An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1373
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                      Burke County
                                              No. 11 CRS 2419, 52565
LUIS GUSTAVO LICONA ROSALES



      Appeal by Defendant from judgments entered 26 April 2013 by

Judge Eric L. Levinson in Superior Court, Burke County.                       Heard

in the Court of Appeals 20 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Teresa M. Postell, for the State.

      Appellate   Defender  Staples   S.   Hughes,  by                  Assistant
      Appellate Defender Anne N. Gomez, for Defendant.


      McGEE, Judge.


      Luis Gustavo Licona Rosales (“Defendant”) was found guilty

on two counts of first-degree statutory rape or sex offense.

Defendant received two active sentences of 160 months to 201

months, to run consecutively.           Defendant appeals.

      The State’s evidence at trial tended to show that Defendant

first met the alleged juvenile victim (“the child”) in 2010, at
                                          -2-


the home of the child’s aunt, when the child was thirteen years

old.     After Defendant became a friend of the child’s mother and

stepfather, he saw the child more frequently.                        Defendant was

riding home from the mall one evening with the child and the

child’s     family,     when     Defendant       used   the     child’s     hand    to

“masturbat[e] himself.”              Defendant continued to see the child

regularly.       He played with the child almost every other day,

teaching the child soccer, and participating in trips with the

child’s family.

       The child testified that he saw Defendant as: “A father

figure.”        The child testified that, when he was thirteen or

fourteen years old, Defendant anally penetrated him with his

penis at the child’s apartment while the child’s parents were at

work.     Defendant began going to the child’s apartment every day.

Defendant would often watch television and pornography with the

child and talk to the child about sex, in an attempt to make the

child    feel    more   comfortable       with    sexual   contact.         Defendant

continued to anally penetrate the child until just after the

child turned fifteen years old.

       The child further testified he had previously been sexually

abused    when    he    was    six   or   seven    years      old   and    living   in

Honduras.       When the child was approximately fourteen years old,

he told his mother about the prior abuse in Honduras, but did

not tell her that Defendant had been abusing him.                         The child’s
                                              -3-


mother     took        him    to    Betsy    Hurd      (“Ms.      Hurd”),       a    licensed

practitioner of “trauma-focused cognitive behavioral therapy.”

The   child,       through        journal    entries,       wrote     about     Defendant’s

abuse, which indicated what Defendant had allegedly done to him.

After reading the child’s journal entries, Ms. Hurd reported the

information to the child’s mother, contacted the police, and

arranged      a    medical         interview.        Defendant        was   arrested        and

charged with two counts of first-degree statutory sexual offense

and two counts of indecent liberties with a child.                                  Defendant

pleaded not guilty to all four charges.                       Defendant was convicted

on both first-degree statutory sexual offenses and was found not

guilty on the two charges of indecent liberties.                                    Defendant

appeals.

                                                 I.

      In Defendant’s first argument, he contends the trial court

committed     error,         or    plain    error,    when       it   allowed       an   expert

witness for the State to testify that her physical examination

of the child was consistent with the child’s testimony, thereby

improperly bolstering the credibility of that testimony.                                     We

disagree.

      Elizabeth Browning (“Ms. Browning”), was a registered and

certified         nurse      “for    adult[,]        adolescent       . . .     and       . . .

pediatric sexual assault nursing.”                         Ms. Browning testified at

trial,   as       an    expert,      regarding       her    31    August    2011         medical
                                 -4-


interview and physical examination of the child.         Ms. Browning

testified that her physical examination of the child did not

yield any physical evidence of abuse; however, Ms. Browning also

testified that many victims of sexual abuse do not show signs

during   their   physical   examinations   because   those    kinds   of

injuries tend to heal very quickly.        Ms. Browning gave, inter

alia, the following testimony relevant to this appeal:

          Q   And when you performed that [physical]
          examination on [the child], what were the
          findings that you made on that exam?

          . . . .

          A I looked at [the child’s] anus. And [the
          child] had normal anal tone, which is what
          we look at, and [the child] didn't have any
          fissures or scars that I noted.

          Q    Now, what does that mean,        that   [the
          child] had normal anal tone?

          A   Just means that it doesn't gape open,
          that [the child] had what we would call a
          positive anal wink, which is that the
          sphincter works correctly. It will open and
          shut the way it's supposed to.

          Q Now, ma'am, do you have an opinion as to
          whether your findings on physical exam were
          consistent    with   both    [the    child]'s
          disclosure to you at the Gingerbread House,
          and [the child’s] testimony here today?

                 [Defendant]: I'll object, Your Honor.

                 THE COURT: You all want to approach for
                 a moment?

                 (Bench conference with [the State] and
                 [Defendant].)
                      -5-



     THE COURT: Okay. [The State]?

     [The State]: Thank you, Your Honor.

[The State]:

Q   Ma'am, do you have an opinion based on
your knowledge, training, and experience,
having conducted over 1000 such of these
exams, as to whether your physical findings
were consistent with both the disclosure
given to you by [the child] in August 2011
[at] the Gingerbread House, and with [the
child’s] testimony here in the courtroom
today?

A   I do.

Q   And what is that opinion?

A   They are consistent.

Q   Okay. Ma'am, you've said that basically
the findings about [the child]’s anus were
within normal limits.   Explain to the jury,
if you would, how that could be, if [the
child] had had anal sex with [] Defendant.

A    The anus opens and closes.       We just
talked about the sphincter.      We look for
that anal wink. It opens and closes, and it
gets really large to accommodate, such as a
large bowel movement. Also, it is a mucous
membrane.     Mucous   membranes   heal  very
quickly. It's like your mouth. If you were
to bite your tongue or your cheek, it heals
pretty quickly.    So if there had been an
injury there, it had been a while and it
could have healed.    So it's consistent to
not see anything.

. . . .

Q   Ma'am, was [the child]’s testimony today
in the courtroom consistent with what [the
child] reported to you at the Gingerbread
                       -6-


House?

A   Yes.  It was more than what [the child]
reported but yes, it was consistent.

. . . .

[Defendant]:

Q   Ma'am, you stated that [the child] had
normal anal tone and no fissures?
 
A Yes. 

Q    Can you describe to the jury what a
fissure is and what it means when there are
no fissures?
 
A Yes. A fissure is a little break in the
skin that opens up, again, if you have a
large bowel movement or there's been maybe,
possibly a trauma to that area. If there is
one, we typically don't think much about it
because again, they come from large bowel
movements or hard bowel movements.   You can
get them from constipation.         So it's
typically an unremarkable finding.    But we
still document whether we see any evidence
of one, or one that may have healed. And in
this case, [the child] had no evidence of a
fissure.

Q   In this case, you would say that there
was no visible evidence of previous injury.

A   Exactly.

. . . .

Q   There were no findings of abuse.     But
that's also consistent with non-abuse.

A   Yes.   There were no findings.

Q   Okay.   And you're saying that because
there's no findings and there's no visible
evidence of a previous injury, it's because
                                 -7-


         if there were any injuries, they could have
         healed?

         A    Yes.   They could have.

         Q   And there also could not have been any
         injuries in the first place?

         A    That’s exactly right.

    Defendant contends that Ms. Browning’s answer of: “They are

consistent”   with    the   following   testimony,   constituted   an

improper bolstering of the child’s credibility:

         Ma'am, do you have an opinion based on your
         knowledge, training, and experience, having
         conducted over 1000 such of these exams, as
         to whether your physical findings were
         consistent with both the disclosure given to
         you by [the child] in August 2011 [at] the
         Gingerbread House, and with [the child’s]
         testimony here in the courtroom today?

However, Defendant did not object to this question or to Ms.

Browning’s answer.    Defendant’s prior general objection to this

question ‒ about which no ruling appears in the record ‒ does

not preserve objection to this evidence for appellate review.

“A general objection, when overruled, is ordinarily not adequate

unless . . . it [is] clear that there is no purpose to be served

from admitting the evidence.”       State v. Jones, 342 N.C. 523,

535, 467 S.E.2d 12, 20 (1996) (citation omitted); see N.C.R.

App. P. 10(a)(1) (“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
                                        -8-


the ruling the party desired the court to make if the specific

grounds    were    not     apparent    from    the    context.       It   is     also

necessary for the complaining party to obtain a ruling upon the

party’s    request,       objection,   or   motion.”);      see   also    State    v.

Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991).

      Because Defendant did not preserve this issue for appellate

review,     but    did     specifically       argue    plain      error    in     the

alternative, we will conduct our review under the plain error

standard.     “In criminal cases, an issue that was not preserved

by objection noted at trial . . . 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).            In State v. Lawrence,

our   Supreme     Court    recently    “clarif[ied]     how    the   plain      error

standard    of    review     applies   on     appeal   to     unpreserved       . . .

evidentiary error[s].”          State v. Lawrence, 365 N.C. 506, 518,

723 S.E2d 326, 334 (2012).

            For error to constitute plain error, a
            defendant    must    demonstrate    that    a
            fundamental error occurred at trial.       To
            show that an error was fundamental, a
            defendant   must  establish   prejudice—that,
            after examination of the entire record, the
            error “had a probable impact on the jury's
            finding that the defendant was guilty.”
            Moreover, because plain error is to be
            “applied   cautiously   and   only   in   the
            exceptional case,” the error will often be
            one that “seriously affect[s] the fairness,
                                               -9-


            integrity or public reputation of judicial
            proceedings[.]”

Id. (citations omitted).                   Our Supreme Court held that, in order

to   show    prejudice       sufficient            to     establish        plain     error,     a

defendant has to show “that, absent the error, the jury probably

would   have   returned          a    different         verdict.”      Id.    at     519,      723

S.E.2d at 335.

     Defendant argues that Ms. Browning bolstered the child’s

credibility when she agreed that her "physical findings were

consistent     with       both       the    disclosure      given     to    [her]        by   [the

child] in August 2011 [at] the Gingerbread House, and with [the

child’s] testimony here in the courtroom" and that it rises to

the level of plain error.                  We disagree.

     “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).                                    “However,

otherwise      admissible             expert       testimony          is     not         rendered

inadmissible       merely             because        it     enhances          a      witness's

credibility.”      In re T.R.B., 157 N.C. App. 609, 617, 582 S.E.2d

279, 285 (2003) (citation omitted).                         “[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.”                                   State v.

Stancil,     355   N.C.          266,       267,   559     S.E.2d      788,        789     (2002)
                                              -10-


(citations omitted).               “The nature of the experts' jobs and the

experience which they possess make them better qualified than

the jury to form an opinion as to the characteristics of abused

children.”       State v. Grover, 142 N.C. App. 411, 419, 543 S.E.2d

179,    184     (2001)       (citation    omitted).             “Thus,       while    it     is

impermissible         for     an     expert,     in     the     absence       of     physical

evidence, to testify that a child has been sexually abused, it

is permissible for an expert to testify that a child exhibits

‘characteristics           [consistent        with]     abused     children.’”              Id.

(citation omitted).

       Specifically, Defendant contends that: “Browning’s expert

evidence      did    more     than    assure     the     jury    that        [the    child]’s

physical condition was consistent with his history of sex abuse;

by confirming [the child]’s version of events, [Ms. Browning’s

testimony] also identified Defendant as being the person who

abused [the child].”               However, Defendant fails to identify any

specific testimony of the child that Ms. Browning’s testimony

bolstered.          In     fact,     Defendant       cites     none     of    the     child’s

testimony     in     his     brief.      Defendant       argues       that     our    Court’s

opinion in State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367

(2009), controls this case.              We disagree.

       Streater is readily distinguishable from the present case.

In   Streater,       our     Court    found    the     trial    court     erred      when    it

allowed    an       expert    to     testify     “it    was     [the]        defendant      who
                                           -11-


repeatedly abused the victim whe[n] no such physical evidence

exist[ed].”      Streater, 197 N.C. App. at 642, 678 S.E.2d at 374.

Accordingly,      we    noted    in     part    that        “it    [was]        the   specific

identification of [the] defendant as perpetrator which crosse[d]

over the line into impermissible testimony.”                           Id.      In Streater,

the   State     asked    the     expert        if    his        medical        findings   were

consistent      with    the    “repeated       penetration          of    the     defendant’s

penis into the anal area[.]”              Id. (emphasis added).                   The expert

responded: “I think it was consistent with the findings.                                   [The

child]    may   not,    despite       having        been    anally       penetrated,       [the

child] may not have had any physical findings.”                                Id. (emphasis

added).    Not only did the State, in its question to the expert,

identify the defendant as the perpetrator, but it also asked if

the   expert’s    findings       were    consistent             with     the    sexual    abuse

having occurred.         The expert’s response, that his findings were

consistent      with     the    abuse     having           in     fact     occurred,       also

indicated that the defendant was the perpetrator of that abuse.

      In the present case, unlike the situation in Streater, the

State’s question to Ms. Browning did not directly suggest that

abuse occurred, or that Defendant was the perpetrator of that

abuse.    It is clear from Ms. Browning’s testimony that she found

no physical signs of abuse, and that the absence of physical

findings simply meant that either no abuse occurred, or that,

had abuse occurred, any injury resulting from that abuse had
                                              -12-


healed    prior     to    Ms.     Browning’s         physical        examination      of   the

child.      For     this    reason,          Ms.    Browning’s        lack    of     physical

findings     of    abuse        was    consistent         with       both    abuse    having

occurred,    and     no     abuse       having       occurred.          Nothing      in    Ms.

Browning’s        testimony       suggests          she    was       agreeing      with     or

bolstering    the        child’s       identification           of    Defendant      as    the

perpetrator of the abuse.                   Ms. Browning clearly testified that

she did not observe any signs of physical abuse; she did not

testify    that     abuse       had    in    fact     occurred,        and   she     did   not

identify Defendant as the perpetrator.

    Based on these facts, we cannot say, even assuming error,

that the error probably caused the jury to return a different

verdict    than     it    would       have    absent      the    alleged     error.        See

Lawrence, 365 N.C. at 519, 723 S.E.2d at 335.                                Defendant has

failed to show that any error related to the admission of this

testimony rises to the level of plain error.

                                              II.

    In Defendant’s second argument, he contends the trial court

erred by instructing the jury that a witness for the State was a

“fact witness,” thereby improperly expressing an opinion as to

the credibility of the witness’ testimony.                       We disagree.

    “The judge may not express during any stage of the trial,

any opinion in the presence of the jury on any question of fact

to be decided by the jury.”                  N.C. Gen. Stat. § 15A-1222 (2013).
                                        -13-


Additionally, “[i]n instructing the jury, the judge shall not

express an opinion as to whether or not a fact has been proved

and shall not be required to state, summarize or recapitulate

the evidence, or to explain the application of the law to the

evidence.”      N.C. Gen. Stat. § 15A-1232 (2013).                   “A defendant's

failure to object to alleged expressions of opinion by the trial

court in violation of [N.C.G.S.                §§   15A-1222, 1232] does not

preclude his raising the issue on appeal.”                  State v. Young, 324

N.C.   489,    494,   380     S.E.2d   94,   97     (1989).        “‘In    evaluating

whether a judge's comments cross into the realm of impermissible

opinion, a totality of the circumstances test is utilized.’”

State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (1999)

(citation      omitted).        “A     new   trial     is     not     required     if,

considering     the   totality of the circumstances under                  which   [the

instructions] w[ere] made, defendant fails to show prejudice.”

State v. Rushdan, 183 N.C. App. 281, 284, 644 S.E.2d 568, 571

(2007).

       Ms.    Hurd,   a     licensed    practitioner          of     “trauma-focused

cognitive      behavioral       therapy[,]”         testified         concerning      a

“comprehensive trauma assessment[,]” she conducted of the child.

Ms. Hurd also testified about her determination, based on that

assessment, that she could help the child.                     During Ms. Hurd’s

testimony,     the    trial    court    directed      the     jury    to    exit   the

courtroom.      During a bench conference, the trial court noted
                                     -14-


that   Ms.   Hurd’s    testimony    was    “getting   into   some   worrisome

waters.”       After   discussing    Ms.    Hurd’s    testimony     with   both

parties, the trial court decided that, when the jury returned,

it would “clean this [issue] up a little bit.”                When the jury

returned to the courtroom, the trial court gave the following

instruction:

             Ladies and gentlemen, at the beginning of
             the testimony, this witness testified in
             part that -- as a part of the protocols at
             this place that she was describing, that
             they   do    something   called   a   trauma
             assessment.   And then if they decide that
             they can quote, “help someone,” they will go
             forward and do so. Ladies and gentlemen,
             that is not meant as a suggestion in any
             way, and you are not to receive it, in any
             way, as an opinion by this witness about
             whether these events occurred or did not
             occur.

             This witness is not qualified, and she is
             not competent to testify as to whether or
             not any event, be it in Honduras or here in
             Burke County, occurred or did not occur.
             That is a question for the jury.      And so
             you're not to consider that testimony as a
             suggestion that this witness is giving you
             an opinion about whether or not these events
             occurred or did not occur.

             . . . .

             Secondly,   she  indicated   that,   I  think
             briefly but in passing, that maybe she
             observed or didn't observe, I don't remember
             behaviors or conduct that may have been or
             may not have been consistent with PTSD,
             post-traumatic stress disorder.    You are to
             omit    that    from    your    consideration
             completely. She's not qualified to give you
             that sort of opinion in the courtroom, for
             you.   And so you're not to consider that
                                    -15-


             particular testimony.    It is ultimately a
             question for the jury as to whether or not
             the allegations here occurred or did not
             occur,   beyond   a   reasonable  doubt   or
             consistent with whatever instructions I give
             you at the close of the case.

             But she is what we call a fact witness. As
             lawyers, we call her a 701 witness.       It
             doesn't mean anything to you.   But she's a
             fact witness, and she's properly here with
             us. Clearly, she has some engagements, you
             know, with the young man who testified
             earlier, and -- sure that both lawyers will
             be asking this witness questions.     So she
             will be testifying about the -- whatever the
             interactions she had with him, and everybody
             sort of understands the instructions I've
             given you so far, just sort of give you
             another signal. (Emphasis added).

After closing arguments, the trial court gave, inter alia, the

following instruction:

             The law requires the presiding judge to be
             impartial.   You should not infer from any
             statement I have made, any question I may
             have asked, or anything else I may have said
             or done during the course of the trial, to
             suggest to you that any evidence should be
             believed or disbelieved, that a fact has
             been proved or not proved, or as to what
             your findings ought to be. It is your duty
             to find the facts and to render a verdict
             reflecting the truth.

    In this case, it is clear from the evidence that Defendant

has failed to show prejudice.       The trial court’s instructions to

the jury, viewed in the totality of the circumstances, did not

express any opinion as to the validity of Ms. Hurd’s testimony.

There   is   nothing   in   the   evidence   to   suggest,   contrary   to

Defendant’s argument, that Ms. Hurd “was some sort of special
                                          -16-


witness” who “would be giving the jury the true facts of what

occurred.”        To   the    contrary,    the    trial   court’s   instructions

specifically stated, “you're not to consider that testimony as a

suggestion that this witness is giving you an opinion about

whether or not these events occurred or did not occur.”                       Even

assuming, arguendo, the trial court erred in referring to Ms.

Hurd    as   a    “fact      witness,”    Defendant       has   failed   to   show

prejudice.       This argument is overruled.

                                           III.

       In Defendant’s third argument, he contends “the trial court

erred by allowing the State to present evidence of a sexual

encounter unrelated to this case that allegedly occurred between

Defendant and [a witness.]”          We disagree.

       A male witness (“the witness”) testified that, when he was

seventeen years old,           Defendant,    who was      a family friend and

mentor, had taken advantage of him and had anally penetrated him

after Defendant had given him alcoholic beverages until he had

passed out.

       Our Supreme Court has held:

             When the trial court has made findings of
             fact and conclusions of law to support
             its 404(b) ruling, as it did here, we look
             to   whether  the   evidence   supports  the
             findings and whether the findings support
             the conclusions.     We review de novo the
             legal conclusion that the evidence is, or is
             not, within the coverage of Rule 404(b). We
                                    -17-


           then review the   trial    court's Rule               403
           determination for abuse of discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159

(2012).    The    trial   court   found,     in    determining    whether    the

evidence would be admissible under N.C. Gen. Stat. § 8C-1, Rule

404(b),   the     probative     value   of        the   witness’s      testimony

outweighed its prejudicial effect and was therefore admissible.

           Evidence of other crimes, wrongs, or acts is
           not admissible to prove the character of a
           person in order to show that he acted in
           conformity therewith.    It may, however, be
           admissible for other purposes, such as proof
           of      motive,     opportunity,      intent,
           preparation, plan, knowledge, identity, or
           absence of mistake, entrapment or accident.

N.C.G.S. § 8C-1, Rule 404(b) (2013).              Additionally, Rule 404(b)

is   “subject    to   but one   exception requiring       its    exclusion   if

its only probative value is to show that the defendant has the

propensity or disposition to commit an offense of the nature of

the crime charged.”        State v. Coffey, 326 N.C. 268, 279, 389

S.E.2d 48, 54 (1990).

           “It is not required that evidence bear
           directly on the question in issue, and
           evidence is competent and relevant if it is
           one of the circumstances surrounding the
           parties, and necessary to be known, to
           properly   understand   their    conduct   or
           motives, or if it reasonably allows the jury
           to draw an inference as to a disputed fact.”

State v. Stager, 329 N.C. 278, 302, 406 S.E.2d 876, 890 (1991)

(citations omitted).       “The admissibility of evidence under Rule
                                         -18-


404(b) is further constrained by the requirements of similarity

and temporal proximity.”           State v. Parker, __ N.C. App. __, __,

756 S.E.2d 122, 126 (2014).

       Specifically, Defendant contends the witness’ testimony was

inadmissible       “because   it   was   dissimilar     from   the    crimes   for

which Defendant was on trial and because any slight probative

value   was     substantially      outweighed    by    the   danger    of   unfair

prejudice.”      We disagree.

       The trial court found the witness and the child to be of

“similar age,” a finding supported by the evidence: the witness

was seventeen years of age and the child was fourteen years of

age.    In addition, the trial court found “similar circumstances

with the [the witness’ and the minor’s] families,” a finding

supported     by     the    evidence      in    that    Defendant      maintained

relationships with both the child’s and the witness’ families.

The trial court also found “alignment . . . in terms of anal

intercourse,” a finding supported by the evidence that Defendant

allegedly had anal intercourse multiple times with the child and

at one time had anal intercourse with the witness.                    Lastly, the

trial   court    found     “alignment    with   [Defendant’s]     counselor     or

mentor role[]” to the witness and the child, a finding supported

by the evidence, where the child referred to Defendant as a

father figure, and the witness saw Defendant as a counselor and

mentor. We hold that the trial court did not err in concluding
                                        -19-


that the witness’ 404(b) testimony is similar to the alleged

crime, “in terms of showing a pattern and practice, [and] in

terms     of     showing     opportunities         to      take        advantage      of

circumstances                          and                          individuals[.]”

      Because        we    determined        the     witness’          testimony      is

sufficiently similar to the alleged crime, and Defendant does

not dispute the temporal proximity, “we now review the trial

court’s    Rule      403   determination       for      abuse     of     discretion.”

Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 160.

      “Here ‘a review of the record reveals that the trial court

was   aware     of   the   potential    danger       of    unfair       prejudice     to

defendant and was careful to give a proper limiting instruction

to the jury.’”        Id. (quoting State v. Hipps, 348 N.C. 377, 406,

501 S.E.2d 625, 642 (1998)).             The trial court first heard the

witness’ testimony during voir dire, outside the presence of the

jury.     The trial court determined the witness’ testimony was

clearly probative, and had taken the “danger of undue prejudice

. . .   into     account.”     Additionally,         the   trial       court   gave    a

limiting instruction to the jury.


               Given the similarities between the accounts
               of the victim and the 404(b) witness and the
               trial   judge's  careful   handling  of   the
               process, we conclude that it was not an
               abuse of discretion for the trial court to
               determine   that   the   danger   of   unfair
               prejudice did not substantially outweigh the
               probative value of the evidence.
                                              -20-



Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 161.                          This argument

is without merit.

                                              IV.

      In Defendant’s fourth argument, he contends the trial court

committed       plain    error        “by     allowing     the     State       to   present

inadmissible       victim       impact        and     opinion      evidence[.]”             We

disagree.

      When   the    child       was    asked       why   the   State     had    asked      the

child’s mother to leave the courtroom during his testimony, the

child     responded      that     he    was       uncomfortable         discussing        what

Defendant had done to him in front of his mother.                                The child

also testified that, after Ms. Hurd told the child’s mother what

had happened, the child’s mother “went in[to] depression[,]” and

“takes medicine for it.”

      Because      Defendant      did       not     preserve     this    issue      for    our

review,    we     will   conduct        our       review   under    the     plain     error

standard.       Our Supreme Court has held that, in order to show

prejudice sufficient to establish plain error, a defendant has

to show “that, absent the error, the jury probably would have

returned a different verdict.”                    Lawrence, 365 N.C. at 519, 723

S.E.2d at 335.

      Specifically, Defendant contends “evidence of the impact of

the     alleged    crimes       on     [the       child]’s      mother     was      clearly
                                            -21-


inadmissible          during   the      guilt      phase       of   Defendant’s     trial,

[because]       it    was    not    relevant       to    Defendant’s       guilt.”      In

addition, Defendant argues “[t]he evidence was also inadmissible

because    it    comprised         an   opinion         that    [the    child’s    mother]

believed [the child]’s allegations were credible.”

    Assuming, arguendo, the trial court erred by admitting the

challenged testimony, Defendant fails to show “that, absent the

error,    the        jury    probably      would     have       returned    a    different

verdict.”       Id.

            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
            child[],   we   cannot  conclude   that   the
            challenged    portion   of   [the    child]'s
            testimony had any significant impact on the
            jury's decision to convict Defendant.

State v. Dew, __ N.C. __, __, 738 S.E.2d 215, 219 (2013), disc.

review    denied,       __   N.C.    __,    743    S.E.2d       187    (2013).     Because

Defendant has failed to show prejudice sufficient to establish

plain error, this argument is overruled.

                                             V.

    In Defendant’s final argument, he contends the trial court

erred by failing to find as a mitigating factor that “Defendant

had a positive employment history or was gainfully employed.”

We disagree.
                                        -22-


       “A    sentencing    judge     must    find      a    statutory        mitigating

sentence factor if it is supported by a preponderance of the

evidence.      A mitigating factor is proven when the evidence is

substantial, uncontradicted[,] and there is no reason to doubt

its credibility.”         State v. Kemp, 153 N.C. App. 231, 241, 569

S.E.2d 717, 723 (2002) (internal quotation marks and citations

omitted).      However,     our     Court    has     held,    “a   defendant         may,

pursuant to N.C. Gen. Stat. § 15A-1444(a1), appeal the issue of

the sufficiency of the evidence to support his or her sentence

even though he or she was sentenced in the mitigated range.”

State v. Mabry, __ N.C. App. __, __, 720 S.E.2d 697, 702 (2011).

      During sentencing, “[a] trial judge is given wide latitude

in   determining    the   existence     of     . . .       mitigating    factors[.]”

State v. Norman, 151 N.C. App. 100, 105-106, 564 S.E.2d 630, 634

(2002) (quotation marks and citations omitted).                       In order for

Defendant     to   demonstrate      a   positive       employment        history      or

gainful     employment     as   a    mitigating        factor,     Defendant         must

present     specific    details.    Mabry,     ___     N.C.    App.     at    ___,    720

S.E.2d at 704.         “An appellate court may reverse a trial court

for failing to find a mitigating factor only when the evidence

offered in support of that factor ‘is both uncontradicted and

manifestly credible.’”          Id. __ N.C. App. at __, 720 S.E.2d at

702 (citation omitted).
                                    -23-


       Specifically, Defendant argues “all of the evidence showed

that    Defendant   had   a   positive     employment   history     and   was

gainfully employed until the time of his arrest.”          We disagree.

       At trial, the testimony tended to show that Defendant came

from New Orleans to work at “Aqua Spring” in Morganton, and

Defendant    sent   money     to   Honduras    to   support   his     child.

Nevertheless,

            the    [Defendant’s]    employment   history
            testimony does not necessarily establish
            continuous employment, the numbers of hours
            [D]efendant was working, or what []he was
            paid.   Given the lack of details regarding
            [D]efendant's employment history or the
            quality of h[is] performance, we cannot
            conclude that the trial court was required
            to find either that [D]efendant had a
            positive employment history or that []he was
            gainfully   employed   within   the  meaning
            of N.C.G.S. § 15A-1340.16(e)(19).

Mabry, __ N.C. App. at __, 720 S.E.2d at 704.           This argument is

without merit.

       No error.

       Judges ELMORE and DAVIS concur.

       Report per Rule 30(e).
