An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA13-1118
                         NORTH CAROLINA COURT OF APPEALS

                                   Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                       Union County
                                               No. 10CRS050358
KEVIN MICHAEL KING



      Appeal by defendant from judgment entered 17 April 2013 by

Judge W. David Lee in Union County Superior Court.                    Heard in the

Court of Appeals 19 February 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Anne M. Middleton, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender David W. Andrews, for defendant-appellant.


      HUNTER, Robert C., Judge.


      Kevin    Michael      King    (“defendant”)       appeals     from    judgment

sentencing him to 236 to 293 months imprisonment on two counts

of   first-degree     sex    offense    with     a   child   and    two    counts   of

taking indecent liberties with a minor.                   On appeal, defendant

argues     that:   (1)    the   trial    court       committed     plain   error    by

admitting video footage of a forensic interview with the alleged
                                         - 2-

victim; (2) the trial court committed plain error by admitting

testimony from the alleged victim’s therapist that constituted

an improper opinion on the alleged victim’s credibility; (3) the

trial court erred by denying his motion to dismiss the charges

of taking indecent liberties with a minor; and (4) the trial

court committed plain error by instructing the jury that it

could   convict     defendant     of    taking        indecent   liberties       with   a

minor based on theories not supported by the evidence.

    After careful review, we find no error in the sex offense

judgments, but we vacate the convictions for taking indecent

liberties     with     a    minor.          Accordingly,          we     remand     for

resentencing.

                                   Background

    The evidence presented at trial tended to establish the

following facts:       “Jessica”1, the alleged victim, was seven years

old at the time of the incident underlying this case and ten

years   old    at    the   time    of    trial.          Defendant      is   Jessica’s

biological     father.       Defendant          and    Jessica’s       mother,     “Jane

Reynolds”     (“Jane”),    lived       briefly    with      Jane’s     mother,     “Anne

Reynolds”     (“Ms.    Reynolds”),       until        the   relationship         between



1
  “Jessica” is a pseudonym used to protect the identity and
privacy of the juvenile. Pseudonyms will also be used to refer
to members of Jessica’s family.
                                         - 3-

defendant and Jane ended when Jessica was two months old.                             Ms.

Reynolds eventually became Jessica’s legal guardian.

       In January 2010, defendant’s mother                   (“Lindsay”)       arranged

with    Ms.   Reynolds      for   Jessica       to     visit       with   Lindsay     and

defendant at Lindsay’s home in Monroe, N.C.                    Originally, Jessica

was    to   spend   one   night   with     defendant         and    his     mother,   but

Jessica later called and asked Ms. Reynolds if she could spend

another night with them.          Ms. Reynolds testified at trial that a

few    days   after   her    visit   with       defendant,         Jessica    told    Ms.

Reynolds that she and defendant had a secret.

       Jessica was in grief counseling during this time because

her sister had died from leukemia in 2008.                     Before a regularly

scheduled     appointment     with      Kristen      McClure        (“Ms.    McClure”),

Jessica’s therapist, Ms. Reynolds called and left a message with

Ms. McClure to alert her that Jessica had a secret that she may

want to talk about in the upcoming counseling session.

       Ms. McClure testified that her conversation with Jessica in

the    counseling     session     was     focused       on     secrets.         Jessica

disclosed to Ms. McClure that defendant made her watch with him

what    she   described     as    “movies       with     naked      people”     on    the

computer.     Ms. McClure did not ask for more details, because she

thought it was apparent that there would be a Child Protective
                                               - 4-

Services     report,        and        she    did     not    want      to       disrupt    that

investigation.             At    the    end    of     the    counseling         session,     Ms.

McClure told Ms. Reynolds that Jessica said “she had definitely

been sexually abused.”                 The day after the counseling session,

Ms. Reynolds called Child Protective Services.

      On   20    January        2010,    Jessica       spoke    with    licensed          social

worker, Rebecca Horner (“Ms. Horner”), who conducted a forensic

interview.           During      the    interview,          Jessica    gave       Ms.     Horner

detailed descriptions of sexual acts that defendant allegedly

made her perform.               Ms. Horner’s report stated that Jessica’s

account of abuse was clear and detailed and that she validated

the alleged abuse through the use of anatomical dolls.

      After the forensic interview, detectives arrested defendant

and seized a computer from his mother’s house.                                  A grand jury

indicted defendant for two counts each of:                          (1) statutory rape,

(2)   statutory       sex       offense,      (3)     incest,    (4)    taking          indecent

liberties with a minor, and (5) displaying harmful material to a

minor.     The matter was tried before a jury on 15 April 2013.

      At   trial,      Jessica         testified      that    during        the    visit   with

defendant       at   his    mother’s         house,    she    watched       a     pornographic

video on a computer with defendant while sitting on his lap.

Jessica further testified that: (1) she rubbed defendant’s penis
                                   - 5-

and put her mouth on his penis; (2) he put his mouth on her

vagina; and (3) defendant kissed her “butt.”          Jessica said that

defendant told her if she told anyone about what happened, he

would not be able to see her for a long time.

      After Jessica testified, the trial court allowed the State

to show video footage of the forensic interview conducted by Ms.

Horner with no objection or request for limiting instruction.

The   video   showed   Jessica   telling   Ms.   Horner   that   defendant

showed her multiple pornographic videos, put his mouth on her

“butt and private,” and made her perform oral sex on him.              In

the video Jessica also said that defendant penetrated her vagina

with his penis at least two times and rubbed on her vagina with

his testicles and one of his fingers.

      Defendant testified at trial and denied the allegations.

The other individuals staying at Lindsay’s home that weekend

also testified that they did not see anything unusual about

defendant’s conduct toward Jessica, though they admittedly were

not present at all times.

      At the conclusion of the State’s evidence, defense counsel

made a motion to dismiss all charges.            As part of the motion,

counsel asserted that the taking indecent liberties with a minor

indictments were void for vagueness.        The trial court dismissed
                                          - 6-

the charges of statutory rape, incest, and displaying harmful

material to a minor.

    At the charge conference, the trial court stated that the

verdict sheet for taking indecent liberties with a minor would

be based on (1) analingus, and (2) “rubbing the alleged victim’s

vagina.”     At the conclusion of the defense’s evidence and during

the charge conference, defense counsel reinstated his motion to

dismiss.    The trial judge denied the motion.

    The jury convicted defendant of two counts of statutory sex

offense    and     two   counts    of    taking     indecent         liberties    with   a

minor.      On the verdict sheet for the two charges of taking

indecent liberties with a minor, the jury checked the line for

“Guilty     of   Indecent     Liberties          with    Child       (analingus)”       and

“Guilty     of   Indecent     Liberties          with    Child       (rubbing     alleged

victim’s vagina).”         The trial court consolidated the charges for

judgment     and     sentenced      defendant           to     236    to    293    months

imprisonment.        Defendant gave notice of appeal in open court

immediately following sentencing.

                                    Discussion

                              I.    Forensic Video

    Defendant        first   argues       that     the       trial    court     erred    by

admitting    the     video   of    the    forensic           interview     with   Jessica
                                           - 7-

because    her    statements        were    inflammatory,        far   exceeded     her

testimony at trial, and prejudiced the jury against defendant.

We disagree.

      At trial, defendant did not object to the admission of the

video.     Thus, the appropriate standard of review is plain error.

State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983).

Plain error arises when the error is “so basic, so prejudicial,

so   lacking     in   its       elements    that    justice      cannot   have     been

done[.]”     State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983) (citation and quotation marks omitted).

            For error to constitute plain error, a
            defendant    must    demonstrate    that    a
            fundamental error occurred at trial. To show
            that an error was fundamental, a defendant
            must establish prejudice - that, after
            examination of the entire record, the error
            had a probable impact on the jury’s finding
            that the defendant was guilty. Moreover,
            because plain error is to be          applied
            cautiously and only in the exceptional case,
            the error will often be one that seriously
            affect[s] the fairness, integrity or public
            reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal quotation marks omitted).

      “‘Hearsay’      is    a    statement,       other   than   one   made   by    the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.
                                            - 8-

Stat. § 8C–1, Rule 801(c) (2013). Generally, hearsay is not

admissible unless it is offered for a purpose other than proving

the truth of the matter asserted.                   State v. Irick, 291 N.C. 480,

498,    231   S.E.2d       833,    844    (1977).        However,      prior     consistent

statements       of   a     witness       are      admissible         for    corroborative

purposes.     State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277,

284    (1983).        Corroborative         testimony        may       contain      “new    or

additional     information         when    it      tends    to    strengthen        and    add

credibility to the testimony which it corroborates.”                                State v.

Ligon, 332 N.C. 224, 237, 420 S.E.2d 136, 143 (1992) (citations

omitted); see also State v. Beane, 146 N.C. App. 220, 232, 552

S.E.2d 193, 200 (2001) (corroborative evidence need not mirror

the    testimony      it   seeks    to    corroborate,           as   long     as   the    new

information      tends      to    strengthen        or     add    credibility        to    the

testimony).      However, “prior statements as to facts not referred

to in [the witness’s] trial testimony and not tending to add

weight or credibility to it are not admissible as corroborative

evidence.”       State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278,

280 (1997) (alteration in original).

       A trial court has “wide latitude in deciding when a prior

consistent       statement        can     be       admitted       for       corroborative,

nonhearsay purposes.”              State v. Call, 349 N.C. 382, 410, 508
                                           - 9-

S.E.2d 496, 513 (1998). The North Carolina Supreme Court has

held that a trial court’s limiting instruction that the jury may

only consider out-of-court statements for corroborative and not

substantive evidence can cure potentially erroneous admission of

inconsistent statements.            State v. Evans, 346 N.C. 221, 232-33,

485 S.E.2d 271, 277-78 (1997); see also State v. Early, 194 N.C.

App. 594, 600-01, 670 S.E.2d 594, 600 (2009) (holding that the

trial court did not abuse its discretion when the trial court

gave    limiting    instructions      on     a    prior   inconsistent       statement

because    the     statement    was      only      admitted   for       corroborative

purposes).

       Here,   defendant     argues      that      the    trial    court    erred   by

admitting video of the forensic interview with Jessica because

during the forensic interview Jessica described crimes she did

not testify to at trial, such as statutory rape.                             Thus, he

argues that because the prior out-of-court statements go “far

beyond” Jessica’s trial testimony, the video interview did not

add weight or credibility to the testimony, and the evidence of

other    crimes    alluded     to   in     the    interview       had   a   “dangerous

tendency” to prejudice the jury.                   State v. McClain, 240 N.C.

171, 177, 81 S.E.2d 364, 368 (1954).

       Although we agree that Jessica’s statements in the forensic
                                     -10-

interview did go beyond her testimony at trial, we find that any

error in admitting the video was cured by the trial court’s

limiting    instruction.     Here,    the     trial      court      gave      limiting

instructions on prior consistent statements and corroboration on

its own initiative when it admitted the forensic video and gave

a similar instruction in its jury charge.                     Specifically, the

trial court included the following in its jury charge:

            Evidence has also been received tending to
            show that at an earlier time a witness made
            a statement which may conflict or be
            consistent with the testimony of the witness
            at this trial. As I’ve previously instructed
            you, ladies and gentlemen, you must not
            consider such earlier statement as evidence
            of the truth of what was said at that
            earlier time because it was not made under
            oath at this trial.      If you believe the
            earlier statement was made, and that it
            conflicts    or  is   consistent  with   the
            testimony of the witness at this trial, you
            may consider this, and all other facts and
            circumstances bearing upon the witness’s
            truthfulness, in deciding whether you will
            believe    or   disbelieve   the   witness’s
            testimony.

Furthermore, although there were parts of the video that did go

beyond   Jessica’s   testimony,    there      was   also      a    great      deal    of

consistency    sufficient    for   the      jury    to   be       able   to     assess

Jessica’s credibility.       Thus, the trial court did not err by

admitting   the   forensic   video    for     corroborative          purposes        and

instructing the jury as to the only permissible use of this
                                    -11-

evidence.     See Early, 194 N.C. App. at 601, 670 S.E.2d at 600.

Because there was no error, there could not have been plain

error.     See State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465,

468 (1986) (holding that without error at all, there cannot be

plain error).     Defendant’s argument is overruled.

                             II. Expert Testimony

    Next, defendant argues that the trial court committed plain

error    by   allowing   improper   opinion   testimony   by   an   expert

witness, Ms. McClure, that Jessica had “definitely been sexually

abused.”      Defendant also argues that Ms. McClure’s testimony

that she treated Jessica for issues that victims face after

suffering sexual abuse was an improperly admitted opinion.              We

disagree.

    Because defendant did not object to the admission of this

testimony at trial, we review this issue on appeal for plain

error.    See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.

    In a sexual offense prosecution involving a child victim,

the trial court should not admit expert opinion that sexual

abuse has in fact occurred because, absent physical evidence

supporting a diagnosis of sexual abuse, such testimony is an

impermissible opinion regarding the victim’s credibility. State

v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Grover,
                                     -12-

142 N.C. App. 411, 543 S.E.2d 179, aff’d per curiam, 354 N.C.

354, 553 S.E.2d 679 (2001).             “However, an expert witness may

testify,    upon   a   proper    foundation,      as    to    the   profiles     of

sexually abused children and whether a particular complainant

has symptoms or characteristics consistent therewith.”                    State v.

Stancil,    355    N.C.   266,   267,    559   S.E.2d        788,   789    (2002).

Admission of expert testimony that the victim has been sexually

abused without proper foundation constitutes plain error.                      State

v. Delsanto, 172 N.C. App. 42, 47-48, 615 S.E.2d 870, 873-74

(2005).

    There are two statements at issue here.                   The first is Ms.

Reynolds’s testimony that Ms. McClure told her that Jessica had

“definitely been sexually abused.”

    Defendant argues that this was an improper expert opinion

about     Jessica’s    credibility      because    it    was    based     on     Ms.

McClure’s discussion with Jessica and not on physical evidence

of abuse.     See Stancil, 355 N.C. at 267, 559 S.E.2d at 789.                   We

disagree.      After reviewing the transcript, we find that Ms.

McClure never expressed an opinion about Jessica’s credibility

or whether she had been sexually abused.                Rather, the statement

defendant argues amounts to an impermissible opinion was in fact

included in Ms. Reynolds’s testimony.             In context, Ms. Reynolds
                                      -13-

was merely relating the fact that Ms. McClure told her that

Jessica had disclosed that she had been sexually abused.                           Ms.

Reynolds’s testimony was as follows:

               Q. And what happened next?

               A. Towards the end, she said that she had
               definitely been sexually abused.

               Q. When you say she, do you –

               A. I’m sorry; [Ms. McClure] brought me into
               the office and said that Jessica had told
               had told [sic.] her that she was -- that--
               that her daddy had engaged in oral sex and
               that she felt like we needed to proceed,
               that I had -- that I was compelled-- I don’t
               know what the word would be, to call Child
               Protective Services, that if I didn’t call
               that she had to call.

    Ms. McClure never testified that she stated to Ms. Reynolds

or anyone else that Jessica had been sexually abused.                      Further,

Ms. McClure neither formulated nor conveyed any opinion that

Jessica   had     been   sexually   abused.       When   the    State      tried   to

elicit    an    actual   opinion    from   Ms.    McClure,     the   trial    court

sustained      defendant’s   objection.          Thus,   because     Ms.    McClure

never gave an expert opinion on Jessica’s credibility or whether

she had been sexually abused, defendant’s argument is overruled.

    The second statement at issue is Ms. McClure’s testimony

that in subsequent therapy sessions with Jessica, Ms. McClure

treated her for issues from which sexual abuse victims might
                                        -14-

suffer.

       Defendant relies on State v. Hall, 330 N.C. 808, 822-23,

412 S.E.2d 883, 891 (1992), where the North Carolina Supreme

Court granted a new trial to the defendant because the trial

court    improperly    admitted       expert    testimony    that    the   alleged

victim of sexual abuse was diagnosed as having post-traumatic

stress     disorder    and    a      conversion     reaction    as     substantive

evidence of guilt.          The case at hand is distinguishable because

Ms. McClure’s testimony about working with Jessica on issues

that sexual abuse victims may face was not an opinion that the

victim had, in fact, been abused.                 Ms. McClure testified that

she never probed into the details of what occurred with Jessica

and     defendant   after     Jessica’s        initial    disclosure    that     she

watched       pornographic    videos     with     defendant.         Rather,     she

proceeded with treatment designed for children who have alleged

sexual abuse.       Thus, contrary to the expert witnesses in Hall,

Ms. McClure never formed an opinion as to whether abuse had in

fact    occurred,     and    thus,    the   trial    court     did   not   err    by

admitting her testimony.

       Since defendant failed to establish that the trial court

erred    by    admitting    these    statements,     we   conclude     that    there

cannot be plain error.         See Torain, 316 N.C. at 116, 340 S.E.2d
                                           -15-

at 468.

                             III.    Motion to Dismiss

    Defendant also argues that the trial court erred when it

denied    defendant’s    motion       to    dismiss       the    charges       for   taking

indecent liberties with a minor.                        Defendant claims that the

State did not produce substantial evidence that defendant rubbed

Jessica’s    vagina    or     engaged      in     analingus      –    the   two      factual

theories    upon    which     the    jury       convicted       defendant      for    these

charges.     We agree.

    The     first   matter      we    must        address   is       whether    defendant

waived this issue on appeal.                The State argues that defendant

waived review of this issue because he presented a different

argument at trial        supporting the motion to dismiss                         than the

argument he now presents on appeal.                  It is well-settled in North

Carolina that where a theory argued on appeal was not raised

before the trial court, “the law does not permit parties to swap

horses between courts in order to get a better mount.”                            State v.

Augustine,    359     N.C.    709,    721,        616    S.E.2d      515,    525     (2005)

(citations omitted).           At trial, defendant’s motion to dismiss

was based upon lack of evidence for the rape and incest charges.

As to the indecent liberties charges, defense counsel objected

only on the basis that the indictments were vague.                          At the close
                                     -16-

of   all   evidence,     defense   counsel    reinstated     his    motion   to

dismiss all charges but did not specifically assert that the

motion was tied to lack of evidence for the indecent liberties

charges.

      We   hold   that   defendant   did    not   preserve   this    issue   on

appeal because he did not state the specific grounds for the

motion to dismiss which he now argues on appeal.                   See N.C. R.

App. P. 10(a)(1) (2013); Augustine, 359 N.C. at 721, 616 S.E.2d

at 525.     However, defendant requests that we invoke Rule 2 of

the North Carolina Rules of Appellate Procedure to reach the

merits of this issue.       See N.C. R. App. P. 2 (2013).           This Court

has previously utilized Rule 2 to reach the merits of issues

concerning sufficiency of the evidence and motions to dismiss

where theories used to support the motions at the trial level

differed from those raised on appeal.              See State v. Martinez,

___ N.C. App. ___, ___, 749 S.E.2d 512, 514 (2013) (invoking

Rule 2 to review the merits of denial of a motion to dismiss on

appeal despite defendant relying on a different argument for

dismissal at trial).        Thus, in accordance with caselaw and to

prevent manifest injustice, we invoke Rule 2 to reach the merits

of defendant’s argument here.

      The trial court’s ruling on a motion to dismiss is reviewed
                                       -17-

de novo on appeal.         State v. Bagley, 183 N.C. App. 514, 523, 644

S.E.2d 615, 621 (2007).            Under the de novo standard of review,

this Court considers the matter anew and freely substitutes its

own judgment for the lower court’s.                   Sutton v. N.C. Dep’t of

Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999).                         When

a trial court rules on a motion to dismiss, it must determine

whether     the    State     presented      substantial       evidence      of     each

essential element of that offense.              State v. Davis, 74 N.C. App.

208, 212, 328 S.E.2d 11, 14 (1985).                    Substantial evidence is

that    which     “a    reasonable   mind     might    accept      as   adequate    to

support a conclusion.”          State v. Barden, 356 N.C. 316, 351, 572

S.E.2d    108,    131    (2002).     The    trial     court      must   consider    the

evidence in the light most favorable to the State and give the

State    any    reasonable    inference     that      can   be    drawn   therefrom.

State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).

       A person is guilty of taking indecent liberties with                           a

minor, if

               [B]eing 16 years of age or more and at least
               5 years older than the child in question, he
               either: (1) willfully takes or attempts to
               take any immoral, improper, or indecent
               liberties with any child of either sex under
               the age of 16 years for the purposes of
               arousing or gratifying sexual desire; or (2)
               willfully commits or attempts to commit any
               lewd or lascivious act upon or with the body
               or any part or member of the body of any
                                         -18-

             child of      either     sex    under    the   age   of    16
             years.

N.C. Gen. Stat. § 14-202.1 (2013).

       This case is comparable to State v. Mueller, 184 N.C. App.

553,   647   S.E.2d      440   (2007).        In   Mueller,   the      defendant    was

indicted for thirty-three felonies and three misdemeanors based

on alleged sexual misconduct with his biological daughter and

his stepdaughter.         Id. at 556, 647 S.E.2d at 444.                 Five of the

indictments were for the crime of taking indecent liberties with

a   minor;    to    support     one     of    these    charges,       the    jury   was

instructed, and the verdict sheet listed, the specific act of

the defendant asking the alleged victim to perform oral sex on

him.    Id. at 557, n.1, 647 S.E.2d at 445.                   The jury found him

guilty for one count of taking indecent liberties with a minor

based on this factual theory.                Id.   On appeal, defendant argued

that the trial court erred by denying his motion to dismiss this

charge because the State did not produce substantial evidence

that the defendant in fact asked the alleged victim to perform

oral sex.        Id. at 560, 647 S.E.2d at 446.                The Court agreed;

even    though     the    victim      testified      “at    length”     as   to     acts

supporting other charges, such as defendant placing his penis

between the victim’s thighs and ejaculating on her, the State

failed to produce substantial evidence that he asked her to
                                               -19-

perform      oral    sex.         Id.    at    561,    563,      647   S.E.2d      at     447-48.

Because the trial court specified this act in its instruction

and the jury identified this fact as supporting the conviction

in    its    verdict       sheet,        the     State     was    required         to    produce

substantial evidence of this act to survive a motion to dismiss.

Id.    Thus, because it failed to do so, this Court reversed the

conviction and dismissed the charge.

        Here, like in Mueller, the trial court specified facts

supporting the charges of taking indecent liberties with a minor

in its jury instructions, and those facts were included on the

verdict sheets.           Thus, pursuant to Mueller, in order to overcome

defendant’s motion to dismiss, the State was required to produce

substantial evidence of the two factual theories upon which the

charges of taking indecent liberties with a minor were premised

–     that    defendant           rubbed       Jessica’s         vagina      and        performed

analingus.

       First,       the   State         argues      that    it     produced        substantial

evidence      that    defendant         performed        analingus      on    Jessica.        We

disagree.       Analingus is defined as “the stimulation of the anal

opening by the tongue or lips.”                       State v. White, 101 N.C. App.

593, 606, 401 S.E.2d 106, 113 (1991).                            Jessica testified that

defendant      “put[]       his    mouth       on   [her]     butt”    and    “kissed”        her
                                          -20-

“butt.”      The State argues that, viewing the evidence in the

light most favorable to the State, this testimony constituted

substantial evidence that defendant performed analingus and was

corroborated by the video interview wherein Jessica told Ms.

Horner    that     defendant       “started      kissing     [her   privates]      even

inside”    and     “then   he     did   my    butt.”        However,    the    forensic

interview was admitted only to corroborate Jessica’s in-court

testimony and was not to be considered as substantive evidence.

Without more, we cannot conclude that Jessica’s testimony that

defendant “kissed” her “butt” amounted to substantial evidence

that “a reasonable mind might accept as adequate to support

[the]     conclusion”      that     defendant        stimulated     Jessica’s      anal

opening with his tongue or lips.                  Thus, we vacate defendant’s

conviction for taking indecent liberties with a minor premised

on analingus.           See State v. Hunt, __ N.C. App. __, __, 728

S.E.2d 409, 415 (2012) (vacating a conviction for crime against

nature     where       evidence     was      insufficient      to      withstand       the

defendant’s motion to dismiss).

    Next,        the     State     argues     that     it    produced     substantial

evidence    that       defendant    rubbed     Jessica’s      vagina.         Again,    we

disagree.        Jessica testified that defendant kissed and rubbed

her butt, put his mouth on her private part and butt, made
                                             -21-

Jessica rub his penis, and put his penis in her mouth.                              The only

evidence supporting the theory that defendant rubbed Jessica’s

vagina    is     in    the    forensic       video,     where       Jessica       said    that

defendant      rubbed       her     vagina    with   his        finger    and    rubbed     his

testicles on her “private.”                  Because the video was admitted for

corroborative         and    not     substantive       purposes,          and    because    no

substantive evidence was admitted tending to show that defendant

rubbed    Jessica’s         vagina,     we    hold    that       the     State    failed    to

produce substantial evidence to support this theory.                                Thus, we

vacate defendant’s conviction for taking indecent liberties with

a minor premised on rubbing Jessica’s vagina.                            See Hunt, __ N.C.

App. at __, 728 S.E.2d at 415.

    Although it is clear that the State produced substantial

evidence    of    acts       that    would    support       a    conviction       of     taking

indecent liberties with a minor generally, we are constrained by

Mueller to analyze defendant’s motion to dismiss in light of the

specific instructions provided by the trial court and the facts

specified in the verdict sheets.                     Because the State failed to

produce    substantial         evidence       of    those       facts,    we     must    vacate

defendant’s      convictions          for    these   charges.            Further,       because

these convictions were consolidated with two counts of statutory

sex offense for sentencing, we remand this matter to the trial
                                               -22-

court for resentencing.                   See State v. Wortham, 318 N.C. 669,

674,    351       S.E.2d    294,    297      (1987)    (remanding    for    resentencing

where       one    or   more     but    not    all    convictions    consolidated       for

judgment had been vacated on appeal).

                                       IV. Jury Instructions

       Defendant’s          final       argument       is   that    the    trial      court

committed plain error when it instructed the jurors that they

could    convict        defendant       of    taking    indecent    liberties      with   a

minor    based       on    the    theories      that    defendant    rubbed     Jessica’s

vagina and performed analingus because they were not supported

by the evidence.                 Because we vacate the two convictions for

taking indecent liberties with a minor, we need not address this

issue on appeal.

                                          Conclusion

       We hold that the trial court did not err by admitting video

footage of the forensic interview into evidence because it was

admitted only for corroborative purposes and the trial court

gave    a    proper       limiting      instruction.        Furthermore,        the   trial

court did not err by admitting Ms. McClure’s or Ms. Reynolds’s

testimony         because      neither        statements    rose    to    the   level     of

improper expert opinion.                Finally, we vacate the convictions for

two counts of taking indecent liberties with a minor because the
                                  -23-

State   failed   to   produce   substantial   evidence   of   the   facts

supporting those charges, and we remand for resentencing.



    NO ERROR IN PART; VACATED AND REMANDED IN PART.

    Judges GEER and McCULLOUGH concur.

    Report per Rule 30(e).
