An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-14
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014


STATE OF NORTH CAROLINA

       v.                                     Randolph County
                                              No. 10 CRS 050590
TREMAYNE WENDELL CARROLL



       Appeal by defendant from judgment entered 26 April 2013 by

Judge L. Todd Burke in Randolph County Superior Court.                    Heard in

the Court of Appeals 20 May 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Jill A. Bryan, for the State.

       Russell J. Hollers III for defendant-appellant.


       HUNTER, Robert C., Judge.


       Tremayne      Wendell     Carroll      (“defendant”)         appeals    from

judgment entered after a jury convicted him on four counts each

of first degree rape, taking indecent liberties with a child,

and sex offense in a parental role.              On appeal, defendant argues

that   the   trial    court    erred   by:   (1)   allowing     a    physician    to

diagnose the alleged victim as having been sexually assaulted by

defendant; and (2) admitting improper expert testimony vouching
                                  -2-
for the credibility of the child witness.

    After careful review, we hold that the trial court erred in

both instances, but neither amounts to plain error.

                               Background

    The alleged victim in this case, T.S.1, was born in December

1998.      In 2009, she lived with her mother (“Lorraine”), her

siblings, and defendant, who was her stepfather.           Defendant and

Lorraine    experienced    difficulties     with   their   marriage    and

separated for a period of time in the summer of 2009.

    In fall of 2009, T.S.’s maternal grandmother (“Doris”) came

into town to help Lorraine take care of her children.                 While

doing laundry, Doris noticed a brownish, unusual discharge on

T.S.’s underwear that made her suspicious.          She confronted T.S.

about the stain on 19 October 2009, and T.S. told her that

defendant had sex with her.        That night, Doris told Lorraine

what T.S. had told Doris.

    After hearing T.S.’s allegation, Lorraine took T.S. to the

emergency department at Randolph Hospital.            At the hospital,

Lorraine approached Officer Gary Rippey (“Officer Rippey”) of

the Asheboro Police Department and told him that T.S. had been

sexually assaulted.       Officer Rippey interviewed T.S. in one of

1
  Pseudonyms will be used to refer to the alleged victim and her
family to protect the child’s privacy and for ease of reading.
                                     -3-
the hospital rooms.       T.S. told Officer Rippey that defendant

sexually assaulted her five or six times between February 2009

and October 2009.    She said that defendant would pick her up out

of her bed, carry her into his bedroom, remove her panties, and

engage in vaginal intercourse with her until ejaculating onto

her stomach.    After speaking with T.S., Officer Rippey contacted

the Department of Social Services.

    Lisa Powell (“Ms. Powell”), an employee with the Randolph

County Child Protective Services, responded to Officer Rippey’s

call.   She     arrived   at   the   hospital   and   conducted   another

interview with T.S.       T.S. told Ms. Powell that beginning in

February 2009, defendant engaged in vaginal intercourse with her

three or four times, using the same method she had described to

Officer Rippey—defendant would take her out of her bedroom and

lay her onto his bed, remove her clothing, and have sex with her

until ejaculating onto her stomach.        T.S. also told Ms. Powell

that defendant told her not to tell Lorraine, because Lorraine

would not believe T.S.

    After the interviews with Officer Rippey and Ms. Powell,

T.S. was examined by Dr. Marcus Gentry (“Dr. Gentry”).                Dr.

Gentry was accepted at trial as an expert in emergency room

medicine.      Dr. Gentry conducted a pelvic exam and noticed a
                                              -4-
whitish discharge coming from T.S.’s vagina.                                 He obtained a

sample       of    the   discharge      for     testing.           The     sample    returned

positive for chlamydia, a sexually transmitted disease that Dr.

Gentry testified could only be present after sexual activity

with    an    infected       partner.         Dr.     Gentry       also    examined   T.S.’s

hymen.        He noted that although the hymen was intact, it had

tearing and scarring indicative of older trauma.                              When asked at

trial whether he had an opinion regarding T.S.’s symptoms and

the positive test for chlamydia, Dr. Gentry testified that he

believed T.S. had been sexually abused, and that since she was

implicating         defendant,       Dr.        Gentry    believed           defendant     was

responsible for the sexual abuse.

       After       the   physical    examination         by    Dr.        Gentry,   T.S.   was

taken    to       Baptist    Hospital      in    Winston-Salem,            North    Carolina,

where she met with Joyce Latham (“Ms. Latham”), a sexual assault

nurse examiner.          T.S. told Ms. Latham that beginning in February

2009, defendant would come into her room, carry her into his

bedroom, remove her clothing, and then have vaginal intercourse

with her before ejaculating onto her stomach.                              Ms. Latham did a

“blind sweep” for vaginal discharge that may be indicative of a

sexually      transmitted       disease         but   found        none.      However,     she

testified         that   a   lack    of    discharge          at    that     time    did   not
                                     -5-
necessarily mean that T.S. did not have chlamydia.                         Ms. Latham

took photos of T.S.’s genitals and testified at trial that they

appeared abnormal; specifically, she observed irregularities in

T.S.’s hymen that could be related to an older injury, but there

were no signs of any recent trauma.

    Dr.     Angela   Stanley    (“Dr.     Stanley”)      examined        T.S.     on    16

November    2009.      Dr.     Stanley    testified          at    trial       that    the

irregularities with T.S.’s hymen were not specific to sexual

abuse.      However, she clarified that T.S.’s physical exam was

“supportive” of T.S.’s statement that “contact occurred.”                              She

also noted that a finding of chlamydia “would be a definite

indicator    that    sexual   contact     has    occurred         to   transmit       that

infection to the child.”

    Lorraine provided three articles of T.S.’s clothing to law

enforcement    personnel—one      t-shirt       and    two    pairs      of     panties.

T.S. testified that the t-shirt her mother gave to the police

had been ejaculated onto by defendant during one of the sexual

assaults.      Forensic       scientist    Jessica       Posto         (“Ms.     Posto”)

testified that she examined particles from all three pieces of

clothing and found sperm from the sample taken from T.S.’s t-

shirt.      Thereafter,   Jennifer       Elwell       (“Ms.   Elwell”),         who    was

accepted at trial as an expert in the field of DNA analysis,
                                               -6-
testified that the DNA profile obtained from the semen on T.S.’s

shirt matched that of defendant.

         The    State     also       called    T.S.’s      therapist,         Michelle     Noble

(“Ms. Noble”) to testify at trial.                      Ms. Noble testified that she

is   a    licensed        professional         counselor      in    North       Carolina      and

specializes in sexual abuse cases involving children.                                 Ms. Noble

met with T.S. roughly twenty-five times.                            At trial, Ms. Noble

testified         that        T.S.   kept     her    account       of    abuse        consistent

throughout their counselling sessions.                       Ms. Noble also testified

that in regard to child victims in general, consistency is an

important indication of the child’s truthfulness and that in

T.S.’s         case     she     “never      felt    like    there       was     any    kind     of

manipulation.”

         Defendant took the stand in his own defense at trial and

denied having abused T.S.                     Defendant testified that he had a

good relationship with T.S. and that although he and T.S. would

often sleep in the same bed, no sexual contact ever occurred

between         them.          Defendant      also    testified         that     he     believed

investigators           tampered      with    evidence      against       him    and     that    a

mentally handicapped relative had been accused of molesting T.S.

before.

         The jury returned guilty verdicts on all charged crimes.
                                          -7-
The trial court consolidated the charges into a single B1 felony

and sentenced defendant to 240 to 297 months imprisonment, with

credit    given    for     1,177   days    spent    in     confinement      prior    to

judgment.         Defendant gave notice of appeal in open court.

                                    Discussion

              I. Dr. Gentry’s Opinion as to Defendant’s Guilt

       Defendant     first    argues      that    the     trial    court    erred   by

allowing Dr. Gentry to testify that in his opinion, defendant

was the individual who sexually abused T.S.                       We agree that the

trial court erred by admitting this testimony, but we find no

plain error.

       Since defendant failed to object to the admission of Dr.

Gentry’s testimony, we review this issue for plain error.                           See

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

(2012).

              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.

Id. (citation and quotation marks omitted).                       Plain error is to

be “applied cautiously and only in the exceptional case,” or one

that    “seriously    affect[s]      the    fairness,       integrity       or   public
                                  -8-
reputation of the judicial proceedings.”           Id.      (citation and

quotation marks omitted).

    At trial, Dr. Gentry testified as follows: “[m]y opinion is

that [T.S.] was engaged in sexual activity with someone who had

chlamydia, and had passed it to her.          And as she was accusing

[defendant] at the time, that was my opinion, that it was the

sexual abuse from [defendant].”         Defendant does not challenge

Dr. Gentry’s opinion that T.S. had been sexually abused.                He

contends only that Dr. Gentry’s identification of defendant as

the perpetrator of the sexual abuse amounts to plain error.

    “With respect to expert testimony in child sexual abuse

prosecutions,   our   Supreme   Court   has   approved,   upon   a   proper

foundation, the admission of expert testimony with respect to

the characteristics of sexually abused children and whether the

particular   complainant    has   symptoms     consistent     with   those

characteristics.”     State v. Dixon, 150 N.C. App. 46, 52, 563

S.E.2d 594, 598, aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002).

However, even where an expert opinion that a victim has been

abused is based on a proper foundation, an expert opinion that

the victim was abused specifically by a particular defendant is

generally not admissible.       See State v. Figured, 116 N.C. App.

1, 9, 446 S.E.2d 838, 843 (1994) (holding that a doctor’s expert
                                           -9-
opinion    that    the   child    victim         was    abused     by    the     defendant

constituted improper opinion testimony because it did not relate

to a diagnosis derived from physical examination of the witness

in the course of medical treatment).

       The State does not contest that Dr. Gentry’s opinion that

T.S. was sexually abused by defendant was admitted into evidence

erroneously.       Indeed, based on Dr. Gentry’s own admission that

the basis for his opinion as to defendant’s guilt stemmed only

from   T.S.’s     allegations,        we    conclude       that     this       constituted

improper expert opinion testimony.                     See Figured, 116 N.C. App.

at 9, 446 S.E.2d at 843.          However, the State argues that in the

face of the overwhelming evidence indicating defendant’s guilt,

where the case did not turn solely on the credibility of the

prosecuting     witness,    the   erroneous            admission    of     Dr.    Gentry’s

testimony did not amount to plain error.                   We agree.

       Defendant    contends      that       the       facts   of       this     case   are

comparable to State v. Ryan, __ N.C. App. __, 734 S.E.2d 598

(2012), disc. review denied, __ N.C. __, 736 S.E.2d 189 (2013).

In Ryan, this Court held that the erroneous admission of an

expert’s   opinion       that   the    defendant         was   guilty      of     sexually

abusing the alleged child victim amounted to plain error.                               Id.

at __, 734 S.E.2d at 606-07.               The Court noted that “[a]ll of the
                                          -10-
State’s    evidence        relied   in   whole    or    in    part   on   the   child’s

statements concerning the alleged sexual abuse.”                      Id. at __, 734

S.E.2d at 606.         The only physical evidence tending to indicate

that the child had been sexually abused was a hymenal notch and

the presence of bacterial vaginosis, the latter of which, the

Court noted, is not determinative of sexual abuse and can have

unrelated causes.           Id. at __, 734 S.E.2d at 601-06.               Except for

the   erroneously          admitted      testimony       of    the   physician       who

identified defendant as the perpetrator of the abuse, all of the

other evidence presented by the State “amounted to conflicting

accounts from the child, defendant, and their families.”                        Id. at

__, 734 S.E.2d at 607.                Thus, because the physician was an

expert in treating sexually abused children, the Court concluded

that “her opinion likely held significant weight with the jury”

and   “had    a    probable    impact     on     the   jury’s    finding    defendant

guilty by enhancing the credibility of the child in the jurors’

minds.”      Id.

      Ryan is distinguishable from the present case in material

aspects.          First,    there   is    significant         physical    evidence    in

addition to Dr. Gentry’s opinion that both corroborates T.S.’s

testimony      and    directly      implicates         defendant     in   the    crimes

charged.       T.S. consistently told her family, law enforcement
                                       -11-
personnel, and medical experts that defendant would ejaculate

onto her stomach after engaging in vaginal intercourse with her.

She    testified    that     the     t-shirt       submitted       for    examination

contained defendant’s semen.               This testimony was corroborated

when   the   t-shirt      returned    a    positive       sample    for    semen    and

further testing showed that the semen matched defendant’s DNA.

Additionally,      T.S.    tested    positive       for    chlamydia      during   her

examination with Dr. Gentry.               Both Dr. Gentry and Dr. Stanley

testified    that   chlamydia       can    only    be     transmitted      by   sexual

intercourse, unlike the bacterial vaginosis in Ryan which can

have many causes.         See Ryan, __ N.C. App. at __, 734 S.E.2d at

601.     Lorraine      testified     that     defendant      infected       her    with

chlamydia    sometime       in     2007,     but     defendant       never      sought

treatment.    Thus, the jury could have permissibly and reasonably

inferred from this circumstantial evidence that defendant served

as the source of T.S.’s infection.                  See State v. Parker, 354

N.C. 268, 279, 553 S.E.2d 885, 894 (2001) (noting that the law

does not distinguish between the weight given to circumstantial

and direct evidence).        Furthermore, in both Dr. Gentry’s and Ms.

Latham’s unchallenged expert opinions, the notches observed in

T.S.’s hymen and the “fullness” of her genitals indicated trauma

consistent with sexual abuse.               Dr. Gentry testified that the
                                   -12-
irregularity of T.S.’s hymen was consistent with older trauma,

which would corroborate T.S.’s testimony that the abuse occurred

throughout     the   approximately      eight      months    prior     to    being

examined by Dr. Gentry.         Finally, Lorraine testified that she

came home from work one day around February 2009, which was

within time frame that T.S. identified as when the abuse took

place, and found T.S. and defendant in bed together, with T.S.

only wearing her bra and underwear.          Lorraine testified that she

was very upset when she saw them in bed and told T.S. to not

sleep with defendant any more.

       Aside from Dr. Gentry’s identification of defendant as the

perpetrator,      substantial   evidence     was     admitted    at    trial       to

support the jury’s guilty verdicts.             In this respect, the facts

here   are   comparable    to   those   in   cases     where    the    erroneous

admission    of   expert   identification       of   the    defendant       as    the

perpetrator of sexual abuse did not amount to plain error.                       See,

e.g., Figured, 116 N.C. App. at 9, 446 S.E.2d at 843 (holding

that where physical examination by two physicians of the child

victims revealed symptoms consistent with sexual abuse, there

was no reasonable probability that the admission of the improper

expert    testimony     that    identified       the       defendant    as        the

perpetrator affected the jury’s decision).
                                         -13-
       Accordingly, after reviewing the entire record, we conclude

that the erroneous admission of Dr. Gentry’s opinion did not

rise to the level of plain error.

  II. Ms. Noble’s Expression of Opinion on T.S.’s Credibility

       Defendant      next    argues    that       the     trial    court      erred    by

allowing Ms. Noble to offer an expert opinion that improperly

commented      on    T.S.’s    credibility.           We       agree.      However,      we

conclude that the admission of this testimony                           also   does not

amount to plain error.

       Because defendant failed to object to this testimony at

trial, we review for plain error.                    See Lawrence, 365 N.C. at

518, 723 S.E.2d at 334.

       “Our   appellate       courts    have       consistently         held   that     the

testimony of an expert to the effect that a prosecuting witness

is believable, credible, or telling the truth is inadmissible

evidence.”      State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d

651,   655    (1988).         “[T]estimony         that    [the    expert]      was     not

concerned     that    the     child    was    giving       a    fictitious     story    is

tantamount to her opinion that the child was not lying about the

sexual abuse.”         Ryan, __ N.C. App. at __, 734 S.E.2d at 604

(citation      and    quotation       marks     omitted).          Furthermore,         the

Supreme      Court    has    found    that    it    is     reversible       error      when
                                      -14-
“experts have testified that the victim was believable, had no

record   of    lying,   and   had   never    been   untruthful.”   State   v.

Aguallo, 322 N.C. 818, 822, 370 S.E.2d 676, 678 (1988).

    Here, Ms. Noble testified extensively as to whether or not

T.S. was being truthful.            Specifically, Ms. Noble testified as

follows:

              [T.S. is] one of the clients that I’ve had
              that was so consistent with her story from
              day one. She told me what happened and her
              story stayed consistent throughout the time
              that I worked with her. . . .

              [I]f something is so traumatic to you that
              your story stays consistent, then that it
              is—that’s very telling; you know, that this
              is something that—you know, a lot—it’s hard
              to—it’s hard to keep a lie going, you know?
              And that’s in my—in my line of business,
              when—you know, when kids are having behavior
              problems, that’s—that’s one thing that we
              can always count on, that, you know, if it’s
              a lie, we’re gonna find out sooner or later,
              you know. So for [T.S.] to be consistent,
              you know, that tells me something.

At a later point in the trial, Ms. Noble further testified that:

              You know, I—I don’t have a truth detector in
              my office, but I—I have a pretty good gut,
              and I never, I never felt like there was any
              kind of manipulation.    I felt like [T.S.]
              showed up and told her story and she stayed
              consistent throughout that time.

    In light of the long-standing rule in North Carolina that

an expert may not vouch for the credibility of a child witness,
                                       -15-
we    conclude     that   the     portions      of    Ms.     Noble’s      testimony

specifically addressing the credibility of T.S.’s account of the

abuse   were     erroneously      admitted.          Particularly,        Ms.   Noble

testified that “[s]o for [T.S.] to be consistent, you know, that

tells me something” and “[y]ou know, I—I don’t have a truth

detector in my office, but I—I have a pretty good gut, and I

never, I never felt like there was any kind of manipulation.”

The former statement is similar to the testimony in Ryan that

the   expert     “was   not    concerned   that      the    child   was    giving   a

fictitious story,” which this Court held was improper since it

was “tantamount to her opinion that the child was not lying

about the sexual abuse.”           Ryan, __ N.C. App. at __, 734 S.E.2d

at 604.    With the latter statement, Ms. Noble went farther than

the witness in Ryan; she directly testified that she did not

think T.S. was lying.            Thus, because these statements vouched

for the credibility of T.S.’s account of abuse, we conclude that

they were admitted erroneously.               See, e.g., Figured, 116 N.C.

App. at 9, 446 S.E.2d at 843; Bailey, 89 N.C. App. at 219, 365

S.E.2d at 655.

      Although     some   of    Ms.   Noble’s     comments     were     erroneously

admitted, we conclude that such error does not rise to the level

of one that “seriously affects the fairness, integrity or public
                                           -16-
reputation of judicial proceedings.”                   Lawrence, 365 N.C. at 518,

723 S.E.2d at 334.          The State presented substantial evidence in

addition    to     Ms.    Noble’s      testimony       that       directly    implicated

defendant and independently corroborated T.S.’s testimony, such

as: (1) a semen stain on T.S.’s shirt that matched defendant’s

DNA; (2) T.S.’s positive diagnosis for chlamydia, a sexually

transmitted      disease        that   can    only     be    transferred      by   sexual

intercourse; (3) Lorraine’s testimony that she was infected with

chlamydia     by       defendant       and     that        defendant      never    sought

treatment;       (4)     Lorraine’s       testimony        that    she    walked   in   on

defendant and T.S. sleeping in the same bed, with T.S. only

wearing a bra and panties; and (5) the expert opinions of Dr.

Gentry and Ms. Latham, built on a proper foundation of physical

evidence, that T.S. had been sexually abused.                            Thus, there was

considerable       evidence       directly         implicating      defendant      in   the

charged     crimes        and     having       the     effect       of     independently

corroborating T.S.’s testimony                 that defendant sexually abused

her.

       In light of this evidence, we conclude that there is no

reasonable    probability          that      the    jury    would    have    returned     a

different verdict had Ms. Noble’s erroneous opinion as to T.S.’s
                               -17-
credibility been excluded.   Accordingly, we find no plain error.2

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

                             Conclusion

    After careful review, we hold that the trial court erred by

admitting portions of Dr. Gentry’s and Ms. Noble’s testimony,

but because these errors did not have a probable impact on the

jury’s verdict, they do not amount to plain error.



    NO PREJUDICIAL ERROR.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).




2
  We note that there is currently no caselaw supporting a
cumulative plain error analysis in North Carolina. See State v.
Bellamy, 172 N.C. App. 649, 662, 617 S.E.2d 81, 90 (2005)
(“Where, as here, defendant contests separate admissions of
evidence under the plain error rule, each admission will be
analyzed separately for plain error, not cumulatively.”)
