                                     NO. COA14-402

                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 21 October 2014


STATE OF NORTH CAROLINA

       v.                                     Johnston County
                                              No. 11CRS052914
MALIK JAQUEZ WALTON,
     Defendant.


       Appeal by defendant from judgments entered 10 July 2013 and

30 July 2013 by Judge Thomas H. Lock in Superior Court, Johnston

County.      Heard in the Court of Appeals 9 September 2014.


       Attorney General Roy A. Cooper, III, by Special                  Deputy
       Attorney General William V. Conley, for the State.

       Mark Montgomery, for defendant-appellant.


       STROUD, Judge.


       Defendant appeals judgments convicting him of first degree

sexual offense and second degree kidnapping.                 For the following

reasons, we find no error.

                                I.     Background

       The State’s evidence tended to show that in May of 2011,

Stacy1 was in a bedroom with defendant and her fifteen-month old

son.        Defendant   was   the    father   of   Stacy’s   son.    Defendant

1
  A pseudonym will be used to protect the identity of those
involved.
                                           -2-
slapped Stacy and began repeatedly choking her and threatened to

kill her as he held a knife to her neck.                     Defendant then put

both his fingers and his penis in Stacy’s vagina and her anus.

Defendant      was    indicted      for   second    degree   rape,      first   degree

kidnapping,       and   first    degree     sexual    offense.       Defendant      was

tried by a jury, and the jury found him guilty of second degree

kidnapping and first degree sexual offense.                       The trial court

entered judgments accordingly.              Defendant appeals.

                        II.     Medical History Testimony

       Defendant first contends that “the trial court committed

plain error in allowing two medical witnesses to testify that

[Stacy]’s       history       was     consistent      with    sexual       assault.”

(Original in all caps.)              Defendant argues that “Emergency Room

Nurse     Tonia      Nowak    testified      that    [Stacy]’s       injuries      were

consistent with her history. . . . Emergency Room Physician Dr.

Brendan    Berry      testified     that    [Stacy]’s     demeanor,      history    and

examination, was ‘consistent with the sexual assault that she

described.’ . . . This was reversible error.”                     As defendant did

not object to the testimony, he now asks that we review his

contentions for plain error. See State v. Harding, 110 N.C. App.

155,    161,    429     S.E.2d    416,     420   (1993)   (“Due    to    defendant’s
                                      -3-
failure to object at trial, we must review this objection under

the plain error rule.”)

           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
           affects the fairness, integrity or public
           reputation of judicial proceedings.

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

(citations, quotation marks, and brackets omitted). Furthermore,

our Supreme Court has established that “[a] prerequisite to our

engaging in a plain error analysis is the determination that the

instruction complained of constitutes error at all.” State v.

Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, (quotation marks

omitted), cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986).

    Here, both Nurse Nowak and Dr. Berry testified as expert

witnesses.    “An     expert   witness      may    not      testify       as   to   the

credibility of a witness. Nonetheless, an expert witness may

testify,   upon   a   proper   foundation,        as   to    .   .    .   whether     a

particular    complainant       has     symptoms         or      characteristics

consistent therewith.”      State v. Khouri, 214 N.C. App. 389, 401,
                                           -4-
716     S.E.2d      1,   9-10    (2011)     (citations        and   quotation       marks

omitted),      disc. review denied,             365 N.C. 546, 742 S.E.2d 176

(2012).       Here, even by defendant’s own summary in his brief, the

expert    witnesses       testified       that     the    physical       evidence    they

observed was consistent with Stacy’s allegations of abuse; the

witnesses did not state that Stacy’s allegations were credible.

Defendant directs this Court to State v. Frady, but in that case

the testifying witness had not examined the individual alleging

sexual abuse, but here both Dr. Brown and Nurse Nowak examined

Stacy    and     testified       regarding       the   examination;       accordingly,

Frady is not applicable.               See State v. Frady, ___ N.C. App. ___,

___,    747    S.E.2d     164,    167    (“It    is    well   settled      that    expert

opinion testimony is not admissible to establish the credibility

of the victim as a witness.                However, those cases in which the

disputed      testimony     concerns       the    credibility       of    a     witness’s

accusation of a defendant must be distinguished from cases in

which the expert’s testimony relates to a diagnosis based on the

expert’s examination of the witness.                      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
                                           -5-
consistent with those characteristics.                      In order for an expert

medical witness to render an opinion that a child has, in fact,

been    sexually        abused,    the    State       must      establish        a   proper

foundation,         i.e.    physical      evidence      consistent          with     sexual

abuse.”       (citations,     quotation        marks,   and     brackets         omitted)),

disc. review denied, 367 N.C. 273, 752 S.E.2d 465 (2013).                              This

argument is overruled.

                          III. Trial Court’s Instructions

       Defendant      next    contends        that   “the    trial       court    erred   or

committed       plain      error   in    identifying        .   .    .    [Stacy]    as    a

‘victim.’”         (Original in all caps.)           Defendant did not object to

the    jury    instructions,       so    we    review   for      plain     error.         See

Harding, 110 N.C. App. at 161, 429 S.E.2d at 420. This Court has

previously determined that use of the word ‘victim’ by the trial

court is generally not plain error, see State v. Surratt, 218

N.C. App. 308, 309-10, 721 S.E.2d 255, 256, disc. review denied,

365 N.C. 559, 722 S.E.2d 600 (2012).                    We agree that in a case

where there is a jury question as to whether an act is actually

a criminal offense or as to whether the alleged act actually

happened      to    the    complaining     witness,     there       is    technically      a

question of whether there was a “victim.” See State v. Walston,

___ N.C. App. ___, ___, 747 S.E.2d 720, 727 (2013) (“The issue
                                        -6-
of whether sexual offenses occurred and whether E.C. and J.C.

were ‘victims’ were issues of fact for the jury to decide.”),

disc.    review    denied,       367   N.C.    290,      753   S.E.2d   666   (2014).

Black’s Law Dictionary defines “victim” as “[a] person harmed by

a crime, tort, or other wrong.”                   Black’s Law Dictionary 1703

(9th ed. 2009).       So use of the word “victim,” both in denotation

and connotation, means that the complaining witness was “harmed

by a crime, tort, or other wrong.”                Id.

       But in this case, defendant did not object to use of the

term    “victim.”      Stacy     testified        that    defendant     choked     her,

threatened to kill her as he held a knife to her neck, and then

inserted both his fingers and penis into her vagina and anus.

In     addition,    the      physical     evidence        of    Stacy’s       injuries

corroborated her testimony. We cannot determine that the jury

might    reasonably       have   reached      a    different      verdict     if   the

reference to “victim” in the jury instructions had not occurred,

so we do not find plain error.                See Lawrence, 365 N.C. at 518,

723 S.E.2d at 334.

                                 IV.    Conclusion

       For the foregoing reasons, we find no error.

       NO ERROR.

       Judges MCGEE and BRYANT concur.
