been permitted to testify.” State v. Simpson,
Fourthly, Defendant argues that the trial court erred by admitting the testimony of Ms. Hollandsworth in two different respects. First, Defendant argues that the trial court erred by allowing Ms. Hollandsworth to testify as an expert in family counseling. Secondly, Defendant argues that the trial court erroneously allowed Ms. Hollandsworth to vouch for the credibility of Violet and Becky. We do not believe that either of these contentions has merit.
1. Ms. Hollandsworth’s Expert Qualification
In the course of challenging the trial court’s decision to allow Ms. Hollandsworth to present expert testimony, Defendant argues that Ms. Hollandsworth lacked the necessary credentials and failed to utilize an appropriate methodology. We disagree with both of Defendant’s assertions.
“[E]xpert testimony is properly admissible when such testimony can assist the jury to draw certain inferences from facts because the expert is better qualified.” State v. Bullard,
Ms. Hollandsworth clearly possessed the qualifications needed to present expert testimony. Among other things, Ms. Hollandsworth has earned a master’s degree in Christian counseling and has completed additional professional training relating to the trauma experienced by children who have been subjected to sexual abuse. Ms. Hollandsworth is engaged in private practice as a therapist and is a licensed family therapist and professional counselor. According to Ms. Hollandsworth, over half of her clients have been subjected to some sort of trauma, with a significant number of these patients having suffered sexual abuse. As a result, the trial court had ample justification for allowing Ms. Hollandsworth to testify as an expert witness. State v. Love,
Although Defendant challenges the admission of Ms. Hollandsworth’s testimony on reliability grounds, he has failed to demonstrate that the methods that she employed in the course of her work with Becky and Violet were unreliable. Instead, Defendant simply points to Ms. Hollandsworth’s testimony to the effect that there is no way to tell whether any particular individual has been sexually abused based solely upon what he or she says and that different people respond to the experience of having been sexually abused in different ways. However, the appellate courts in this jurisdiction have consistently allowed the admission of expert testimony, such as that provided by Ms. Hollandsworth, which relies upon personal observations and professional experience rather than upon quantitative analysis. See, e.g., State v. Kennedy,
2. Vouching for the Children’s Credibility
Secondly, Defendant argues that the trial court erred by allowing Ms. Hollandsworth to vouch for Becky and Violet’s credibility. Once again, we do not find Defendant’s argument persuasive.
On direct examination, the prosecutor asked Ms. Hollandsworth, “Is it common for children, especially younger children, who experience trauma of this nature to be unable or unwilling to tell a trusted family member even when they live in a loving home?” In response, Ms. Hollandsworth stated that:
What research says is 60% of cases like this do not even get reported. And in my experience with clients, this is young to be even talking about it actually. Most of my cases people were after college age into young adulthood before they even talked about it. And, again, it goes back to that sense of guilt and shame. And this is common in literature and in what I’ve seen in my cases. That feeling of being bad or as if they participated. What research says is that the—
At this point, the trial court sustained an objection lodged by Defendant’s trial counsel.
As we have already noted, a witness is not permitted to vouch for the credibility of the alleged victim in a child sexual abuse case. State v. Aguallo,
The cases in which this Court and the Supreme Court have reversed convictions based upon the principle upon which Defendant relies generally involve testimony that directly comments on the credibility of the alleged victim or sets out the witness’ subjective beliefs concerning the veracity of the alleged victim’s allegations. See, e.g., Aguallo,
E. Ineffective Assistance of Counsel
Finally, Defendant contends that, if this Court concludes that any of the claims discussed above have not been properly preserved for appellate review, he is entitled to
In analyzing ineffective assistance of counsel claims, we utilize a two-part test, under which the “[defendant must show (1) that ‘counsel’s performance was deficient,’ meaning it ‘fell below an objective standard of reasonableness,’ and (2) that ‘the deficient performance prejudiced the defense,’ meaning that ‘counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ”... In proving whether counsel’s actions resulted in prejudice to the defendant, he or she must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different[,]” with a “reasonable probability” being “a probability sufficient to undermine confidence in the outcome.”
State v. Womack,_N.C. App._,_,
After carefully reviewing the record, we conclude that Defendant is not entitled to relief on the basis of any of the ineffective assistance of counsel claims that he has asserted in his brief. Having upheld the admission of Detective Curry’s description of her meeting with Becky and the challenged portions of Ms. Hollandsworth’s testimony on the merits, we conclude that Defendant has failed to establish that there were any deficiencies in the representation which he received from his trial counsel with respect to this evidence. State v. Mewborn,
III. Conclusion
Thus, for the reasons set forth above, we conclude that none of Defendant’s challenges to the trial court’s judgments have merit. As a result, the trial court’s judgments should, and hereby do, remain undisturbed.
No Error.
Notes
. V.M. and B.M wUl be referred to as “Violet” and “Becky,” respectively, throughout the remainder of this opinion for ease of reading and to protect the children’s privacy.