An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1044
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

       v.                                     Burke County
                                              No. 11 CRS 2390
RUSSELL SCOTT BUCK,
          Defendant.


       Appeal by defendant from judgment entered 13 February 2013

by Judge Robert C. Ervin in Burke County Superior Court.                      Heard

in the Court of Appeals 19 February 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Elizabeth J. Weese, for the State.

       Michael E. Casterline for defendant-appellant.


       GEER, Judge.


       Defendant Russell Scott Buck was tried for 16 offenses and

found guilty of one count of first degree sexual offense under

N.C.    Gen.    Stat.    §   14-27.4     (2013).       On    appeal,    defendant

primarily      argues   that   the   trial    court    erred    in   denying    his

motion to dismiss when the State failed to present evidence that

defendant committed a sex offense on any particular date or in

any particular place.           Because North Carolina courts have not
                                              -2-
required evidence of a specific incident to convict a defendant

of first degree sex offense with a child and because the record

contains sufficient evidence to support defendant's conviction,

we    hold    that    the    trial     court    properly       denied    the    motion   to

dismiss.

                                           Facts

       The acts that were the basis for the indictments in this

case       occurred   while        defendant    was    living     with   his    daughter,

"Cheyenne," and two sons, "Mark" and "Ricky," in a single-wide

trailer in a Morganton trailer park.1                       Cheyenne, Mark, and Ricky

are defendant's only children.                 Defendant had primary custody of

the    children,      with        their   mother,      Rachel,     having       visitation

rights every other weekend.

       Allegations          that     defendant        was     abusing     his    daughter

surfaced after Mark had an argument with defendant on 3 August

2011.        That evening, Mark rode his bike "across the county to

his mother's house."               After Mark told his mother that defendant

had beaten him, she took Mark to the Burke County Sheriff's

Office.        There,       Mark    reported    that        defendant    had    physically

abused       him   and      his     brother    and     sexually     abused      Cheyenne.

Following an investigation by the Sheriff's Office that involved

       1
      Pursuant to N.C.R. App. P. 3.1(b), we refer to the alleged
victim and her siblings by pseudonyms to protect the minors'
privacy and for ease of reading.
                                           -3-
interviews      with    defendant,      Rachel,       the   children,      and    others,

defendant was indicted for 10 counts of first degree statutory

sex     offense    and    six     counts       of    statutory        rape,     allegedly

committed against Cheyenne from 2002 to 2011.

      At trial, the jury found defendant guilty of one count of

first degree sexual offense with a child under 13 years of age

occurring in 2007 and not guilty of the remaining charges.                              The

trial court sentenced defendant to a presumptive-range term of

216 to 269 months imprisonment.                     Defendant timely appealed to

this Court.

                                           I

      Defendant        first   contends     that      the   trial     court     erred   in

denying his motion to dismiss the charge of first degree sexual

offense       occurring   in    2007.       Defendant         notes    that     "Cheyenne

referenced the year 2007 only once" when she testified that

defendant would give her extra money and other things "whenever

I'd give him sexual favors," which Cheyenne stated happened in

"2010, 2009, 2008, 2007."               Defendant argues that because the

State failed to establish that "sexual favors" is synonymous

with the definition of "sexual act," set forth in N.C. Gen.

Stat.     §    14-27.1(4)       (2013),     the       State    failed      to    present

sufficient      evidence       that   defendant       committed       a   "sexual   act"

against Cheyenne in 2007.
                                           -4-
       When    ruling    on     a   motion        to    dismiss       for     insufficient

evidence,      "the     trial       court's       inquiry        is    limited      to    a

determination of 'whether there is substantial evidence of each

essential element of the offense charged and of the defendant

being the perpetrator of the offense.'"                         State v. Butler, 356

N.C. 141, 145, 567 S.E.2d 137, 139 (2002) (quoting State v.

Crawford,      344    N.C.    65,    73,     472       S.E.2d     920,      925   (1996)).

"'Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'"                             State

v. Outlaw, 159 N.C. App. 423, 426, 583 S.E.2d 625, 627 (2003)

(quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587

(1984)).       "'In     reviewing      challenges         to     the     sufficiency     of

evidence, we must view the evidence in the light most favorable

to the State, giving the State the benefit of all reasonable

inferences.'" State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866,

869 (2002) (quoting State v. Fritsch, 351 N.C. 373, 378-79, 526

S.E.2d 451, 455 (2000)).

       First degree sexual offense may be established by a showing

of (1) a "sexual act," (2) with a victim who is under 13 years

of age, (3) a defendant who is at least 12 years old, and (4)

who is also at least four years older than the victim.                            See N.C.

Gen.   Stat.    §    14-27.4(a)(1).           A    "sexual      act"     is    defined   as
                                           -5-
fellatio, cunnilingus, analingus, or anal intercourse, but it

excludes vaginal intercourse.              N.C. Gen. Stat. § 14-27.1(4).

       Defendant does not dispute that evidence exists regarding

each of these elements, but rather contends that the evidence is

insufficient that a sexual act occurred in 2007, the sole count

on which the jury convicted defendant.                 Mark, however, testified

that he saw Cheyenne performing oral sex on defendant "like --

six    years"    from    "this    year,"     which     was    2013.      From     this

testimony, the jury could have found that an act of fellatio had

occurred in 2007.             Defendant's arguments that Mark's response

was "confused" and "imprecise and vague" go to the credibility

and weight to be given the testimony, questions solely within

the purview of the jury.

       Moreover, although Cheyenne testified generally that she

gave defendant "sexual favors" in 2007, she explained in other

testimony       what    she   meant   by    sexual     favors.        According    to

Cheyenne, she performed fellatio on defendant beginning in 2002,

when she was six years old and that defendant began performing

cunnilingus on her when she was about 10 years old, which would

have been in 2005.             She testified that the last time she had

"sexual contact" with defendant was "a couple days before I was

taken away from him" and that "all of this stuff" -- which a

jury    could     find    included    the        fellatio    and   cunnilingus     --
                                           -6-
continued until Cheyenne was removed from defendant's home in

2011.      Notably,       Cheyenne       never   testified     that    she    stopped

performing fellatio on defendant or that defendant ever ceased

performing cunnilingus on her.

       When Mark's and Cheyenne's testimony is viewed in the light

most    favorable    to    the    State,    with    all   reasonable        inferences

drawn in its favor, this testimony is sufficient to support a

reasonable juror's conclusion that defendant, in 2007, performed

a sexual act on Cheyenne within the meaning of N.C. Gen. Stat. §

14-27.1(4).        While defendant argues that Mark's and Cheyenne's

testimony did not provide "evidence of any specific sexual act

occurring     in    any    particular       place    at   a    particular       time,"

defendant     does        not     cite     any     authority        requiring     such

specificity.       Indeed, this Court has acknowledged "the realities

of a continuous course of repeated sexual abuse" as a result of

which "each succeeding act, no matter how vile and perverted,

becomes more routine, with the latter acts blurring together and

eventually     becoming          indistinguishable.            It     thus     becomes

difficult if not impossible to present specific evidence of each

event."     State v. Bullock, 178 N.C. App. 460, 473, 631 S.E.2d

868, 877 (2006).

       We hold that the State's evidence was sufficient to defeat

defendant's    motion       to    dismiss    the    charge     that    in    2007,   he
                                      -7-
committed first degree sex offense with a child under the age of

13.   See State v. Khouri, 214 N.C. App. 389, 397, 716 S.E.2d 1,

7 (2011) (holding that State presented sufficient evidence of

statutory sexual offense with person who is 13, 14, or 15 years

of age when victim testified that sexual touching and oral sex

occurred regularly beginning when she was 11 or 12 and victim

did not testify that acts stopped when defendant began to engage

in vaginal intercourse with her at age 14, and "the jury could

reasonably infer that the sexual acts that began at the ages of

eleven or twelve continued on occasion after the instances of

vaginal intercourse began"), disc. review denied, 365 N.C. 546,

742   S.E.2d   176   (2012).         The    trial   court,     in   this    case,

therefore, properly denied defendant's motion to dismiss.

                                       II

      Defendant next argues that the trial court committed plain

error when it allowed Elizabeth Browning, who worked at South

Mountain   Children        and   Family      Services,    to    testify     that

Cheyenne's lack      of any physical signs or symptoms               of sexual

abuse was consistent with her claims of having been repeatedly

sexually   abused     or    raped.          Defendant    contends    that    Ms.

Browning's testimony improperly bolstered Cheyenne's testimony

because Ms. Browning found no physical evidence that Cheyenne
                                           -8-
was    abused    and    because       "[t]he   State's       case      depended        on   the

relative credibility of Cheyenne and her father."

       Because     defendant      did    not   object        to   this      testimony,      we

review it for plain error.              Our Supreme Court has explained:

             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, . . . plain error is to be applied
             cautiously and only in the exceptional
             case[.]

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

(internal citations and quotation marks omitted).

       It   is   well        established       that      "[i]n     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. Stancil, 355 N.C.

266,     266-67,       559     S.E.2d     788,        789    (2002)         (per   curiam).

Nevertheless,        "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."            Id. at 267, 559 S.E.2d at 789.                         "'The
                                       -9-
fact that [such] evidence may support the credibility of the

victim does not alone render it inadmissible.'"             State v. Dixon,

150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (quoting State v.

Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)), aff'd per

curiam, 356 N.C. 428, 571 S.E.2d 584 (2002).

    We note that, without objection, the State tendered Ms.

Browning as an expert witness in the field of sexual assault

nurse examinations ("SANE").           Ms. Browning testified that she

had examined Cheyenne on 16 August 2011 and that she appeared

"normal,"    meaning    that   Cheyenne      did   not   have   any   physical

symptoms    of   anal   or   vaginal    penetration.        The   State   then

elicited the following testimony from Ms. Browning on direct

examination:

                 Q    Ms. Browning, do you know what
            sexual abuse [Cheyenne] disclosed to the
            Sheriff's department after you performed
            [her] exam?

                 A    It's my understanding that she did
            disclose penetration.

                 Q      And was that on one occasion or on
            multiple    occasions over a long period of
            time?

                 A    To my knowledge, it was multiple
            encounters.

                 Q    Now, knowing that and looking back
            at your examination, are the findings in
            your   examination   consistent  with   that
            history of sexual abuse over a long period
            of time?
                                        -10-


                    A      Yes, it is.

                  Q    And explain to the jury how that
             would be.

                  A    Well again, things heal. If there
             was an injury –– there may not have been an
             injury.   We just talked about what happens
             to the hymen when estrogen takes hold.   It
             gets thick, it gets elastic, it stretches.
             We wouldn't know. It's consistent with what
             she said.

      Immediately         following     this      exchange,    defense        counsel

elicited the following testimony from Ms. Browning on cross-

examination:

                  Q    Your           examination   is               also
             consistent with         no abuse occurring,            isn't
             it?

                    A      Yes.

                  Q   Okay.   There's really no way to
             tell. Is that a fair statement?

                    A      Yes.

Ms. Browning then explained that she had performed over 1,000

physical     SANE       examinations.       She    testified        that    only    "10

percent" of children who are sexually abused show physical signs

and that this was based on a review of the academic literature.

      Ms.    Browning's         testimony   amounted    to     an     opinion       that

Cheyenne's having a history of sexual abuse should not be ruled

out   just   because       of    Cheyenne's    SANE    examination          since   the

profile or typical characteristics of a sexually abused child do
                                             -11-
not    necessarily       include       physical        findings.           Although       Ms.

Browning       testified       that    "the      findings     in    [her]     examination

[were]     consistent      with       that       history"     of    penetration          which

Cheyenne       had    disclosed       to    authorities,       the    context       of    her

testimony makes it clear that the reference was to an alleged

history.

       Further, the defense elicited testimony from Ms. Browning

on cross-examination that her findings were also consistent with

Cheyenne not having been abused.                    At no point did Ms. Browning

express    an    opinion       that    Cheyenne        was   the     victim    of    abuse.

Rather,    Ms.       Browning     gave      an    opinion     whether      Cheyenne       had

"symptoms or characteristics consistent therewith" as permitted

by Stancil, 355 N.C. at 267, 559 S.E.2d at 789.                                The trial

court, therefore, did not commit plain error in admitting Ms.

Browning's testimony.            See also In re T.R.B., 157 N.C. App. 609,

618,     582    S.E.2d     279,       286     (2003)     (upholding        admission       of

testimony of alleged victim's examining doctor that the lack of

physical findings was "'consistent'" with claims of sexual abuse

because doctor "did not testify that the allegations in the

juvenile petition were accurate, but only that her examination

of    [alleged       victim]    was    'consistent'          with    her    interview      of

him").
                                         -12-
       Defendant, however, relies on State v. Frady, ___ N.C. App.

___, 747 S.E.2d 164, disc. review denied, ___ N.C. ___, 752

S.E.2d 465 (2013).             In Frady, a medical expert, who did not

personally     examine       the    alleged        victim,     testified       that     her

"'disclosure [is] consistent with sexual abuse'" based solely on

"'the   consistency       of    [the    alleged      victim's]         statements      over

time,' the fact that she could provide sensory details, and

because     her    knowledge       of   the     sexual       act       was   beyond    her

developmental level."          Id. at ___, 747 S.E.2d at 166, 167.                     This

Court noted that "[t]he alleged 'disclosure' was [the victim's]

description of the abuse" and explained that "[there] may have

been a sufficient foundation to support an opinion as to whether

[the victim] exhibited symptoms or characteristics of victims of

child     sexual    abuse;      however,      it     was     insufficient       for    the

admission     of    Dr.    Brown's       judgment          that    [the      victim]     is

believable."       Id. at ___, 747 S.E.2d at 167.                       The Court held

that "[w]hile Dr. Brown did not diagnose [the victim] as having

been sexually abused, she essentially expressed her opinion that

[the victim] is credible[,]" and the trial court, therefore,

erred in admitting the testimony.                    Id. at ___, 747 S.E.2d at

167.

       Thus, in Frady, the expert did not testify regarding the

alleged    victim    having        exhibited       symptoms       or    characteristics
                                     -13-
consistent with general profiles and characteristics of sexually

abused   children,        but   rather   testified    that   the   victim's

disclosures were consistent with sexual abuse -- an expression

of an expert opinion regarding the victim's credibility.                  In

this case, however, Ms. Browning testified extensively, based on

a review of academic literature, about the elasticity of female

genitalia as the reason why a vast majority of young girls who

are sexually abused do not exhibit physical symptoms of abuse.

Based on these characteristics           --   rather than solely on the

particularities      of     Cheyenne's   disclosure    --    Ms.   Browning

testified   that   Cheyenne's      disclosure   was   consistent   with   an

alleged claim of abuse.         For these reasons, Ms. Browning did not

improperly bolster Cheyenne's claims of abuse, and the trial

court did not commit plain error in allowing her testimony.


    No error.

    Judges STEELMAN and McCULLOUGH concur.

    Report per Rule 30(e).
