              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-214

                               Filed: 3 November 2015

Wake County, No. 12 CRS 224667, 13 CRS 9780

STATE OF NORTH CAROLINA,

             v.

RODERICK DEAN HARRIS, Defendant.


      Appeal by defendant from Judgment and Orders entered 13 August 2014 by

Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of

Appeals 24 August 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force,
      for the State.

      Appellate Defender Staples S. Hughes, by Assistant Appellate Defender
      Barbara S. Blackman, for defendant.


      ELMORE, Judge.


      Roderick Dean Harris (defendant) appeals from a judgment of conviction for

sexual offense with a child in violation of N.C. Gen. Stat. § 14-27.4A(a), and from

accompanying orders requiring him to register as a sex offender and enroll in

satellite-based monitoring (SBM) for life. On appeal, defendant principally argues

that the trial court committed plain error by instructing the jury on section 14-

27.4A(a) because he was indicted for violating a separate statute, section 14-

27.4(a)(1). Therefore, defendant claims, the judgment of his conviction for section 14-
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                                        Opinion of the Court



27.4A(a) was improperly entered against him. Because we are bound by this Court’s

decision in State v. Hicks, ____, N.C. App. ____, 768 S.E.2d 373 (Feb. 17, 2015) (No.

COA14-57), we vacate the judgment and remand for entry of judgment and

resentencing on the charge of first-degree sexual offense in violation of section 14-

27.4(a)(1). We find no other error.


                                         I. Background

      This case arises out of defendant’s alleged sexual abuse of his step-daughter,

Kathy.1 After Kathy’s parents separated, defendant became romantically involved

with Kathy’s mother. He moved in with the family and married Kathy’s mother

several years later. The family moved around frequently, and Kathy’s mother and

defendant fought, separated, and reconciled a number of times.

      Defendant began sexually abusing Kathy just after her tenth birthday. The

first instance of sexual misconduct occurred when the family lived in Raleigh.

Defendant came into Kathy’s room and “wrestled” with her while they were alone.

As Kathy was lying on her bed, defendant got on top of her and touched her vaginal

area outside of her clothes, toying with her using his finger. The touching occurred

multiple times while they lived there. On later occasions, defendant touched Kathy

under her shorts but outside of her underwear.




      1   Kathy is a pseudonym used to protect the identity of the minor.

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      When the family moved into a larger house in Louisburg, Kathy had her own

room and the sexual misconduct happened more often. On more than one occasion,

defendant touched Kathy under her underwear, putting his finger inside her vagina,

and also touched her breasts. The touching continued after the family moved to

Knightdale. When Kathy was in seventh grade, defendant continued to touch her

vaginal area and her breasts but did not put his finger inside her vagina.

      In October 2012, Kathy reported defendant’s misconduct to Jan Gibson, a

school guidance counselor. Gibson, in turn, filed a report with Child Protective

Services (CPS). Kim Franklin, an investigator with CPS, was assigned to the case

and interviewed Kathy. Kathy was also interviewed and examined by Holly Warner

at the SAFEchild Advocacy Center, a nonprofit organization that provides medical

evaluations for children who are suspected to be victims of child abuse or neglect.

      Following the examination at SAFEchild, Kathy was treated by Alison Burke,

a therapist who specializes in working with children who have been sexually abused.

Burke performed an assessment and used trauma-focused cognitive behavioral

therapy (TFCBT) to help treat Kathy. During treatment, Kathy talked about the

sexual misconduct, how she felt, and wrote a “trauma narrative” describing what had

happened.

      The first of three warrants for defendant’s arrest was issued on 30 October

2012 in Wake County. Defendant was interviewed by Kim Franklin and Knightdale



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Police that same day. The Wake County Grand Jury returned two separate bills of

indictment: one on 26 November 2012, charging defendant with one count of sexual

offense with a child and two counts of indecent liberties with a child; and another on

25 February 2013, charging defendant with one count of first-degree sexual offense

and one count of indecent liberties with a child. On 30 September 2013, the Franklin

County Grand Jury also returned a bill of indictment against defendant, charging

him with first-degree sexual offense in violation of N.C. Gen. Stat. § 14-27.4(a)(1).2

        The case out of Franklin County was then transferred to Wake County by

agreement, and the three cases were joined and tried before a jury on 11 August 2014

in Wake County Superior Court. The court dismissed the two sex offense charges

from Wake County at the close of the evidence. The only remaining charges left to be

submitted to the jury, therefore, were the sex offense arising out of Franklin County

and the three indecent liberty offenses. The jury found defendant guilty of one count

of sexual offense with a child in violation of section 14-27.4A(a) and two counts of

indecent liberties with a child. The court arrested judgment on the third count of

indecent liberties with a child.


2 The caption on the left side of the indictment lists “14-27.4(a)(1)” as the “Offense in Violation,” and
on the right side the indictment reads, “INDICTMENT FIRST DEGREE STATUTORY SEXUAL
OFFENSE (FEMALE OR MALE CHILD UNDER 13) (1116).” The text in the body of the indictment
alleges the following:

                The jurors for the State upon their oath present that on or about the
                date(s) of offense shown and in the county named above the defendant
                named above unlawfully, willfully and feloniously did engage in a sex
                offense with [Kathy], a child under the age of 13 years.

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      Based on his prior record level IV, defendant was sentenced to a minimum of

365 and a maximum of 447 months for his conviction under section 14-27.4A(a). The

two indecent liberties offenses were consolidated for sentencing, and the court

sentenced defendant to a minimum of 24 and maximum of 29 months, set to begin at

the expiration of the first sentence. The court also ordered defendant to register as a

sex offender and enroll in SBM for life upon release from imprisonment.

      Defendant gave oral notice of appeal in open court. He also filed a petition for

writ of certiorari to this Court, since the sex offender registration and SBM are civil

in nature and thus require written notice of appeal. N.C.R. App. P. 3(a) (2013); Hicks,

____ N.C. App. at ____, 768 S.E.2d at 375–76; State v. White, 162 N.C. App. 183, 190–

98, 590 S.E.2d 448, 453–58 (2004). In our discretion, we allow defendant’s petition

and review the merits of his appeal.

                                       II. Analysis

A. Standard of Review

      We note at the outset that defendant failed to preserve at trial any of the issues

he raises on appeal. See N.C.R. App. P. 10(a)(1) (2013) (“In order to preserve an issue

for appellate review, a party must have presented to the trial court a timely request,

objection, or motion, stating the specific grounds for the ruling the party desired the

court to make if the specific grounds were not apparent from the context.”).




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      Nevertheless, defendant contends that the alleged instructional and

evidentiary errors committed by the trial court amount to plain error. See N.C.R.

App. P. 10(a)(4) (“In criminal cases, an issue that was not preserved by objection noted

at trial and that is not deemed preserved by rule or law without any such action

nevertheless may be made the basis of an issue presented on appeal when the judicial

action questioned is specifically and distinctly contended to amount to plain error.”);

State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (“[P]lain error review

in North Carolina is normally limited to instructional and evidentiary error.”) (citing

State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39–40 (2002), cert. denied, 537 U.S.

1117, 154 L. Ed. 2d 795 (2003)).

      We review for plain error those issues now before us on appeal.

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial.
             See Odom, 307 N.C. at 660, 300 S.E.2d at 378. 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.” See id. (citations and quotation
             marks omitted); see also Walker, 316 N.C. at 39, 340 S.E.2d
             at 83 (stating “that absent the error the jury probably
             would have reached a different verdict” and concluding
             that although the evidentiary error affected a fundamental
             right, viewed in light of the entire record, the error was not
             plain error). Moreover, because plain error is to be “applied
             cautiously and only in the exceptional case,” Odom, 307
             N.C. at 660, 300 S.E.2d at 378, the error will often be one
             that “seriously affect[s] the fairness, integrity or public
             reputation of judicial proceedings,” Odom, 307 N.C. at 660,
             300 S.E.2d at 378 (quoting McCaskill, 676 F.2d at 1002).


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

B. The Indictment and Charge to the Jury

      First, defendant argues that his conviction of sexual offense with a child and

accompanying sentence was improperly entered against him. Specifically, defendant

contends that the trial court committed plain error by instructing the jury on “sexual

offense with a child; adult offender” in violation of N.C. Gen. Stat. § 14-27.4A(a) where

the indictment charged defendant pursuant to N.C. Gen. Stat. § 14-27.4(a)(1), “first-

degree sexual offense.”

      “A valid bill of indictment is essential to the jurisdiction of the Superior Court

to try an accused for a felony and have the jury determine his guilt or innocence, ‘and

to give authority to the court to render a valid judgment.’ ” State v. Moses, 154 N.C.

App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray, 274 N.C. 556, 562,

164 S.E.2d 457, 461 (1968)). An indictment or other criminal pleading must contain

the following:

             A plain and concise factual statement in each count which,
             without allegations of an evidentiary nature, assert facts
             supporting every element of a criminal offense and the
             defendant’s commission thereof with sufficient precision
             clearly to apprise the defendant or defendants of the
             conduct which is the subject of the accusation.

N.C. Gen. Stat. § 15A-924(a)(5) (2013). “A defendant may not be lawfully convicted

of an offense which is not charged in an indictment; if a defendant is found guilty of



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an offense for which he has not been charged, judgment thereon is properly arrested.”

Moses, 154 N.C. App. at 334, 572 S.E.2d at 226.

      N.C. Gen. Stat. § 14-27.4(a)(1) (2013), titled, “First-degree sexual offense,”

provides in pertinent part as follows:

             (a) A person is guilty of a sexual offense in the first degree
             if the person engages in a sexual act:

                    (1) With a victim who is a child under the age of 13
                    years and the defendant is at least 12 years old and
                    is at least four years older than the victim;

             ....

      N.C. Gen. Stat. § 14-27.4A(a) (2013), titled, “Sexual offense with a child; adult

offender,” provides in pertinent part as follows:

             (a) A person is guilty of sexual offense with a child if the
             person is at least 18 years of age and engages in a sexual
             act with a victim who is a child under the age of 13 years.

      N.C. Gen. Stat. § 14-27.4(a)(1) is a lesser included offense of section 14-

27.4A(a). N.C. Gen. Stat. § 14-27.4A(d) (2013). Both statutes require the State to

prove that the defendant engaged in a sexual act with a victim who was a child under

the age of thirteen. The difference between the two statutes concerns the defendant’s

age: section 14-27.4(a)(1) requires the State to prove that the defendant was at least

twelve years old and at least four years older than the victim, whereas section 14-

27.4A(a) requires the State to prove that the defendant was at least eighteen years

old. See Hicks, ____ N.C. App. at ____, 768 S.E.2d at 379 (explaining the difference


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between section 14-27.4(a)(1) and section 14-27.4A(a)); see also id. at ____, 768 S.E.2d

at 381 (urging the North Carolina General Assembly “to consider reorganizing,

renaming, and renumbering the various sexual offenses to make them more easily

distinguishable from one another”); 2015 N.C. Sess. Laws 2015-181 (H.B. 383). In

addition, while each offense is punishable as a Class B1 felony, a conviction under

§ 14-27.4A(a) carries an active punishment of no less than 300 months’ imprisonment.

N.C. Gen. Stat. §§ 14-27.4(b), 14-27.4A(b) (2013).

      In support of his argument, defendant relies almost exclusively on this Court’s

decision in State v. Hicks. In Hicks, the defendant was indicted for violating N.C.

Gen. Stat. § 14-27.4(a)(1). Hicks ____ N.C. App. at ____, 768 S.E.2d at 379. The trial

court, however, instructed the jury on section 14-27.4A(a), the crime for which the

defendant was ultimately convicted. Id. at ____, ____, 768 S.E.2d at 374, 379. This

Court explained, “In essence, the trial court submitted to the jury an additional

element that the State was not required to prove: that defendant was at least 18, an

adult, at the time he committed the offense.” Id. at ____, 768 S.E.2d at 379. Because

the indictment did not allege that the defendant was at least eighteen years old, an

essential element of section 14-27.4A(a), this Court vacated the judgment and

remanded for sentencing and entry of judgment of conviction of section 14-27.4(a)(1),

the lesser-included offense. Id. at ____, 768 S.E.2d at 379–81 (citing State v. Williams,

318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986); State v. Bullock, 154 N.C. App. 234,



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245, 574 S.E.2d 17, 24 (2002)); see also State v. Jones, 317 N.C. 487, 495, 346 S.E.2d

657, 661 (1986) (vacating judgment of conviction for first-degree rape and remanding

for entry of judgment of conviction for second-degree rape and resentencing because

“[i]n finding the defendant guilty of first-degree rape, the jury necessarily found the

existence of all the necessary elements of second-degree rape, a lesser-included

offense”); State v. Miller, 137 N.C. App. 450, 458–59, 528 S.E.2d 626, 631 (2000)

(“[O]ur Supreme Court has held it to be a basic violation of due process, amounting

to plain error, where a jury is instructed as to an offense which is not charged in the

bill of indictment.” (citation omitted)).

        Despite the State’s position to the contrary, we are unable to distinguish the

present case from Hicks. We are bound by Hicks and apply it here.3 In re Appeal

from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 324

N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has

decided the same issue, albeit in a different case, a subsequent panel of the same

court is bound by that precedent, unless it has been overturned by a higher court.”).

Accordingly, the judgment entered on defendant’s conviction under section 14-



        3 While it may be implicit in the decision, Hicks does not explicitly address whether the text of
the short-form indictment is sufficient in law under N.C. Gen. Stat. § 15-144.2(b) (2013) to sustain a
conviction under either section 14-27.4A(a) or section 14-27.4(a)(1). We do note, however, that our
Supreme Court has previously alluded to this issue. See State v. Jones, 317 N.C. 487, 492, 346 S.E.2d
657, 660 (1986) (“[W]hether the fundamental concerns expressed in Sills are protected when the
caption of a short-form indictment specifies an offense less serious than the maximum offense
supported by the indictment and the defendant is nevertheless ultimately convicted of the maximum
offense is a question not heretofore addressed by this Court.”).

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27.4A(a) is vacated. We remand for entry of judgment of conviction for the lesser-

included offense, section 14-27.4(a)(1), and appropriate resentencing.

C. The School Counselor’s Testimony

      Second, defendant argues that the trial court committed plain error by

allowing Jan Gibson’s testimony which, according to defendant, implied that DSS had

substantiated Kathy’s claim that defendant sexually abused her.

       “[A] witness may not vouch for the credibility of a victim.” State v. Giddens,

199 N.C. App. 115, 121, 681 S.E.2d 504, 508 (2009) (citations omitted), aff’d per

curiam, 363 N.C. 826, 689 S.E.2d 858 (2010); see also N.C. Gen. Stat. § 8C-1, Rules

608(a), 701–03 (2013). In Giddens, this Court concluded that it was plain error for a

DSS investigator to testify that DSS had “substantiated” the defendant as the

perpetrator and believed the abuse did occur based on the evidence DSS had gathered

where, absent the testimony, “the jury would have been left with only the children’s

testimony and the evidence corroborating their testimony.” Giddens, 199 N.C. App.

at 119–23, 681 S.E.2d at 507–09; see also State v. Couser, 163 N.C. App. 727, 731, 594

S.E.2d 420, 423 (2004) (“Thus, the central issue to be decided by the jury was the

credibility of the victim.”). In contrast, even where testimony that sexual abuse had

occurred was improperly admitted, we have found that the error did not rise to plain

error where the evidence against the defendant amounted to something more than

just the victim’s testimony and corroborating evidence. State v. Sprouse, 217 N.C.



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App. 230, 242, 719 S.E.2d 234, 243 (2011) (finding no plain error because “[u]nlike

Giddens, absent the challenged testimony, the present case involved more evidence

of guilt against the defendant than simply the testimony of the child victim and the

corroborating witnesses”); State v. Stancil, 146 N.C. App. 234, 240, 552 S.E.2d 212,

216 (2001) (finding no plain error where the jury had before it evidence of victim’s

symptoms and two experts’ conclusions that victim’s actions and statements were

consistent with abuse), modified and aff’d, 355 N.C. 266, 267, 559 S.E.2d 788, 789

(2002).

      In the present case, even assuming arguendo that Gibson’s testimony was

improper, our review of the record on appeal leads us to conclude that it was not

received in plain error. Gibson testified on direct examination that she reported

Kathy’s allegations to DSS, as mandated by law. Gibson then testified as follows:

            Q. Have you had occasion in the past to make reports to the
            Department of Social Services?

            A. Many times.

            Q. And to your knowledge, are they required to follow up
            on all the calls that are made?

            A. They are not. They decide at the intake unit if that is a
            substantiated report, if they can substantiate it or not; and
            if they do, then they follow up on it.

            Q. And with respect at least to the allegations of stepfather
            and child, did you believe that someone would follow up
            with [Kathy]?



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            A. Yes, they told me they would.

            Q. Okay.

            A. And I received a letter to that effect.

            ....

            Q. Okay. And you said at some point later, you found out
            that CPS had investigated the case?

            A. Yes, they sent me a letter saying that—

                   MR. KELLY: Objection.

            Q. Let me make sure.

                   THE COURT: Sustained. Go ahead.

            Q. They followed up with you that they had done an
            investigation?

            A. Yes, I received a letter saying—

                   MR. KELLY: Objection.

                   THE COURT: Sustained.

Although Gibson is not employed by DSS and did not testify directly as to the

conclusion reached by DSS investigators, defendant insists that we apply Giddens to

these facts. Unlike Giddens, however, where the sole issue to be decided was the

victims’ credibility, here the evidence against defendant did not solely consist of

Kathy’s allegations and corroborative testimony.         The jury heard audio from

defendant’s interview with DSS and Knightdale Police, in which he admitted that he



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had been touching Kathy and that “it turned corrupt.”         In the same interview,

defendant told a Knightdale police detective that he had become “aroused by the

stimulation.” Defendant also said, “We played a lot. You know, and . . . I just don’t

know how it could turn like this—how I could turn like this.” Furthermore, the jury

heard audio from a phone call made by defendant to his wife, Kathy’s mother, from

jail. As he was crying, defendant told her that he was sorry for what he had done and

he would “accept the consequences.”

      In   light of defendant’s incriminating statements and the evidence

corroborating Kathy’s allegations, we conclude that Gibson’s testimony was not

received in plain error. Even if we accept the premise that Gibson’s testimony was

erroneous, defendant has failed to show that, absent the error, the jury probably

would have reached a different verdict.

D. Expert Testimony From Child’s Therapist

      Third, defendant argues that the trial court committed plain error by

admitting Allison Burke’s testimony regarding Kathy’s placement in TFCBT and the

therapy process in general. Defendant claims that this portion of Burke’s testimony

constituted impermissible vouching for Kathy’s credibility.

       “Expert opinion testimony is not admissible to establish the credibility of the

victim as a witness.” State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598 (2002)

(citing State v. Kim, 318 N.C. 614, 350 S.E.2d 347 (1986)), aff’d per curiam, 356 N.C.



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428, 571 S.E.2d 584 (2002). “In a sexual offense prosecution involving a child victim,

the trial court should not admit expert opinion that sexual abuse has in fact occurred

because, absent physical evidence supporting a diagnosis of sexual abuse, such

testimony is an impermissible opinion regarding the victim’s credibility.” State v.

Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788, 789 (2002) (citations omitted).

“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.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d 651, 655 (1988). “[A]n

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.” Stancil, 355 N.C. at 267, 559 S.E.2d at 789

(citations omitted); see also State v. Hall, 330 N.C. 808, 821, 412 S.E.2d 883, 890

(1992) (concluding that evidence of PTSD should not be admitted substantively to

prove that a rape has in fact occurred, but allowing such evidence for certain

corroborative purposes). “The fact that this evidence may support the credibility of

the victim does not alone render it inadmissible.” State v. Kennedy, 320 N.C. 20, 32,

357 S.E.2d 359, 367 (1987).

      Defendant maintains that Burke’s testimony amounted to an expert opinion

that Kathy was credible and that defendant was guilty as charged, but fails to point



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to any portion of Burke’s testimony where she opined that Kathy was sexually abused

by defendant or stated that sexual abuse did in fact occur. Burke explained how

TFCBT is used to help treat victims in cases of sexual abuse and described

therapeutic techniques that she employs in her treatment. She testified that Kathy

had symptoms consistent with trauma, and explained the purpose and process of

writing a “trauma narrative.” Her explanation laid the foundation for the State to

introduce Kathy’s “trauma narrative,” which included Kathy’s written statement

about what happened to her. The narrative itself was introduced solely for the

purpose of corroborating Kathy’s testimony. The mere fact that Burke’s testimony

supports Kathy’s credibility does not render it inadmissible. Accordingly, we find no

error—and certainly no plain error—in the trial court’s receipt of Burke’s testimony.

E. Expert Testimony From Nurse Practitioner

      Finally, defendant argues that the trial court committed plain error by

permitting Holly Warner to testify that she recommended Kathy for therapy despite

finding no physical evidence of abuse, and that she referred to Kathy’s mother as the

“non-offending” caregiver. Warner’s testimony, defendant argues, “impermissibly

bolstered Kathy’s credibility and constituted opinion evidence as to guilt.”

      Defendant relies principally on State v. Towe, 366 N.C. 56, 62, 732 S.E.2d 564,

568 (2012), in support of his argument. In Towe, an expert testified at trial that

“approximately 70 to 75 percent of children who have been sexually abused have no



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abnormal findings, meaning that the exams are either completely normal or [sic] very

non-specific findings, such as redness.” Id. at 60, 732 S.E.2d at 566. The expert went

on to testify that she would place the victim in that category of children who had been

sexually abused but showed no physical symptoms of abuse. Id. Our Supreme Court

concluded that the expert’s testimony was received in plain error:

             In the absence of physical evidence of sexual abuse in this
             case, the only bases for [the expert’s] conclusory assertion
             that the victim had been sexually abused were the victim’s
             history as relayed to [the expert] by the victim’s mother
             and the victim’s statements to [the social worker] that were
             observed by [the expert]—evidence that, standing alone, is
             insufficient to support an expert opinion that a child was
             sexually abused.

Id. at 62, 732 S.E.2d at 568.

      The facts in Towe are easily distinguishable from those in the present case.

Most notably, while Warner testified that she recommended Kathy be referred for

therapy, Warner never asserted that Kathy had been sexually abused or explicitly

commented on Kathy’s credibility.      Rather, the challenged portion of Warner’s

testimony was nothing more than a recitation of facts as to what she did at the

conclusion of her examination and was within “the permissible range of expert

testimony in child sexual abuse cases.” Towe, 366 N.C. at 64, 732 S.E.2d at 569. In

addition, Warner explained that the Center uses the term “non-offending caregiver”

in reference to the person with whom the child will be going home, and that “any

parent or caregiver who is suspected of being an offending caregiver is not allowed in


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the center.” Warner never testified that defendant was an “offending caregiver” and

even if she had, her testimony makes clear that the term does not mean that

defendant is guilty. Accordingly, we find no error or plain error in the trial court’s

admission of Warner’s testimony.

                                    III. Conclusion

      In accordance with Hicks, ____ N.C. App. at ____, 768 S.E.2d at 379–81, we

vacate the judgment of defendant’s conviction for sexual offense with a child in

violation of N.C. Gen. Stat. § 14-27.4A(a). The case is remanded for entry of judgment

of conviction for first-degree sexual offense in violation of section 14-27.4(a)(1) and for

appropriate resentencing.

      NO ERROR in part; VACATED AND REMANDED in part; NEW

SENTENCING.

      Chief Judge McGEE and Judge DAVIS concur.




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