                   IN THE COURT OF APPEALS OF NORTH CAROLINA

                                            No. COA17-1133

                                           Filed: 19 June 2018

Guilford County, No. 14 CRS 79153

STATE OF NORTH CAROLINA, Plaintiff,

                  v.

NOE ONASIS ORELLANA, Defendant.


        Appeal by defendant from judgment entered 16 June 2017 by Judge John O.

Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 18 April

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Narcisa
        Woods, for the State.

        Meghan Adelle Jones for defendant-appellant.


        ZACHARY, Judge.


        Defendant appeals from the judgment entered upon his conviction of taking

indecent liberties with the minor victim, V.R.1 On appeal, defendant argues that the

trial court erred by allowing witnesses to vouch for V.R.’s credibility and by failing to

receive and address jury questions in the courtroom before the entire jury panel. We

find no error.




        1   To protect her privacy, in this opinion we refer to the alleged victim by her initials.
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                                   Opinion of the Court



                                        Background

      On 8 September 2014, the Guilford County Grand Jury indicted defendant for

one count of taking indecent liberties with a minor. This matter came on for trial at

the 13 July 2017 criminal session of Guilford County Superior Court, the Honorable

John O. Craig, III presiding.    At trial, the State presented evidence tending to

establish the following facts:

      On 21 March 2014, V.R., her mother Ms. Isaacs, and V.R.’s younger sibling

drove from their home in Beaufort, North Carolina to Greensboro, North Carolina to

the home of defendant and V.R.’s maternal grandmother, Mrs. R. They arrived at

the home of Mrs. R. and defendant around 3:00 a.m. Upon their arrival, Mrs. R. was

still awake and defendant was in their bedroom. V.R. asked Mrs. R. if she could sleep

with her, and Mrs. R. agreed. When V.R. went to the bedroom to greet defendant, he

asked her for a hug. V.R., who was fully dressed, climbed in the bed and hugged

defendant. During the hug, V.R. testified that defendant started “patting [her]

bottom, calling [her] his little princess,” and then defendant touched the “inside of

[her] privates” with his fingers. As defendant was touching V.R.’s privates, he asked

her if she “liked it” and she responded, “no, I don’t” and “jumped out of bed.”

      V.R. went to the kitchen and told her grandmother what had happened. Mrs.

R. confronted defendant immediately and he denied that he had touched V.R. in an




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inappropriate manner. Defendant then went to bed, and Mrs. R. slept between V.R.

and defendant.

      The next morning, Mrs. R. informed Ms. Isaacs that “V.R. . . . told [her] that

[defendant] rubbed her bottom.” Ms. Isaacs testified that she did not think Mrs. R.

was telling her the entire story, so she asked V.R. about it when V.R. woke up. V.R.

told her, “defendant touched me on my bottom and on my front . . . he went under my

underwear. He touched me on my bottom and then went around to the front and

touched me there.” Ms. Isaacs took V.R. to the magistrate’s office, and V.R. was then

transported by ambulance to the hospital. At the hospital, V.R. was interviewed

separately by Greensboro Police Officer NB Fisher and Greensboro Police Detective

Fred Carter. Detective Carter testified that V.R. told him that defendant put “his

hand under her panties and touch[ed] her buttock and her vagina, which she

described as her privates, front and back.”

      Later that day, V.R. was examined and interviewed by Lechia Davis, a certified

Sexual Assault Nurse Examiner (SANE). SANEs are registered nurses who specialize

in forensic collection of evidence and the medical care of victims of sexual assault.

Nurse Davis used a magnifying device called a colposcope to conduct an examination

of V.R.’s external genitalia, and she noted erythema, or redness, in the inner aspect

of V.R.’s labia. Nurse Davis testified as an expert witness that erythema could have

been caused by touching, improper hygiene, infection, or “a multitude of things.” She



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also opined, over defendant’s objection, that erythema was consistent with touching,

but that it could also be consistent with “other things, as well.”

      During jury deliberations, the jury submitted requests to the presiding judge.

The bailiff brought notes from the jury into the courtroom to Judge Craig. The first

note requested the police reports, and Judge Craig wrote, signed, and had the bailiff

deliver a note to the jury which stated: “The police reports were not introduced into

evidence[,] so we are unable to give them to you. Only marked and admitted exhibits

are available for your review.” Another note requested a transcript of the witnesses’

testimonies. Judge Craig again wrote, signed, and had the bailiff deliver a note to

the jury which stated: “Trial transcripts are not [produced] contemporaneous[ly] with

the testimony and the Court reporter would have to work many hours to get them

into readable form. Therefore, I regrettably deny your request, in my discretion,

because it would cause a significant delay in your deliberations.”

                                         Discussion

      On appeal, defendant contends that the trial court erred by allowing witnesses

to vouch for V.R.’s credibility and by failing to receive and address jury questions in

the courtroom before the jurors as a whole.

      I. Witness Testimony

      In the present case, defendant contends that the trial court erred in allowing

three witnesses to improperly vouch for V.R.’s credibility: Ms. Isaacs, Detective



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                                  Opinion of the Court



Carter, and Nurse Davis. Defendant concedes that he did not object at trial to the

testimony of Detective Carter or Ms. Isaacs. Accordingly, we review the admission of

both Detective Carter’s and Ms. Isaacs’s testimony for plain error. See, e.g., N.C.R.

App. P. 10(a)(4) (2017).    In order to establish plain error, “a defendant must

demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365 N.C.

506, 518, 723 S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983)). “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. (quoting

Odom, 307 N.C. at 660, 300 S.E.2d at 378) (other citation omitted).

      Defendant objected at trial to the testimony of Nurse Davis. Accordingly, we

review the trial court’s admission of Nurse Davis’s testimony for abuse of discretion.

See State v. Livengood, 206 N.C. App. 746, 747, 698 S.E.2d 496, 498 (2010).

      A. Ms. Isaacs’s Testimony

      Defendant first contends that the trial court erred by allowing Ms. Isaacs to

vouch for V.R.’s credibility, and that this constituted plain error. We disagree.

      Under N.C. Gen. Stat. § 8C-1, Rule 701, lay witness “testimony in the form of

opinions or inferences is limited to those opinions or inferences which are (a)

rationally based on the perception of the witness and (b) helpful to a clear

understanding of his testimony or the determination of a fact in issue.” N.C. Gen.



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                                    Opinion of the Court



Stat. § 8C-1, Rule 701 (2017). In the portion of Ms. Isaacs’s testimony to which

defendant assigns error, Ms. Isaacs states as follows:

               I knew that my daughter would tell me the truth because
               that’s what I had instilled in her. So I was debating on
               whether to wake her up. I didn’t want to traumatize her. I
               didn’t want to scare her. I knew that when she would come
               to me at that moment when I asked her that she would tell
               me the truth.

In sum, Ms. Isaacs testified that she believed that her daughter was truthful in her

accusations.

      This Court confronted a similar issue in State v. Dew, 225 N.C. App. 750, 738

S.E.2d 215 (2013), disc. review denied, 366 N.C. 595, 743 S.E.2d 187 (2013). In Dew,

the defendant appealed his conviction for taking indecent liberties with a minor and

argued that the trial court had committed plain error in admitting the following

testimony from the two victims’ mother:

               They said just—they—I don’t remember even which one of
               it was, but they said they had been messed with. And I said,
               what? They said, “We’ve been molested.” And I said, “By
               who?” And they said, “Uncle John.” And I just jumped up
               and down and screamed because I couldn’t, you know, it
               was hard to believe. And I said, “No he didn’t, no he didn’t.”
               And I mean, not telling them that he really didn’t, but
               just—I couldn’t believe that he’d done it. But I believe my
               girls and I looked at them and I—and I just remember
               hugging them and I said, oh God. You know what this
               means? And I said, you know, I’ll do whatever I have to do
               to prosecute and they understood that.

Id. at 755, 738 S.E.2d at 219. We concluded as follows:



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                                  Opinion of the Court



             When taken in context, Ms. M.’s statement that she
             believed her daughters was made in the course of a
             discussion of her emotional state at the time that Violet
             and Becky informed her that Defendant had sexually
             abused them. Assuming, without in any way deciding, that
             the admission of this portion of Ms. M.’s testimony was
             improper, Defendant has failed to show that, absent the
             error, the jury would have probably reached a different
             result. Simply put, in view of the relatively incidental
             nature of the challenged statement and the fact that most
             jurors are likely to assume that a mother will believe
             accusations of sexual abuse made by her own children, we
             cannot conclude that the challenged portion of Ms. M.’s
             testimony had any significant impact on the jury’s decision
             to convict Defendant.

Id. at 755-56, 738 S.E.2d at 219 (citing State v. Ramey, 318 N.C. 457, 466, 349 S.E.2d

566, 572 (1986) (stating that “[i]t is unlikely that the jury gave great weight to the

fact that a mother believed that her son was truthful”)).

      Assuming, arguendo, that the admission of this portion of Ms. Isaacs’s

testimony was improper in the present case, defendant has failed to demonstrate that

the jury would have probably reached a different result absent the error, for the same

reasons that this Court stated in Dew. See Dew, 225 N.C. App. at 756, 738 S.E.2d at

219. It is not likely that the jury’s decision to convict defendant was significantly

impacted by a mother’s statement that her daughter “would tell [her] the truth” about

an incident of sexual abuse. We find no plain error.




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                                    Opinion of the Court



      B. Detective Carter’s Testimony

      Defendant next argues that Detective Carter’s testimony at trial improperly

vouched for V.R.’s credibility and was plain error. We disagree.

      Again, lay witness “testimony in the form of opinions or inferences is limited

to those opinions or inferences which are (a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of his testimony or the determination

of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701. However, as our Supreme Court

has stated:

              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.

State v. Lloyd, 354 N.C. 76, 109, 552 S.E.2d 596, 620 (2001) (citation omitted)

(emphasis added).

      Here, Detective Carter testified about his observation of V.R.’s demeanor

during Detective Carter’s interview with V.R., as follows:

              Q. And did you make any observations of [V.R.]’s demeanor
              during the time that you interacted with her?

              A. Her responses seemed to be thoughtful. She paused
              several times while telling the story, just trying to recollect,
              and with each account she looked at the ground or looked
              downward several times, seemed to be genuinely affected
              by what had occurred.



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                                   Opinion of the Court



Defendant maintains that this testimony was the functional equivalent of vouching

for V.R.’s credibility. We disagree.

      This testimony concerning V.R.’s demeanor does not constitute an opinion as

to the credibility of V.R. that is subject to Rule 701. See State v. Gobal, 186 N.C. App.

308, 318, 651 S.E.2d 279, 286 (2007). Rather, Detective Carter’s testimony contains

precisely the type of “instantaneous conclusions” our Supreme Court considers to be

admissible “shorthand statements of fact.” Id.; State v. Braxton, 352 N.C. 158, 187,

531 S.E.2d 428, 445 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001).

Accordingly, there was no error in the admission of this testimony.

      C. Nurse Davis’s Testimony

      Defendant also argues that the trial court abused its discretion in admitting

certain opinion testimony from Nurse Davis as in effect vouching for V.R.’s credibility,

over defendant’s objection at trial. We find defendant’s argument to be without merit.

      Under North Carolina law, it is well established 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) (citations omitted). “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



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                                   Opinion of the Court



v. Stancil, 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (per curiam) (citation

omitted) (emphasis in original). “However, an expert witness may testify, upon a

proper foundation, as to the profiles of sexually abused children and whether a

particular complainant has symptoms or characteristics consistent therewith.” Id.

(citations omitted).

      In the present case, Nurse Davis gave the following testimony to which

defendant assigns error:

             Q. . . . With regard to a finding, such as the erythema or
             redness, could that sort of redness be caused by touching of
             some sort?

             A. Yes, it could.

             Q. Could it also be caused by other things?

             A. Yes.

             Q. And what other types of things might cause that?

             A. If a little girl doesn’t clean herself well. If there were
             more aggressive touching, it would probably be redder.
             There could be abrasions there and they weren’t noted. So
             as far as what else, if there were infection, I mean, it could
             be, you know, a multitude of things.
                                           ...
             Q. Yes. Do you have an opinion to a reasonable degree of
             medical certainty as to whether your physical examination
             of [V.R.] was consistent with the medical history that you
             received of touching?

             A. Yes. It was consistent.

             Q. And it’s fair to say, again, that it could also be consistent


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             with other things, as well?

             A. Yes.

      Nurse Davis stated that the erythema was consistent with touching, but also

could be consistent with “a multitude of things.” We fail to see how this testimony

improperly vouches for V.R.’s credibility and we find defendant’s arguments

unconvincing. This testimony, that erythema is “consistent” with touching, is not

tantamount to vouching for V.R.’s credibility. Accordingly, the admission of this

testimony was not an abuse of discretion by the trial court, nor did it constitute

prejudicial error.

      II. Jury Questions

      Next, defendant contends that the trial court committed reversible error by

failing to receive and address jury questions before the entire jury panel in the

courtroom, in violation of both N.C. Gen. Stat. § 15A-1233(a) and Article I, Section 24

of the North Carolina Constitution. After careful review, we conclude that while the

trial court erred by failing to conduct the jury to the courtroom as required by N.C.

Gen. Stat. § 15A-1233(a), there was no showing that this error was prejudicial or that

there was a constitutional violation.

      N.C. Gen. Stat. § 15A-1233(a) provides, in relevant part:

             If the jury after retiring for deliberation requests a review
             of certain testimony or other evidence, the jurors must be
             conducted to the courtroom. The judge in his discretion,
             after notice to the prosecutor and defendant, may direct


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             that requested parts of the testimony be read to the jury
             and may permit the jury to reexamine in open court the
             requested materials admitted into evidence. In his
             discretion the judge may also have the jury review other
             evidence relating to the same factual issue so as not to give
             undue prominence to the evidence requested.

N.C. Gen. Stat. § 15A-1233(a) (2017). Article I, Section 24 of the North Carolina

Constitution states that “[n]o person shall be convicted of any crime but by the

unanimous verdict of a jury in open court.” N.C. Const. Art I, § 24. This provision of

our Constitution has been interpreted as prohibiting “the trial court [from]

provid[ing] explanatory instructions to less than the entire jury [as a] violat[ion] [of]

the defendant’s constitutional right to a unanimous jury verdict.” State v. Wilson, 363

N.C. 478, 483, 681 S.E.2d 325, 329 (2009).

      In advancing his argument, defendant relies on our Supreme Court’s decisions

in State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), and State v. Wilson, 363 N.C.

478, 681 S.E.2d 325 (2009). In Ashe, the jury foreman returned to the courtroom

alone after the jury had retired to deliberate, where he had the following exchange

with the presiding judge:

             The Court: Mr. Foreman, the bailiff indicates that you
             request access to the transcript?

             Foreman: We want to review portions of the testimony.

             The Court: I’ll have to give you this instruction. There is no
             transcript at this point. You and the other jurors will have
             to take your recollection of the evidence as you recall it and
             as you can agree on that recollection in your deliberations.


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Ashe, 314 N.C. at 33, 331 S.E.2d at 655-56. Our Supreme Court held that the trial

court violated Article I, Section 24 and N.C. Gen. Stat. § 15A-1233(a) by failing to

summon all of the jurors to the courtroom before hearing and responding to the jury’s

request to review the trial transcript. Id. at 40, 331 S.E.2d at 659.

      In Wilson, after being notified by the jury of concerns regarding the foreperson,

“the trial court summoned only the foreperson and provided him with instructions on

and off the record that it did not provide to the rest of the jury.” Wilson, 363 N.C. at

487, 681 S.E.2d at 332. Furthermore,

               following the third unrecorded bench conference with the
               foreperson, the trial court informed the foreperson that it
               needed to give him ‘one other instruction’ and instructed
               him that ‘[t]he issues about which we had talked in this
               courtroom, both here at the bench and also openly on the
               record, are issues [that you] are not to share with the other
               jurors.’

Id. Applying the principles from Ashe, the Court concluded that “the trial court

provided the foreperson with instructions that it did not provide to the rest of the jury

in violation of defendant’s right to a unanimous jury verdict.” Id. at 486, 681 S.E.2d

at 331. The Court further held “that where the trial court instructed a single juror

in violation of defendant’s right to a unanimous jury verdict under Article I, Section

24, the error is deemed preserved for appeal notwithstanding defendant’s failure to

object.” Id.




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                                   Opinion of the Court



      The facts of the instant case are, however, more closely analogous to those

presented in State v. McLaughlin, 320 N.C. 564, 359 S.E.2d 768 (1987).                In

McLaughlin, after retiring for deliberation, the jury sent the trial judge a note

requesting that the trial testimony of two witnesses be reread. McLaughlin, 320 N.C.

at 567, 359 S.E.2d at 770. “The trial judge sent a message to the jury, through the

bailiff, denying the jury’s request. The record [did] not indicate whether the judge’s

message was in written form or transmitted orally by the bailiff.” Id. at 567-68, 359

S.E.2d at 771. Our Supreme Court held that, while the trial court erred “by not

adhering to the requirements of [N.C. Gen. Stat. § 15A-1233(a)],” it was not a

prejudicial error or a violation of Article I, Section 24. Id. at 568, 359 S.E.2d at 771.

Moreover, the Court clarified that the reference to Article I, Section 24 in Ashe “was

intended to convey no more than the seemingly obvious proposition that for a trial

judge to give explanatory instructions to fewer than all jurors violated only the

unanimity requirement imposed on jury verdicts by Article I, [S]ection 24.”

McClaughlin, 320 N.C. at 569, 359 S.E.2d at 772.

      In the present case, the jury sent two notes to the trial court, one requesting

the police reports, and another requesting transcripts of trial testimony. On both

occasions, the bailiff brought these notes into the courtroom to the judge and

delivered the judge’s written responses to the jury. While this is error because the

trial court failed to comply with the provisions of N.C. Gen. Stat. § 15A-1233(a), there



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was no violation of defendant’s right to a unanimous verdict under Article I, Section

24. The trial court did not interact with or provide instructions to less than a full

jury panel.

      Additionally, a new trial is not warranted as there is no showing that the error

prejudiced defendant. “A new trial may be granted only if the trial court’s error was

such that ‘there is a reasonable possibility that, had the error in question not been

committed, a different result would have been reached.’ ” Id. at 570, 359 S.E.2d at

772 (quoting N.C. Gen. Stat. § 15A-1443(a) and citing State v. Loren, 302 N.C. 607,

276 S.E.2d 365 (1981)). Here, the trial court could not allow the jury to review police

reports that were not in evidence, and there was no showing of prejudice to defendant

in the trial court’s decision not to delay deliberations in order to have a transcript

produced of the testimony of the State’s witnesses. We find no prejudicial error.

                                         Conclusion

      For the reasons stated herein, we conclude that defendant received a fair trial,

free from plain or prejudicial error.

      NO ERROR.

      Judges ELMORE and TYSON concur.




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