               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 132PA15

                                Filed 15 April 2016

STATE OF NORTH CAROLINA

             v.
RANDY CARTER DAVIS



      On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 768 S.E.2d 903 (2015), finding no error

after appeal from judgments entered on 30 September 2013 by Judge Jeffrey P. Hunt

in Superior Court, Cleveland County. Heard in the Supreme Court on 22 March 2016.


      Roy Cooper, Attorney General, by Robert M. Curran, Special Deputy Attorney
      General, for the State.

      Mark Montgomery for defendant-appellant.


      HUDSON, Justice.


      Here we are asked to determine whether expert testimony about general

characteristics of child sexual assault victims and the possible reasons for delayed

reporting of such allegations constitutes expert opinion testimony, subject to

disclosure in discovery under N.C.G.S. § 15A-903(a)(2). We hold that it does, and

thus, the State failed to satisfy its statutory obligations when it did not produce

summaries of the experts’ opinions and the basis for those opinions in response to

defendant’s discovery requests. However, because we conclude that defendant has
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                                     Opinion of the Court



failed to carry his burden of showing prejudice, we modify and affirm the decision of

the Court of Appeals upholding his convictions.


       In September 2013, defendant stood trial for various sexual offenses alleged to

have been perpetrated on two minors, G.S. and L.W.1 The State’s evidence at trial

tended to show the following: defendant was G.S.’s stepfather and he sexually abused

her from the time she was around three-and-a-half years old until she was thirteen

years old. At the time of trial, G.S. was thirty-six years old. As an adult, G.S. had

nightmares and trouble sleeping, and she was hospitalized in 2006 for suicidal

thoughts. She also had problems with alcohol dependency. G.S. never reported the

alleged abuse to the authorities until October of 2011, when she was in her mid-

thirties; she told her boyfriend when she was sixteen, and when she was in her early

thirties, she told her pastor. She also reported the abuse to a psychiatrist, Vikram

Shukla, M.D., when she was hospitalized in 2006 and to her therapist, Sandra

Chrysler, in March 2013.


       Dr. Shukla was tendered as an expert in child and adolescent psychiatry, and

Ms. Chrysler as an expert in mental health counseling, both without objection. Both

testified to their specific interactions with G.S., but then both also testified more

generally regarding the characteristics of child sexual abuse victims and potential


       1 As is our custom and per Appellate Rule 4(e), we use the initials G.S. and L.W. to
protect the identity of the victims even though the trial proceedings occurred when they were
both adults. N.C. R. App. P. 4(e).

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reasons for delayed reporting of allegations of abuse.2 Once the questioning turned

more generalized, defense counsel objected to each and every question, citing

Evidence Rules 401 through 403, failure to provide discovery per N.C.G.S. § 15A-

903(a)(2), and several provisions of the Constitutions of the United States and North

Carolina.3 Defendant had been provided a curriculum vitae for each expert and a

medical records summary for G.S., but was not given a summary of any expert opinion

testimony or the basis for any such opinion. Initially, at the close of voir dire, the

trial court ruled that these witnesses would not be allowed to give opinions; however,

in front of the jury, defendant’s objections were ultimately overruled and the trial

court allowed the experts to testify to matters that they had “observed.”


       The State also presented evidence that L.W. was defendant’s stepdaughter (by

a different mother; G.S. and L.W. are not biologically related). L.W., who is six

months older than G.S., testified that defendant engaged in improper sexual

conversations with her and attempted to sexually abuse her from the time she was

thirteen or fourteen until she moved out of the house at age seventeen. L.W. never

reported the abuse until 2011 when she was contacted by a detective.




       2 The specific testimony about treatment here referred only to G.S.; however, the more
general testimony about child abuse victims and delayed reporting could have pertained to
both alleged victims.

       3In its order allowing review of this matter, this Court dismissed defendant’s Notice
of Appeal based on constitutional questions.

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      Additionally, the State elicited testimony from two other alleged victims under

Rule 404(b) of the North Carolina Rules of Evidence. Both girls testified that when

they were in their early teens, defendant discussed inappropriate sexual matters with

them. The State also called to the stand defendant’s pastor, who testified that

because of “an accumulated amount” of complaints about defendant and teenage girls,

defendant was banned from the church premises.


      A jury convicted defendant on all charges and defendant appealed. The Court

of Appeals determined that defendant received a fair trial free of reversible error.

State v. Davis, ___ N.C. App. ___, ___, 768 S.E.2d 903, 913 (2015). While defendant

argued that the State had failed to provide discovery as required by N.C.G.S. § 15A-

903(a)(2), the court determined on appeal that the expert testimony in question (that

of Dr. Shukla and Ms. Chrysler) was not opinion testimony “of the type that was

required to be disclosed under N.C. Gen. Stat. § 15A-903.” Id. at ___, 768 S.E.2d at

908. As to Dr. Shukla, the court concluded that he “did not testify that there is a

specific constellation of characteristics of sexual abuse victims, did not opine on

whether G.S. met such a profile, and did not offer an expert opinion of the type that

was required to be disclosed under N.C. Gen. Stat. § 15A-903.” Id. at ___, 768 S.E.2d

at 908.   Similarly, as to Ms. Chrysler, the court “conclude[d] that, because Ms.

Chrysler’s general testimony about sexual abuse victims was limited to her own

observation and experience, it did not constitute an expert opinion that had to be

disclosed in advance of trial.” Id. at ___, 768 S.E.2d at 908.

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                                   Opinion of the Court



      In the Court of Appeals, defendant raised three issues on which that court

declined to grant relief. Id. at ___, 768 S.E.2d at 905. He repeated all three in his

petitions for discretionary review and for writ of certiorari before this Court:

             1) whether the trial court erred in admitting the opinion
             testimony of witnesses Shukla and Chrysler; 2) whether
             the trial court erred in admitting the testimony of other
             witnesses who claimed that Mr. Davis made inappropriate
             comments to them; 3) whether the trial court erred in
             instructing the jury that the complaining witnesses were
             “victims.”

We allowed review by special order to address only “whether the trial court erred in

admitting the opinion testimony of witnesses Shukla and Chrysler.”


             The Court of Appeals reviewed the issue before us for abuse of

discretion. Id. at ___, 768 S.E.2d at 907. In our consideration of the one issue on

which we allowed review, we note that usually “[d]etermining whether the State

failed to comply with discovery is a decision left to the sound discretion of the trial

court.” State v. Jackson, 340 N.C. 301, 317, 457 S.E.2d 862, 872 (1995) (citation

omitted). Here, however, the question is one of statutory interpretation which we

review de novo:

             Had the trial court found the violation, in its discretion it
             could have imposed any or all of the statutory sanctions,
             including the sanction requested by defendant at trial . . . .
             In that case, our task would have been to determine
             whether the trial court properly exercised its discretion in
             the choice of a sanction. Because the court failed to find the
             violation, however, and consequently failed to exercise its
             discretion, the ruling is reviewable. Cf. State v. Brogden,
             334 N.C. 39, 46, 430 S.E.2d 905, 909 (1993) (“ ‘When the

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                                    Opinion of the Court



             exercise of a discretionary power of the court is refused on
             the ground that the matter is not one in which the court is
             permitted to act, the ruling of the court is reviewable.’ ”)

State v. Patterson, 335 N.C. 437, 455, 439 S.E.2d 578, 588-89 (1994) (emphasis added).


      Pursuant to N.C.G.S. § 15A-903(a)(2), “[u]pon motion of the defendant, the

[trial] court must order:”

             The prosecuting attorney to give notice to the defendant of
             any expert witnesses that the State reasonably expects to
             call as a witness at trial. Each such witness shall prepare,
             and the State shall furnish to the defendant, a report of the
             results of any examinations or tests conducted by the
             expert. The State shall also furnish to the defendant the
             expert’s curriculum vitae, the expert’s opinion, and the
             underlying basis for that opinion.

N.C.G.S. § 15A-903(a)(2) (2015) (emphasis added). It is well settled that “the purpose

of discovery under our statutes is to protect the defendant from unfair surprise by the

introduction of evidence he cannot anticipate.” State v. Payne, 327 N.C. 194, 202, 394

S.E.2d 158, 162 (1990) (citations omitted), cert. denied, 498 U.S. 1092 (1991).


      The central question here is whether the State’s expert witnesses gave opinion

testimony so as to trigger the discovery requirements under section 15A-903(a)(2).

The State contends that Dr. Shukla and Ms. Chrysler only testified to facts;

defendant asserts that the testimony of both included a number of expert opinions

and that he was entitled to receive via discovery summaries of these opinions and

their underlying rationales. Black’s Law Dictionary defines “opinion” as “[a] person’s

thought, belief, or inference, esp. a witness’s view about [ ] facts in dispute, as opposed

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                                      Opinion of the Court



to personal knowledge of the facts themselves,” and “opinion evidence” as “[a]

witness’s belief, thought, inference, or conclusion concerning a fact or facts.” Opinion,

opinion evidence, Black’s Law Dictionary (10th ed. 2014). According to Evidence Rule

702(a), an expert may give an opinion “[i]f . . . technical or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue,”

and if the other requirements of Rule 702 apply. N.C.G.S. § 8C-1, Rule 702(a) (2015).

In other words, when an expert witness moves beyond reporting what he saw or

experienced through his senses, and turns to interpretation or assessment “to assist”

the jury based on his “specialized knowledge,” he is rendering an expert opinion.4 See

id.   We recognize that determining what constitutes expert opinion testimony

requires a case-by-case inquiry in which the trial court (or a reviewing court) must

look at the testimony as a whole and in context. In doing so here, we conclude that

both Dr. Shukla and Ms. Chrysler gave expert opinions that should have been

disclosed in discovery.


       Specifically, both witnesses offered expert opinion testimony about the

characteristics of child sexual abuse victims.5 Dr. Shukla was asked, “[W]hat have


       4  We note that in the lay opinion context, we consider “shorthand statements of fact”
or “instantaneous conclusions of the mind” as fact, not opinion. See, e.g., State v. Lloyd, 354
N.C. 76, 109, 552 S.E.2d 596, 620 (2001) (“The instantaneous conclusions of the mind as to
the appearance, condition, or mental or physical state of persons, animals, and things,
derived from observation of a variety of facts presented to the senses at one and the same
time, are, legally speaking, matters of fact, and are admissible in evidence.”). Nothing in this
opinion affects that precedent.
        5 In the transcript, one can see a clear turning point at which the testimony of each of



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                                     Opinion of the Court



you observed in the course of your practice as to some of the manifestations of

childhood sexual abuse?” He responded, at length:

              In the course of my practice as a child, adolescent and adult
              psychiatrist I work with children who have been abused.
              Then immediately or later on, in months and years, they
              come back, at any age, and the manifestations of the
              abused children who are victimized with sexual abuse can
              go according to the developmental age of the child. If it’s a
              small child who cannot speak and articulate what
              happened, this child may role play, role play the trauma,
              role play what was done to the child. They may role play
              and act like what happened, doing the actual victimization
              with a sexual motion that the child is not expected to know
              and it’s a very common understanding of all of us.
                  They may have terrible dreams but not be able to speak
              about the dreams. If it is a very young child, they may not
              have much to go with, what happened. The older the child,
              of understanding age, developmentally the child may be
              able to say, “Mommy, mommy, Uncle Tom did this to me,”
              and mommy would say, “What happened?” But the
              patients says [sic], “Uncle Tommy put his wee-wee in me,”
              the child’s interpretation of what Uncle Tom did. And I’m
              not talking about any particular case; I’m not talking about
              a specific case.
                  Older children may or may not be able to verbalize what
              happened, depending on the circumstances of the abuse.
              The child may be told this is what we’re supposed to do,
              daddy loves you so daddy can do this, so that the child does
              not understand that it’s wrong. The child may not be
              objecting to it; they may be okay with it and may not have
              understanding, and then at some point realizes that
              something is not really right.
                  They have complaints about depression or problems
              that may be emerging, depending on how vulnerable the
              child is to the genetics of trauma. Some children withstand


these experts pivoted from case-specific testimony to more general views based on experience.
In Dr. Shukla’s testimony, this occurred at page 315 of the transcript; in Ms. Chrysler’s, at
page 678.

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                                   Opinion of the Court



             it and go through all right. They will say yeah, it happened,
             but I’m tough. It happened, I had bad dreams for a month
             and a day, and I got over it. Others, they are extremely
             traumatized. They have a mild dose of trauma, it happened
             one time, I told mom, and mom got rid of the boyfriend, no
             more problems.
                 The child will say I remember, I asked a forty-year old
             woman, she says, “I have not told anybody but you, doctor.
             Nobody really asked me if I was touched by Uncle Tom. It
             happened, and my mom, (unintelligible).[”] Sometimes the
             trauma is larger and the genetic vulnerability of the person
             –- it’s genetic; we have no control. We have all these other
             genes, we have no control. Battered women, bad genes,
             boom.
                 We have trauma, depression, nightmares, insomnia,
             flashbacks. Other symptoms may include depression,
             suicide attempt. What happened, how was your childhood,
             did anybody touch you in the wrong places, any trauma, if
             I don’t ask they might not tell me, so I have to be very
             careful with this initial meeting and the follow-up.

Ms. Chrysler testified:

             Q. Ms. Chrysler, can you tell me what are some of your
                observations with respect to the child abuse victims
                that you have treated, both adults and children, as to
                some of the characteristics that they can and tend to
                exhibit?

                ....

             A. A lot of the characteristics of someone who has been
                sexually abused or traumatized, in my experience and
                education, is that this person has an overall lack of
                trust, views the world as a very scary and dangerous
                place. It’s often seen that there is a lot of anxiety, a lot
                of anxiousness, sometimes they can slip into a
                depressed mood, isolating themselves because of that
                lack of trust and fearfulness of the world. That is
                something that I’ve seen in my work with victims of
                sexual abuse.


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                                  Opinion of the Court



             Q. Does it tend to make a difference in what you see
                whether the person experiences that as an adult or a
                child?

                 ....

             A. It’s not different in my experience from what I’ve seen.
                My education and my experience tells me that both as
                a child, adolescent and adult the victims of sexual abuse
                that I have come in contact with exhibit a lot of the same
                characteristics, that feeling of guilt and shame about
                what has happened to them. Like I said a minute ago,
                just that lack of trust, viewing the world as a scary,
                dangerous place. You know, also just low mood, that is
                something that’s across the board with victims of sexual
                abuse.

She further testified:

             Q. Are there any certain – are there any – is there any
                series or cluster of mental health illnesses or symptoms
                that you have seen in your practice associated with your
                patients who have been sexually victimized as children?

                 ....

             A. Sexual abuse can be the trigger for all sorts of mental
                illnesses. Some of the illnesses are hereditary, you
                know, they’re in your genes, you know, you’re
                predisposed to having something like bipolar disorder.
                Something that happens to you that’s traumatizing can
                bring that out. Typically adults with mental illness,
                severe mental illness, it generally comes out at college
                age, you know, in their young twenties. Sometimes
                victims of sexual abuse, this will begin to manifest in
                the form of high anxiety, sleeplessness, lack of appetite,
                depressed mood, isolative (sic) behaviors, and based on
                that, somebody who is predisposed to mental illness,
                like bipolar disorder, yeah, the trauma could manifest.
                The trauma could perpetuate something like that.



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                                  Opinion of the Court



This testimony goes beyond the facts of the case and relies on inferences by the

experts to reach the conclusion that certain characteristics are common among child

sexual assault victims. Although not elicited by the typical “Doctor, do you have an

opinion?” question, it is plainly expert opinion testimony that the witnesses were

prepared to give.


      Similarly, both experts also offered expert opinion testimony explaining why a

child victim might delay reporting abuse. Dr. Shukla testified as follows:

             Q. What is your observation about whether [child sex
                abuse] is commonly reported immediately, when
                children experience sexual abuse or trauma, as opposed
                to later in life?

                    ....

             A. The immediate effects of sexual trauma may be
                developmentally related, so a child of understanding
                age, –- depending on the psycho-socio circumstances,
                three-year-old, four-year-old, five-year-old, older child,
                will be able to say something terrible happened, or
                something happened that makes a person uneasy. If the
                mother is not paying attention or unwilling to pay
                attention, then it goes on, and a child may be led to
                believe that it’s normal. Or if you say something, I will
                kill the whole family, or I will hurt you, or mom will be
                dead, or some psychological guilt trip.
                    So the signs and symptoms of immediate trauma can
                be depression, can be terrible sleep, acute trauma
                symptoms, psycho-physiological disturbances, anxiety
                attacks, panicky feelings, panic attacks, the mind goes
                in these directions, which is exactly where it will go.
                There is no linear prediction where the mind will
                function after a serious trauma, and for a child, sexual
                trauma is a serious trauma.
                    It could be like serious traumas, life and death

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                                  Opinion of the Court



                experiences, accidents, World War I, soldiers, bombs,
                everyone’s dead, loses his leg, carried to the hospital,
                starts having nightmares, flashbacks, depression,
                alcohol, what have you. It will happen with a
                combination of these signs and symptoms that occur
                immediately. And sometimes it does not happen;
                symptoms of numbness can occur. A child may have a
                serious problem functioning, but that is one of the
                common things I see is functional loss, where a child is
                at school, home, with family or friends, the child is not
                functioning well academically or be able to verbalize
                what is wrong. Oh, nothing, I’m fine, may not say
                anything.
                    They say years later, may say, only when asked,
                maybe re-traumatized after twenty years, then the
                symptoms can begin. When the child who grew us [sic]
                is a doctor, and the doctor get molested or has to go
                through a life or death trauma, symptoms can be
                reactivated. With the mind, we cannot predict what
                will happen next in this matter.

He continued:

            Q. What have you observed about some of the reasons that
               children don’t report child sexual abuse immediately?

                ....

            A. Children who do not report the sexual abuse are under
               the impression it’s what they’re supposed to do. They do
               not have any avenues, don’t have the skills to complain
               about things because of development and age. The
               developmental age of a child –- the younger the age, the
               child is unaware of something between right and wrong.
               A child is unaware of what is allowed and wrong.
               Spanking, normal. When does spanking become abuse
               and when does touching, changing diapers by a
               caregiver, turn into some form of improper handling of
               the genitals, because when you change diapers you . . .
               clean the diaper, you clean the genitals.
                  And so a child does not have the mental apparatus,
               and then in certain families, a child is told to say no and

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                     Opinion of the Court



   run, but in some families it may be a factor of childhood
   training when you should say no to some improper
   physical contact. So physical contact, the child is
   oblivious of what to say or whether there should be
   something said, or whether something wrong happened.
   If it’s something the child fails to report, it’s a common
   event, because of the child’s development. If it happens
   to a grownup, that’s a different matter. If it happens to
   a trained child, it’s a different matter. If it happens to a
   child who shows symptoms, somebody walks into it, the
   child may still think it was okay, why is mom so upset?
      I had a case, an eleven-year-old girl, with uncle
   having performed improper sexual advances. It turned
   out that she still felt psychologically guilty, responsible,
   terrible, for having sexual contact with this uncle,
   family friend, and presently they’re dealing with that
   case.

Q. What are some of the other reasons you’ve observed why
   children don’t report when things like that happen, if
   they’re old enough to understand that it’s wrong?

    ....

A. The other reasons where children who are
   understanding to report, it depends on the perpetrator
   and the person, the child, the victim. And that may be
   bribing or giving gifts, what the child wants to do,
   giving permission to be out late. A child, a teenager,
   usually it’s a girl, but really sometimes boys are also
   sexually abused, and this abuse is not verbalized by
   these individuals because of shock, disbelief, or they’re
   just understanding that this is a way of expressing love.
   The threat of killing the mom, killing the whole family,
   say this and it will be really bad, you’ll never see your
   mom again.
      These are some of the reasons why teenaged girls,
   for example, or older child, seven to eleven years,
   arbitrarily will think I’m not supposed to talk to mom,
   mom will be upset, and sometimes they try to talk and
   mom says you are a liar. Sometimes they talk to a


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                                   Opinion of the Court



                primary care giver, which you only have two, your mom
                and your dad, nobody else, stepfather, boyfriend, mom,
                stepfather, foster families. I work with these families,
                victims coming from these families. There’s nobody to
                listen to [sic]. Who are you going to turn to if your family
                does not help? It’s like if you go to the police and the
                police do not help. It’s a problem. Who are you going to
                talk to? So the child does not have ways; that’s the
                reason they don’t talk. If they talk and they’re
                discredited, their credibility is undermined.

Ms. Chrysler testified:

             Q. What about reporting that abuse? What is your
                observation and your experience with whether abuse
                victims tend to report right away, and is there any
                difference between children and adults in that?

                ....

             A. There’s extensive documentation, research, also in my
                experience, that sexual abuse is not typically reported
                right away for a lot of different reasons, being afraid
                that no one will believe them, being fearful of the
                repercussions after they’ve told on the person that’s
                perpetrated the crime on them. In fact, I read recently
                that it’s one-third of all sexually abused children in
                cases, only one-third of incidents were reported, which
                means that two-thirds of these children out there never
                feel comfortable, never feel safe enough to share what’s
                happened to them. And so for a lot of reasons, –- should
                I keep going? It’s for a lot of reasons that they don’t tell.
                The primary reason is the one I just mentioned earlier
                about the classic signs of someone who’s been abused
                are, feeling as though the world is a dangerous place,
                that no one is going to believe them, the guilt and the
                shame that’s been instilled in them for the length of
                time that they’ve been sexually victimized. Children
                oftentimes go through a grooming period with their
                perpetrator, will groom them to keep a secret, and not
                sharing the secret, and the consequences of the secret.
                And any kind of resistance that the child gives them is

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                     Opinion of the Court



   met with coercion or met with threats about their own
   safety, about the safety of their own family members. A
   lot of them are taught to keep the secret at all costs. And
   for children, it’s fairly simple: they believe what adults
   tell them, especially the younger than six-year-olds,
   kids that I’ve seen, they’re going to believe what’s told
   them. Nobody’s going to believe you if you say that;
   that’s something that they will believe.

Q. What about teenagers?

    ....

A. Teenagers as well. I don’t remember what the exact
   statistics are, but generally it’s over a year. I think it
   was something like seventy-eight percent of people tell
   --

    ....

   Typically children are going to be telling right away.
   Teenagers was the question; teenagers as well are
   conditioned by a perpetrator not to feel comfortable
   talking about what’s happened to them. They’re a little
   bit more difficult to predict, I think. They will, I think
   for teenagers in my experience and education,
   eventually come forward. Like I said, one-third of
   sexually victimized children and adolescents come
   forward.

    ....

   Basically what I’m trying to say is it just depends, and
   typically they don’t come forward at all.

    ....

Q. What are some of the reasons, in your experience, that
   people do not come forward?

    ....


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                                  Opinion of the Court




             A. Typically children and adolescents don’t come forward
                for very many different reasons. One of the most
                common, though, is the guilt and the shame that they
                feel. That’s the primary reason why a lot of them come
                to therapy, because they’re taught to believe that this is
                their fault. A lot of them have been groomed,
                conditioned by the sexual perpetrator, that they are not
                allowed, can’t come forward because of a lot of different
                reasons. But the main reason is fear.

Again, like the testimony regarding general characteristics of child sexual abuse

victims, the experts here drew inferences and gave opinions explaining that these

other unnamed patients of theirs had been abuse victims and delayed reporting the

abuse for various reasons. These views presuppose (i.e., opine) that the other children

the expert witnesses observed had actually been abused. These are not factual

observations; they are expert opinions.


      The State would have us limit the definition of discoverable “opinion” to that

which reaches an ultimate issue: Was the victim sexually assaulted or does she

exhibit the “profile” or characteristics of someone who has been sexually assaulted?

This definition is far narrower than contemplated by our evidence rules and discovery

statutes. As noted above, an expert can, and did here, offer opinions about typical

characteristics of child sexual abuse victims.


      Early in the trial, after voir dire of Dr. Shukla, the trial court ruled that

proposed testimony “about the general characteristics of child sexual abuse and

delayed reporting” “should have been given to defendant [in discovery]” and that the

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                                   Opinion of the Court



witnesses should not offer such opinions. In response to the trial court’s ruling, the

State framed the questions as “observations.” As shown below, it took the State three

attempts to phrase such a question in a manner that the trial court would allow:

             Q. Dr. Shukla, what are some of the reasons that children
                don’t report sexual abuse immediately?

                      [DEFENSE COUNSEL]: Objection. Same basis.

                      THE COURT: Sustained.

             Q. In your experience, --

                      [DEFENSE COUNSEL]: Objection. Same basis.

                      THE COURT: Sustained.

             Q. What have you observed about some of the reasons that
                children don’t report sexual abuse immediately?

                      [DEFENSE COUNSEL]: Objection. Same basis.

                      THE COURT: Overruled.

The trial court overruled defendant’s final objection to that line of questioning and

permitted that testimony to proceed. We conclude that, regardless of phrasing, the

questions posed by the State and Dr. Shukla’s answers to these questions elicited

opinions based on his expertise.


      Later during the testimony of Dr. Shukla, after a number of such questions,

the trial court appears to have ultimately found that the curriculum vitae of each

witness was sufficient to satisfy the discovery statute:

             Please let the record show, in the absence of the jury,

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                                    STATE V. DAVIS

                                   Opinion of the Court



             relative to Dr. Shukla’s testimony, the Court finds that he
             was accepted without objection as an expert in the field of
             child, adolescent and adult psychiatry, and was the
             treating psychiatrist of [G.S.] in 2006, that Dr. Shukla has
             treated perhaps a thousand child patients that either were
             or reported that they were victims of sex abuse, that at
             least approximately thirty days ago the State provided
             discovery, including Dr. Shukla’s medical records, relating
             to the complainant in this case, and that pursuant to 15A-
             903, the State provided, in the Court’s opinion, adequate
             notice to the Defendant of its intent to offer Dr. Shukla’s
             testimony as an expert by providing his extensive resume
             or curriculum vitae, I think is the language of the statute.
                 Therefore, the Court concludes that the Defendant was
             not surprised within the meaning of the case law in North
             Carolina, and that the expert testimony of Dr. Shukla is
             clearly helpful in instructing to the jury, outweighing any
             potential for prejudice in that regard to the Defendant.

The Court of Appeals concluded that Dr. Shukla did not testify to “a specific

constellation of characteristics of sexual abuse victims, did not opine on whether G.S.

met such a profile, and did not offer an expert opinion of the type that was required

to be disclosed [in discovery].” Davis, ___ N.C. App. at ___, 768 S.E.2d at 908. The

Court of Appeals reached similar conclusions regarding Ms. Chrysler’s testimony,

finally holding that “neither [witness] offered an expert opinion that there exists a

‘profile’ ” with which G.S.’s characteristics were consistent. Id. at ___, 768 S.E.2d at

908.


       In essentially agreeing with the State that these witnesses’ opinions need not

have been disclosed in discovery unless they included an opinion that G.S. exhibited

characteristics consistent with a “profile” of a child abuse victim, the Court of Appeals


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                                   STATE V. DAVIS

                                  Opinion of the Court



erred. Id. at ___, 768 S.E.2d at 908. We do not agree that an “opinion” is so narrowly

defined. Instead, we hold that the testimony at issue did include expert opinions that

should have been disclosed previously. Accordingly, we hold that the State failed to

comply with N.C.G.S. § 15A-903(a)(2) when responding to defendant’s motion for

discovery by failing to turn over all the information required by that statute.


      Moreover, we conclude that the curricula vitae were not sufficient to prevent

“unfair surprise.” See Payne, 327 N.C. at 202, 394 S.E.2d at 162. The curricula vitae

and medical records made it clear to defendant that each witness was going to testify

as an expert about his or her own treatment of the victim G.S. (and presumably, the

allegations of abuse she reported to them), but there was nothing to alert defendant

that the witnesses would give opinions about child sexual abuse victims in general

and no preview of what those opinions would be. Had such information been turned

over in discovery, defendant would have been able to prepare a possible defense or

counterpoint to the expert opinion testimony offered by the State.


      Having found error in our de novo review, we now must determine if the error

was prejudicial to defendant. Because this was a statutory error, we apply the

standard found in N.C.G.S. § 15A-1443(a) (2015):

             A defendant is prejudiced by errors relating to rights
             arising other than under the Constitution of the United
             States when there is a reasonable possibility that, had the
             error in question not been committed, a different result
             would have been reached at the trial out of which the
             appeal arises. The burden of showing such prejudice under

                                         -19-
                                      STATE V. DAVIS

                                     Opinion of the Court



              this subsection is upon the defendant. Prejudice also exists
              in any instance in which it is deemed to exist as a matter
              of law or error is deemed reversible per se.

After careful consideration of all the evidence here, we hold that defendant did not

meet his burden of showing a reasonable possibility that, absent the expert opinion

testimony, the jury would have reached a different result. First, the expert opinion

testimony was elicited specifically in relation to G.S.’s reporting, symptoms, and care;

L.W. was not the focus of the expert testimony. Second, as to G.S., although the main

issue in this case was her credibility, and the expert opinion testimony could factor

into a credibility determination, the record reveals overwhelming evidence

corroborating her testimony.6 During her testimony, G.S. reported being sexually

abused by defendant when she was between the ages of three-and-a-half and thirteen.

She testified that she was forced to perform oral sex on defendant, and that she had

memories of him being in the bath with her as a young girl and touching her

inappropriately and forcing her to touch his penis, and of him performing oral sex on

her. She also testified that defendant vaginally raped her when she was twelve years

old. She testified that she first told her then-boyfriend (now husband) about these

events when she was sixteen. She further testified that she told Dr. Shukla about

what happened when she was admitted to the hospital for suicidal thoughts in 2006


       6 To the extent that the expert opinion testimony related to the charges involving L.W.
as well, defendant failed to meet his burden of showing prejudice under N.C.G.S. § 15A-
1443(a) in these convictions as well. In light of the corroborating evidence, we do not see a
reasonable possibility that the jury would have reached a different result regarding the
alleged abuse of L.W.

                                            -20-
                                        STATE V. DAVIS

                                       Opinion of the Court



and that she reported the abuse to Ms. Chrysler when she started seeing her for

counseling in 2013.


      All of this testimony was corroborated in several ways. First, G.S.’s testimony

matched the statement she gave to the police when she first reported the abuse in

October 2011. Second, she consistently reported abuse by defendant to Dr. Shukla,

her pastor, her husband, and Ms. Chrysler. Third, and importantly, the testimony of

L.W., the testimony of the other two Rule 404(b) witnesses, and the testimony of the

pastor painted similar pictures of defendant’s practice of sexually abusing young girls

with whom he had established a trusting relationship. A.J.,7 one of the Rule 404(b)

witnesses, testified that defendant, who was like a grandfather to her, talked to her

about sex when she was thirteen years old and instructed her on how to perform

certain sex acts. S.W., a second Rule 404(b) witness, testified that defendant was the

youth director at her church when she was a teenager and that defendant would

initiate sexual conversations and ask her about her sexual interactions with her

boyfriend. S.W.’s testimony was corroborated by a friend to whom she had talked

about some of defendant’s behavior at the time it was happening, by her uncle to

whom she had also spoken, and by the pastor at the church. The pastor testified that

defendant was banned from church property because of a “gathering of things,”

including the allegations made by S.W.



      7   Again, we use initials to protect the identity of the victims. N.C. R. App. P. 4(e).

                                               -21-
                                   STATE V. DAVIS

                                  Opinion of the Court



      Given all the above evidence, we conclude that defendant has failed to show

that, absent the expert opinion testimony (as to the generalized characteristics of

child sexual abuse victims and reasons for delayed reporting), there is a reasonable

possibility that the jury would have reached a different result. We are mindful,

though, of the wise words of the Court of Appeals in State v. Moncree: “Although we

determine defendant was not prejudiced, we note the State should comply with

statutory discovery requirements. District attorneys are elected public officials, and

therefore North Carolina citizens trust the people who serve as district attorneys.”

188 N.C. App. 221, 227, 655 S.E.2d 464, 468 (2008).


      Accordingly, for the reasons stated above the decision of the Court of Appeals

upholding defendant’s convictions is modified and affirmed. The remaining issues

addressed by the Court of Appeals are not before this Court and its decision as to

those matters remains undisturbed.


      MODIFIED AND AFFIRMED.




                                         -22-
