               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1124

                               Filed: 6 September 2016

Person County, Nos. 13 CRS 52930-32

STATE OF NORTH CAROLINA

              v.

WILLIAM CLIFTON CRABTREE, SR.


        Appeal by Defendant from judgments entered 19 March 2015 by Judge Beecher

R. Gray in Person County Superior Court. Heard in the Court of Appeals 23 February

2016.


        Attorney General Roy Cooper, by Assistant Attorney General Natalie Whiteman
        Bacon, for the State.

        Mark Montgomery for Defendant.


        STEPHENS, Judge.


        Defendant William Clifton Crabtree, Sr., appeals from judgments entered

upon his convictions for first-degree sexual offense against a child under the age of

thirteen years, indecent liberties with a child, and crime against nature. Crabtree

argues that the trial court plainly erred by (1) allowing three witnesses to vouch for

the child victim’s credibility and (2) submitting the first-degree sexual offense charge

to the jury on a theory not supported by the evidence. While we agree that one of the

State’s witnesses impermissibly vouched for the victim’s credibility, we conclude that
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                                            Opinion of the Court



this error did not prejudice Crabtree. We find no error in the trial court’s submission

of the first-degree sexual offense charge.

                                Factual and Procedural Background

          The evidence at trial tended to show the following: In late April 2013, ten-

year-old “L.R.”1 and her two brothers began living with her grandmother and

Crabtree, the grandmother’s husband of sixteen years. L.R. testified that, shortly

thereafter, Crabtree, whom L.R. considered her “grandpa,” began making sexual

advances towards her, starting with an incident in the family’s barn when Crabtree

kissed L.R., inserted his tongue into her mouth, and touched her breasts. Crabtree

progressed to entering her room at night to “rub his thing on” her. L.R. testified that

Crabtree “rubbed his dick on my vagina and white stuff was coming out[.]”

Sometimes Crabtree made L.R. put her hand on his “thing” and move it up and down.

Crabtree touched the inside of L.R.’s vagina using his fingers and moving them “up

and down.” L.R. testified that it hurt when Crabtree’s fingernails would poke her

vagina and she had itching on the inside of her vagina. Crabtree also licked L.R.’s

vagina.

          L.R. testified that this sexual abuse took place when she was home sick from

school and her grandmother was at work and also on a morning following

Thanksgiving. L.R. explained that, on the latter occasion, her grandmother had



1   We refer to the child victim and her younger brother by initials in order to protect their identities.

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awakened, come to L.R.’s bedroom door, and witnessed Crabtree abusing L.R. In that

incident, Crabtree used his hand to rub her vagina and then “he started licking it.”

According to L.R., Crabtree threatened her with foster care if she told anyone about

his abuse.

      “D.J.,” L.R.’s younger brother, who, like his sister, had known Crabtree as his

“grandpa” for his entire life, testified about several instances when he saw Crabtree

“do things with [L.R.] that [D.J.] thought [were] weird or strange or inappropriate[.]”

D.J. testified that he witnessed Crabtree “lift up her skirt, her nightgown” while they

were seated at “the eating table.” On another occasion, in the family barn, D.J. saw

Crabtree “do something that [he] thought was wrong to” L.R., to wit, Crabtree “had

his hand in her pants.”     The third incident D.J. witnessed took place in L.R.’s

bedroom:

             A. I saw him sitting on the edge of the bed. [L.R.] was
             between his legs. I didn’t know what he was doing, but I
             did see that.

             Q. Did you know at this time what anybody was wearing
             when you saw that?

             A. Um, I think he was wearing his underwear, and she was
             wearing[] her purple nightgown.

             Q. Could you see anybody’s body parts?

             A. No, I did not.

             Q. Could you see any private parts of anybody?



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             A. No, I did not.

             Q. Okay. Now, when you saw those things that you
             thought were weird and wrong, did you say anything about
             it to anybody?

             A. I told my grandma.

             Q. When did you tell your grandma?

             A. Like the first time I saw it, I told her.

             Q. Okay. What did you say?

             A. That, um, I think something like that, um, he was
             messing with [L.R.].

      The grandmother testified that, on 29 November 2013, she awoke to find

Crabtree was not in their shared bedroom. Looking for her husband, she walked

through the house to the doorway of L.R.’s bedroom and saw Crabtree sitting on the

side of L.R.’s bed with his hands between L.R.’s legs and L.R.’s hands between his

legs. According to the grandmother, “[t]hey was feeling each other up[]” and there

was no doubt in her mind that the contact was sexual in nature. The grandmother

motioned for L.R. to remain quiet by placing her finger over her mouth because the

grandmother wanted to “see what all he was going to do.” The grandmother then

quietly retreated to her bedroom, unnoticed by Crabtree, but later returned to L.R.’s

bedroom and asked Crabtree what he was doing. Crabtree replied that he was

“looking for a mouse.” After Crabtree left the room, the grandmother spoke with L.R.

about what she had just seen, and L.R. disclosed her past sexual abuse by Crabtree.


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The grandmother did not confront Crabtree, instead contacting the Person County

Department of Social Services (“DSS”) and local law enforcement.

      Several witnesses testified about the investigation into L.R.’s allegations.

Later in December, the grandmother took L.R. to the emergency room (“ER”) after

she complained of pain and itching in her vaginal area and stated that Crabtree had

engaged in intercourse with her. An ER doctor alerted the Child Abuse Medical

Evaluation Clinic, an outpatient clinic affiliated with Duke University Hospital, and,

on 23 December 2013, Dr. Karen Sue St. Claire, a pediatrician and the medical

director of the clinic, began an evaluation of L.R. St. Claire testified as an expert

witness. During her initial exam of L.R., St. Claire received L.R.’s medical history

from the grandmother while Scott Snyder, St. Claire’s child interviewer, interviewed

L.R. about the alleged abuse. St. Claire’s physical examination of L.R. revealed no

physical signs of trauma or infection to L.R.’s vagina or anal area.

      St. Claire testified about the clinic’s five-tier rating system for evaluating an

alleged child victim’s description of sexual abuse.       St. Claire and Snyder each

classified L.R.’s description as level five, the “most diagnostic” category. St. Claire

testified that L.R.’s description provided a “clear disclosure” and a “clear indication”

of sexual abuse. Snyder was not formally offered or accepted as an expert witness,

but offered testimony about his interviews with L.R. Pertinent to this appeal, when




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asked on re-direct examination about L.R.’s report of a detail regarding an incident

of fellatio L.R. was forced to perform on Crabtree, Snyder testified as follows:

             Q Is that correct? Was it remarkable to you when she
             described the juice hitting the roof of her mouth?

             A Umm, remarkable in terms of not typically something
             that you would hear from a ten-year-old child, and not
             necessarily something, again trying to understand what
             may be the reason the child might be saying these things.
             It is striking in terms of what the child may have seen
             something happen, but that’s more of a experiential
             statement, in other words something may have actually
             happened to her as opposed to something seeing on a screen
             or something having been heard about.

      DSS social worker Antoinetta Royster received L.R.’s case in early December

2013 and subsequently interviewed L.R., her family members, and Crabtree. Like

Snyder, Royster was neither formally offered nor admitted as an expert witness.

Royster testified about her interviews and then was asked about the process DSS

follows in abuse and neglect cases:

             Umm, the family had based upon the recommendations
             from the CME, the Child Medical Evaluation, one other
             evaluation was recommended, and that’s called a Child
             Family Evaluation. And with those, it’s a lot of times in
             the abuse and serious neglect cases where the Child
             Medical Evaluation look[s] more at the physical, but could
             be physical evidence of abuse and neglect, the Child Family
             Evaluation look[s] more at the emotional piece of it to
             basically talk with everyone in the family. And if there is
             any other thing, any other treatment is needed, they would
             recommend that to DSS for us to like move on with that,
             move forward in that direction. They . . . also give what
             they, not really a diagnosis, but their conclusion or decision


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             about those children that have been evaluated if they were
             abused or neglected in any way.

             Q So and all of those recommendations and treatments
             have been followed up on—

             A Yes.

             Q —as you continue to be involved in this case. Is that
             correct?

             A Yes.

      Captain A.J. Weaver of the Person County Sheriff’s Office also testified on

behalf of the State. Weaver testified about his recorded interview with L.R. on 4

December 2013. The recorded interview was introduced into evidence as State’s

Exhibit 3, published, and played for the jury without objection. In the recording,

which was transcribed by the court reporter when it was played for the jury at trial,

L.R. disclosed that Crabtree had touched her “private area” with his hands and forced

L.R. to “rub” his “private.” L.R. also described Crabtree pulling her pants down and

licking her “private.” L.R. further explained that, after playing with her “private,”

Crabtree would put his “private” in L.R.’s mouth, go “up and down” until “stuff

start[ed] coming out” and went into L.R.’s mouth. L.R. said the latter form of abuse

had happened two or three times. Weaver testified that, following his interview with

L.R., he sought warrants and arrested Crabtree on 4 December 2013.

      On 9 December 2013, a Person County Grand Jury indicted Crabtree on three

charges based on the events alleged to have occurred on 29 November 2013: one count


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of first-degree sex offense against a child under the age of thirteen years, one count

of indecent liberties with a child, and one count of crime against nature. Crabtree

pled not guilty, and his case came on for trial at the 16 March 2015 session of Person

County Superior Court, the Honorable Beecher R. Gray, Judge presiding. Following

the close of the State’s evidence,2 Crabtree elected not to present any evidence. At

the close of all evidence, Crabtree moved to dismiss the charges against him, and the

trial court denied that motion.

         On 19 March 2015, the jury returned verdicts finding Crabtree guilty on all

charges. The court consolidated the first-degree sexual offense against a child under

the age of thirteen years and the crime against nature convictions and entered a

judgment sentencing Crabtree to a term of 317-441 months. The court then entered

a separate judgment sentencing Crabtree to a concurrent term of 21-35 months for

the indecent liberties with a child conviction. Crabtree gave notice of appeal in open

court.

                                            Discussion

         On appeal, Crabtree argues that (1) the trial court committed plain error in

allowing St. Claire, Snyder, and Royster to vouch for L.R.’s credibility, or in the

alternative, that Crabtree received ineffective assistance of counsel (“IAC”) when his



2 The State offered testimony from several other witnesses in addition to those discussed supra. The
testimony of those witnesses was corroborative of the direct, eyewitness accounts of abuse offered by
L.R. and her grandmother.

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trial counsel failed to object to the challenged testimony; and (2) the trial court

committed plain error in submitting the charge of first-degree sexual offense to the

jury on a theory not supported by the evidence. We find no prejudicial error in the

admission of the challenged testimony and no error in the submission of the first-

degree sexual offense charge.

I. Standard of review

      To preserve an issue for review on appeal, a defendant “must have presented

the trial court with a timely request, objection[,] or motion, stating the specific

grounds for the ruling sought if the specific grounds are not apparent.” N.C.R. App.

P. 10(a)(1). However,

             [i]n 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.

N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875

(2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008). Plain error review is

limited to issues that “involve either (1) errors in the judge’s instructions to the jury,

or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584,

467 S.E.2d 28, 31 (1996) (citations omitted).

             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


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             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
             affect[s] the fairness, integrity or public reputation of
             judicial proceedings.

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

marks and citations omitted). Thus, “[u]nder the plain error rule, [a] defendant must

convince this Court not only that there was error, but that absent the error, the jury

probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440,

426 S.E.2d 692, 697 (1993) (citation omitted).

II. Vouching for L.R.’s credibility

      Crabtree first argues that St. Claire, Snyder, and Royster improperly vouched

for the credibility of L.R. during their testimony. We conclude that neither Snyder

nor Royster improperly testified as to L.R.’s credibility. While we agree that St.

Claire improperly vouched for L.R.’s credibility in the midst of otherwise acceptable

testimony, we conclude that Crabtree was not prejudiced by the impermissible

testimony.

      “[T]estimony 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 child sexual abuse cases,

where there is no physical evidence of the abuse, an expert witness’s affirmation of



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sexual abuse amounts to an evaluation of the veracity of the child witness and is,

therefore, impermissible testimony. State v. Dick, 126 N.C. App. 312, 315, 485 S.E.2d

88, 89, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997).          Examples of

impermissible vouching for a child victim’s credibility include a clinical psychologist’s

testimony that a child victim was “believable[,]” see State v. Aguallo, 318 N.C. 590,

599, 350 S.E.2d 76, 81 (1986), and an expert witness’s statement, based on an

interview with the child, that she “was a sexually abused child.” See State v. Grover,

142 N.C. App. 411, 414, 543 S.E.2d 179, 181, affirmed per curiam, 354 N.C. 354, 553

S.E.2d 679 (2001).     “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.” State v. Stancil,

355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002) (per curiam) (citations omitted).

Further, the same analysis applies to a witness who is a DSS worker or child abuse

investigator because, even if she is “not qualified as an expert witness, . . . the jury

[will] most likely [give] her opinion more weight than a lay opinion.” State v. Giddens,

199 N.C. App. 115, 122, 681 S.E.2d 504, 508 (2009), affirmed per curiam, 363 N.C.

826, 689 S.E.2d 858 (2010).

      Crabtree contends that Snyder and Royster, lay witnesses for the State,

improperly vouched for L.R.’s credibility during their testimony.        Crabtree cites

Royster’s statement, in explaining the process of investigating a report of child sexual



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abuse, that “[St. Claire and her team] give . . . their conclusion or decision about those

children that have been evaluated if they were abused or neglected in any way.” Read

in context as quoted supra in the Factual and Procedural Background of this opinion,

it is clear that Royster’s comment was merely a description of what St. Claire’s team

are expected to have done before sending any case to DSS for further evaluation.

Royster was not commenting directly on L.R.’s case at all, let alone her credibility,

and thus the challenged testimony was not inadmissible.

      Crabtree also challenges testimony in which Snyder characterized L.R.’s

description of performing fellatio on Crabtree as “more of an experiential statement,

in other words something may have actually happened to her as opposed to something

[seen] on a screen or something having been heard about.” As with Royster’s remark,

Snyder’s testimony specifically left the credibility determination to the jury by

stating, “something may have actually happened to [L.R.] as opposed to something”

L.R. learned about from the media or another source. (Emphasis added). Thus, we

conclude that Snyder did not improperly vouch for L.R.’s credibility.

      In contrast, St. Claire’s testimony did include impermissible vouching. We find

no fault with St. Claire’s description of the five-tier rating system that the clinic uses

to evaluate potential child sexual abuse victims based on the particularity and detail

with which a patient gives his or her account of the alleged abuse. However, her

statement that “[w]e have sort of five categories all the way from, you know, we’re



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                                   Opinion of the Court



really sure [sexual abuse] didn’t happen to yes, we’re really sure that [sexual abuse]

happened” and her reference to the latter category as “clear disclosure” or “clear

indication” of abuse, in conjunction with her identification of that category as the one

assigned to L.R.’s 23 December 2013 interview, crosses the line from a general

description of the abuse investigation process into impermissible vouching. Likewise,

St. Claire’s testimony that her team’s “final conclusion [was] that [L.R.] had given a

very clear disclosure of what had happened to her and who had done this to her” was

an inadmissible comment on L.R.’s credibility.

       As part of our plain error review, having concluded that the admission of these

remarks by St. Claire was error, we must next determine whether they prejudiced

Crabtree. After careful consideration, we conclude that they did not.

       This Court’s opinion in State v. Ryan provides a helpful, well-reasoned

framework for assessing the prejudice of an expert witness’s vouching for an alleged

child victim’s credibility:

              Under our plain error review, we must consider whether
              the erroneous admission of expert testimony that
              impermissibly bolstered the victim’s credibility had the
              prejudicial effect necessary to establish that the error was
              a fundamental error. This Court has held that it is
              fundamental to a fair trial that a witness’s credibility be
              determined by a jury, that expert opinion on the credibility
              of a witness is inadmissible, and that the admission of such
              testimony is prejudicial when the State’s case depends
              largely on the testimony of the prosecuting witness.




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             Notably, a review of relevant case law reveals that [(1)]
             where the evidence is fairly evenly divided, or [(2)] where
             the evidence consists largely of the child victim’s testimony
             and testimony by corroborating witnesses with minimal
             physical evidence, especially where the defendant has put
             on rebuttal evidence, the error is generally found to be
             prejudicial, even on plain error review, since the expert’s
             opinion on the victim’s credibility likely swayed the jury’s
             decision in favor of finding the defendant guilty of a sexual
             assault charge.

223 N.C. App. 325, 336-37, 734 S.E.2d 598, 606 (2012) (citations and internal

quotation marks omitted; emphasis added), disc. review denied, 366 N.C. 433, 736

S.E.2d 189 (2013). In Ryan, this Court found the expert’s vouching prejudicial, noting

that the defendant testified, denying all of the charges, and his ex-wife also testified

on his behalf, while

             the State’s evidence consisted of testimony from the child,
             her family members, her therapist, the lead detective on
             the case who was an acquaintance of the family, and an
             expert witness. All of the State’s evidence relied in whole
             or in part on the child’s statements concerning the alleged
             sexual abuse. . . . There was no testimony presented by the
             State that did not have as its origin the accusations of the
             child. For this reason, the credibility of the child was
             central to the State’s case.

Id. at 337, 734 S.E.2d at 606 (emphasis added). See also State v. Bush, 164 N.C. App.

254, 260, 595 S.E.2d 715, 719 (2004) (“In the case at bar, any and all corroborating

evidence is rooted solely in [the victim’s] telling of what happened, and that her story

remained consistent. . . . Therefore, the conclusive nature of [the doctor’s] testimony




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as to the sexual abuse and that [the] defendant was the perpetrator was highly

prejudicial. This constituted plain error.” (Emphasis added)).

      In contrast, this Court has found no prejudice to a defendant where “absent

the [impermissible vouching] testimony, the . . . case involve[s] more evidence of guilt

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

corroborating witnesses.” State v. Sprouse, 217 N.C. App. 230, 242, 719 S.E.2d 234,

243 (2011), disc. review denied, 365 N.C. 552, 722 S.E.2d 787 (2012). In Sprouse, the

defendant contended “that the trial court committed plain error by allowing [a] DSS

social worker . . . to testify that there had been a substantiation of sex abuse of [the

child victim] by [the] defendant.” Id. at 241, 719 S.E.2d at 243. Although we agreed

that the social worker’s “testimony that DSS had substantiated the allegations of

abuse” was error, this Court concluded that “the error [did] not rise to the level of

plain error . . . .” Id. at 243, 719 S.E.2d at 244. In that case,

             [a]side from the testimony of A.B.[, the child victim,] and
             the witnesses corroborating her testimony, the following
             evidence was presented at trial: testimony by Raquel[, the
             defendant’s wife,] that shortly after A.B. filed charges
             against [the] defendant, [the] defendant “manipulat[ed]”
             Raquel to tattoo his penis in order to “blow [A.B.’s] story
             out of the water”; [the] defendant asked Raquel to contact
             Burris[, a female acquaintance,] in an effort to get Burris
             to lie about having seen the tattoo during the time period
             associated with the allegations by A.B.; photographs of
             [the] defendant’s penis, coupled with Raquel’s testimony,
             showed that he did not have a tattoo as of 2 January 2007,
             despite the fact that he testified he did have the tattoo as



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             early as 2003 or 2004; and [the] defendant tried to have
             A.B. killed after charges were filed against him.

Id. at 242-43, 719 S.E.2d at 243-44. Thus, as in Crabtree’s case, there was substantial

evidence supporting the victim’s abuse allegations that was independent of the

victim’s report.

      Similarly, in State v. Davis, this Court noted that “it is not plain error for an

expert witness to vouch for the credibility of a child sexual abuse victim where the

case does not rest solely on the child’s credibility.” 191 N.C. App. 535, 541, 664 S.E.2d

21, 25 (2008) (citation omitted).     Thus, although “admission of [the challenged]

statement was error as it improperly vouched for [the victim’s] credibility[,]” because

evidence independent of the child’s account of abuse was before the jury, “we [held]

that admission of this statement did not constitute plain error.” Id.

      Here, although there was no physical evidence of sexual abuse, Crabtree

presented no evidence, let alone evidence rebutting L.R.’s allegations.            More

importantly, unlike in Ryan and Bush, the State’s entire case did not rest solely on

L.R.’s account of what happened. The criminal charges against Crabtree arose from

an incident that was alleged to have occurred on 29 November 2013. As noted supra,

the grandmother testified that, on that date, she saw Crabtree “sitting on the side of

[L.R.’s] bed, and he had his hands between [L.R.’s] legs, and [L.R.] had her hands

between his legs. . . . They was feeling each other up.” This eyewitness account of

Crabtree sexually abusing L.R. is entirely independent of L.R.’s reports of abuse at


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the hands of her “grandpa,” and thus not dependent on L.R.’s credibility. Further,

the grandmother also testified that she had been married to Crabtree for twenty

years, had loved him during their marriage, and had a son with him. Thus, her

testimony that she witnessed her own husband sexually abusing her granddaughter

was likely highly persuasive to the jury.

      Likewise, L.R.’s brother, D.J., testified that he had seen several “weird”

encounters between Crabtree and his sister, including Crabtree “lift[ing] up her skirt,

her nightgown” at the dinner table; Crabtree with “his hand in her pants” in the barn;

and Crabtree, in his underwear “sitting on the edge of [L.R.’s] bed. She was between

his legs.” While these incidents were apparently not those for which Crabtree was

charged in this matter, D.J.’s testimony about them bolsters L.R.’s reports that

Crabtree had been sexually abusing her for a period of time, and, like the

grandmother’s testimony, is entirely independent of L.R.’s credibility.

      In light of this independent evidence of Crabtree’s guilt not based on L.R.’s

reports of abuse, the precedent established in Sprouse and Davis compels our

conclusion that “it was not plain error for [St. Claire] to vouch for the credibility of

[L.R. because] the case [did] not rest solely on the child’s credibility.” See Davis, 191

N.C. App. at 541, 664 S.E.2d at 25 (citation omitted). Accordingly, Crabtree cannot

show he was prejudiced by St. Claire’s vouching and, as a result, has failed to

establish plain error.



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      We likewise reject Crabtree’s alternative argument that he received IAC in

that his trial counsel failed to object to St. Claire’s vouching testimony.

             To prevail on a claim of [IAC], a defendant must first show
             that his counsel’s performance was deficient and then that
             counsel’s deficient performance prejudiced his defense. . . .
             Generally, to establish prejudice, a defendant must show
             that there is a reasonable probability that, but for counsel’s
             unprofessional errors, the result of the proceeding would
             have been different.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citations and internal

quotation marks omitted; emphasis added), cert. denied, 549 U.S. 867, 166 L. Ed. 2d

116 (2006). In light of our determination that St. Claire’s impermissible vouching for

L.R.’s credibility was not prejudicial to him, Crabtree cannot establish the second

prong of a successful IAC claim.

III. First-degree sexual offense charge

      Crabtree also argues that the trial court committed plain error in submitting

the charge of first-degree sexual offense to the jury on a theory not supported by the

evidence. Specifically, Crabtree contends that there was no substantive evidence of

fellatio presented at trial and, therefore, the trial court erred in instructing the jury

that a sexual act for purposes of first-degree sex offense included fellatio as well as

cunnilingus and penetration. We disagree.

      “[I]t is plain error to allow a jury to convict a defendant upon a theory not

supported by the evidence.” State v. Jordan, 186 N.C. App. 576, 584, 651 S.E.2d 917,



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922 (2007) (citations omitted), disc. review denied, 362 N.C. 241, 660 S.E.2d 492

(2008). Thus, a defendant is entitled to a new trial when “the trial court erroneously

submits the case to the jury on alternative theories, one of which is not supported by

the evidence . . . and . . . it cannot be discerned from the record upon which theory or

theories the jury relied in arriving at its verdict . . . .” State v. Lynch, 327 N.C. 210,

219, 393 S.E.2d 811, 816 (1990) (citation omitted). However, “the testimony of a

single witness will legally suffice as evidence upon which the jury may found a

verdict.” State v. Vehaun, 34 N.C. App. 700, 704, 239 S.E.2d 705, 709 (1977) (citation

and internal quotation marks omitted), disc. review denied, 294 N.C. 445, 241 S.E.2d

846 (1978). Further,

             [e]vidence of an out-of-court statement of a witness, related
             by the in-court testimony of another witness, may be
             offered as substantive evidence . . . . Although the better
             practice calls for the party offering the evidence to specify
             the purpose for which the evidence is offered, unless
             challenged there is no requirement that the purpose be
             specified.

State v. Ford, 136 N.C. App. 634, 640, 525 S.E.2d 218, 222 (2000) (citations and

footnotes omitted).

      At trial, L.R. gave no testimony describing an instance in which she performed

fellatio on Crabtree, and, on appeal, Crabtree asserts that “[t]he only references to

fellatio were in the form of alleged out-of-court statements by [L.R.] to [the

grandmother], . . . St. Claire, . . . Snyder, and . . . Royster.” However, as noted supra,



                                          - 19 -
                                 STATE V. CRABTREE

                                  Opinion of the Court



the State also presented testimony from Weaver about his 4 December 2013 interview

of L.R. A recording of that interview was admitted as “substantive” evidence without

objection as State’s Exhibit 3 and was published to the jury. The recording includes

the following exchange between Weaver and L.R.:

            Q     Has he tried to put his private area anywhere else
            on you?

            A      In my mouth.

            Q      He did. When did that happen, do you know?

            A      My, like whenever he’s done with me, he’ll like take
            his private and go in my mouth.

            Q     When you say done with you, what do you mean by
            that?

            A      Like he’s done playing, playing with me.

            Q      Uh-huh.

            A      Like in my private area, he’s done playing.

            Q      Then he’ll put his private area in your mouth?

            A      (Nods affirmatively.)

            Q    What happens when that happens? What happens
            when he does that?

            A      He’ll like go up and down.

            Q      Uh-huh. And then what happens?

            A      It like, it’s stuff starts coming out.



                                         - 20 -
                                  STATE V. CRABTREE

                                   Opinion of the Court



             Q      In your mouth?

             A      (Nods affirmatively.)

             Q    Okay. All right. All right. How many times has that
             happened?

             A      Like two or three.

             Q    Two or three.          Do you remember when that
             happened?

             A      Umm, on the Friday morning.

             Q      On Friday morning that happened?

             A      Yeah, before my grandma got up.

During a bench discussion with the prosecutor and defense counsel about the DVD

which contained the recording and also included an interview of the victim’s

grandmother, the trial court clarified that, “The only part that’s going to be

substantive is the interview of [L.R.].” The recording was admitted without objection

or limiting instruction, and the only instruction regarding the recording given by the

trial court during the jury charge was that the recording could be considered “as

evidence of facts it illustrates or shows.” L.R.’s recorded description of Crabtree

forcing her to perform fellatio on him was thus substantive evidence supporting

Crabtree’s conviction for first-degree sexual abuse on the basis of fellatio. Crabtree’s

argument is overruled, and we hold that he received a fair trial, free of prejudicial

error.



                                          - 21 -
                        STATE V. CRABTREE

                        Opinion of the Court



NO PREJUDICIAL ERROR IN PART; NO ERROR IN PART.

Judge BRYANT concurs.

Judge McCULLOUGH dissents in a separate opinion.




                               - 22 -
 No. COA15-1124 – STATE v. CRABTREE


      McCullough, Judge, dissents.


      From the majority opinion's conclusion that an expert witness's testimony

vouching for the credibility of the victim was harmless error, I dissent. As the

majority acknowledges, vouching for a victim-witness’s credibility is normally not

permissible.


      Defendant argues that three witnesses improperly vouched for the credibility

of L.R. in this case. We agree that the State’s expert witness improperly vouched for

L.R.’s credibility in the midst of otherwise acceptable testimony.       However, we

disagree that any other witness improperly testified as to L.R.’s credibility.

      “[T]estimony 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); see also State v. Aguallo, 318 N.C. 590, 599, 350

S.E.2d 76, 81 (1986) (a clinical psychologist’s testimony as an expert witness that a

child victim was “believable” was inadmissible). This Court has also recognized that

where no physical evidence of sexual abuse exists, an expert witness’s affirmation of

sexual abuse of a child amounts to an evaluation of the veracity of the child witness

and is, therefore, impermissible testimony. See State v. Dick, 126 N.C. App. 312, 315,

485 S.E.2d 88, 90 (1997) (distinguishing the holdings in State v. Trent, 320 N.C. 610,

359 S.E.2d 463 (1987) and State v. Parker, 111 N.C. App. 359, 432 S.E.2d 705 (1993)).

“However, an expert witness may testify, upon a proper foundation, as to the profiles
                                  STATE V. CRABTREE

                                  McCullough, J., dissents



of sexually abused children and whether a particular complainant has symptoms or

characteristics consistent therewith.” State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d

788, 789 (2002).

      The majority acknowledges that the testimony of Dr. St. Claire, in part,

constituted inadmissible “vouching.” At trial, Dr. St. Claire testified as the State’s

expert witness regarding L.R.’s interview and physical examination. As noted above,

Dr. St. Claire described a five-tier rating system that the clinic uses to evaluate

potential child sexual abuse victims based on the particularity and detail with which

a patient gives his or her account of the alleged abuse. Upon review of Dr. St. Claire’s

testimony, I find no fault with Dr. St. Claire’s description of the five-tier system apart

from Dr. St. Claire’s statement that, “[w]e have sort of five categories all the way

from, you know, we’re really sure [sexual abuse] didn’t happen to yes, we’re really

sure that [sexual abuse] happened.” See State v. Grover, 142 N.C. App. 411, 414-19,

543 S.E.2d 179, 181-83 (2001) (an expert witness’s conclusion, based only on an

interview with the child and with no physical evidence, that “[she] was a sexually

abused child” was impermissible testimony). Dr. St. Claire and her team refer to the

latter category as “clear disclosure” or “clear indication” and assigned L.R.’s

23 December 2013 interview at the clinic to this category. To be exact, their “final

conclusion [was] that [L.R.] had given a very clear disclosure of what had happened

to her and who had done this to her.”



                                             2
                                  STATE V. CRABTREE

                                  McCullough, J., dissents



      In cases involving alleged sexual abuse of a child, there is a fine line between

expert testimony properly evaluating a diagnosis of the child witness and expert

testimony that improperly vouches for the credibility of the child witness. Had Dr.

St. Claire not supplemented her description of the five-tier rating system with the

comment that a “clear disclosure” signifies near certainty as to the sexual abuse of

the child, no improper vouching for the credibility of the child witness would have

occurred. However, by testifying that the team is near certain that sexual abuse has

occurred when a child’s allegations are classified in the “clear disclosure” tier and

then testifying that L.R.’s interview was classified as a clear disclosure, Dr. St. Claire

effectively testified that the team was near certain that L.R. had been sexually

abused. I believe that this testimony crosses that delicate line and amounts to

vouching for L.R.’s credibility. Because the State’s evidence almost entirely relies on

L.R.’s testimony and the corroborative testimony of other witnesses, it is likely that

Dr. St. Claire’s testimony caused the jury to rely on Dr. St. Claire’s opinion of L.R.’s

disclosure rather than reach its own conclusion as to the credibility of L.R.’s

testimony at trial. Thus, I believe Dr. St. Claire’s testimony regarding the certainty

of sexual abuse occurring had a probable impact on the jury finding the defendant

guilty of first degree sexual offense against a child under the age of thirteen years,

indecent liberties with a child, and crime against nature.




                                             3
                                 STATE V. CRABTREE

                                McCullough, J., dissents



      The majority recognizes that this portion of Dr. St. Claire’s testimony is

inadmissible, but concludes that the sexual activity observed by the victim’s

grandmother along with observations made by the victim’s brother provide such

overwhelming evidence of guilt that the admission of the expert’s improper vouching

testimony is harmless beyond a reasonable doubt. I recognize that vouching for the

victim’s credibility is not always plain error and can be harmless error when the other

evidence in the case is very strong. See State v. Hammet, 361 N.C. 92, 637 S.E.2d 518

(2006) and State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002).


      In the case sub judice, however, without the grandmother’s and brother’s

observations there might not have been a conviction, even with the inadmissible

expert witness testimony. This victim was an admitted liar. She admitted to lying

about sexual activity in order to live with her aunt who would let her do what she

wanted. On cross examination L.R. testified as follows:


             Q. What grade did you say you were in?

             A. Fourth.

             Q. What type of grades do you get?

             A. Eighties and Nineties and one hundreds.

             Q. And have you been told you’re pretty smart?

             A. Yes.

             Q. You said it’s more important to tell the truth?

                                           4
                   STATE V. CRABTREE

                   McCullough, J., dissents




A. Yes.

Q. And you talked to Investigator Weaver about this case;
   is that correct?

A. Yes.

Q. Do you remember talking to him about 6 months before?

A. Yes.

....

Q. Do you remember talking to them another time about 6
   months before?

A. Yes.

Q. Did you tell them that your brothers had raped you?

A. Yes.

Q. Was that the truth or a lie?

A. A lie.

Q. Do you know why you told it?

A. Yes.

Q. Can you tell us why you told that lie?

A. So, I could go and live with somebody else.

Q. That would have been your Aunt Delilah?

A. Yes.

Q. And you loved her a lot?


                              5
                    STATE V. CRABTREE

                    McCullough, J., dissents



A. Yes.

Q. Was she your grandmother’s sister?

A. Yes.

Q. Did she let you do whatever you wanted?

A. Yes.

Q. Did you like doing that?

A. Yeah.

Q. Now, you had recently moved in               with    your
   grandmother, Mildred. Is that right?

A. Yes.

Q. But you didn’t like living there so much, did you?

A. Yeah, because of the horses.

Q. You liked the horses.

A. (No response).

Q. But did you tell Officer Weaver that you didn’t like all
   the rules?

A. Yeah.

Q. But you liked living with Aunt Delilah because she let
   you do what you wanted?

A. Yes, but not all the time.

Q. Not all the time. Okay. And do you remember talking
   to officers in February of that year, a few months before
   you talked to Officer Weaver?


                                6
                    STATE V. CRABTREE

                   McCullough, J., dissents




A. No.

Q. Do you remember telling the officer in Durham that a
   black man had had sex with you, too?

A. Yes.

Q. Was that a truth or a lie?

A. A truth.

Q. That was the truth?

A. (Witness nods yes).

Q. Do you know what officer you told? Do you remember
   who you told about that?

A. No.

Q. Okay. But that was a few months before you talked
   with Officer Weaver?

A. Yes.

Q. Okay. Does your step-grandfather, Mr. Crabtree, have
   any physical problems that you know about?

A. Yes.

Q. Can you tell us what they are?

A. Um, my grandma said that he was mentally crazy.

Q. Do you know if he had a heart attack?

A. Yes.

Q. Do you know if he had cancer?


                                7
                   STATE V. CRABTREE

                   McCullough, J., dissents




A. No.

Q. Were you able to tell if he had a hard time walking?

A. Yes.

Q. Did he sometimes have a hard time walking?

A. Yes.

Q. Were you able to tell if he had a hard time with his
   hands sometimes?

A. No.

Q. You couldn’t tell it was hard for him to grab ahold of
   things?

A. No.

Q. Okay. Do you ever remember him having a job?

A. Yeah.

Q. What was his job?

A. Um, cutting wood. Trees.

Q. Was that a long time ago?

A. No.

Q. Is that a few years ago?

A. No.

Q. Was it before he had the heart attack?

A. I guess.


                              8
                                   STATE V. CRABTREE

                                McCullough, J., dissents




             Q. Pardon?

             A. I guess.

             Q. Okay. You don’t live with your grandma, Mildred, any
                more. Is that right?

             A. Yes.

             Q. Why is that?

             A. Because, um, she couldn’t take care of us no more.

             Q. Okay. Did you tell people things about her?

             A. Yes.

             Q. Were they true or were they a lie?

             A. Some were a lie.

             Q. Why did you tell those lies?

             A. Because I didn’t want to live with her no more.

             Q. So, is it fair to say you told lies in the past when you
                wanted to move somewhere else?

             A. Yes.

      With a child under the age of 13 testifying that she had actually accused her

own brothers of rape, just to go live with an aunt who had few rules presents the

prosecutor with a very difficult situation. The observations of the grandmother and

brother are helpful but they do not constitute a first degree sex offense although they

clearly provide sufficient evidence to sustain the indecent liberties charges. Thus,


                                           9
                                  STATE V. CRABTREE

                                 McCullough, J., dissents



L.R.’s statement about fellatio which is the basis of the first degree sex offense charge

depends solely on L.R.’s credibility. Of course, the jury could conclude that any person

who would do what the grandmother observed probably did everything else. I prefer

to believe that jurors do not jump to such assumptions and base their verdict on the

evidence actually introduced at trial.


      Consequently, I believe that the observations are important but insufficient to

sustain the first degree sex offense charges and that the expert’s testimony prejudiced

defendant. A young woman under the age of 13 who will accuse her brothers of rape

is going to have severe credibility problems. I believe an expert who vouches for the

victim’s credibility was of great assistance in persuading the jury to believe that she

had performed fellatio as she described it to the investigators.           Therefore, I

respectfully dissent.




                                           10
