An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-988
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 April 2014

STATE OF NORTH CAROLINA

      v.                                      Catawba County
                                              No. 11 CRS 5731

WILLARD MARSHALL TAYLOR, JR.



      Appeal by defendant from judgment entered 7 March 2013 by

Judge   Timothy     S.    Kincaid    in   Catawba    County    Superior     Court.

Heard in the Court of Appeals 19 February 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Jill A. Bryan, for the State.

      Dianne Jones McVay, for defendant-appellant.


      HUNTER, Robert C., Judge.

      Defendant Willard Marshall Taylor, Jr. appeals the judgment

entered after a jury found him guilty of one count of taking

indecent liberties with a child.               On appeal, defendant argues

that:      (1) the trial court committed plain error when it allowed

a physician’s assistant and an investigator for Child Protective

Services     to   testify    about     statements     made    to   them    by   the

victim’s mother, (2) the trial court committed plain error by
                                            -2-


allowing      a    State’s      witness       to     vouch     for     the    victim’s

credibility,       and   (3)    the    trial      court    erred     when    it   denied

defendant’s motion to dismiss for insufficiency of the evidence.

       After careful review, we find no error.

                                      Background

       On 1 August 2011, defendant was indicted in Catawba County

on     one    count      of     taking       indecent        liberties       with    his

granddaughter, M.T.            The offense was alleged to have occurred

between 1 November and 31 December 2010 when M.T. was five years

old.

       The   State’s     evidence      at    trial    tended    to    establish      the

following:        M.T.’s parents, Brad—defendant’s son—and Cara,1 were

separated and living apart in October 2009.                     At the time of the

alleged      abuse,   Brad     resided      with   defendant.         Although      M.T.

continued to reside with Cara, an informal custody agreement

provided that Brad would keep M.T. every other weekend.

       Sometime around the end of 2010 and the beginning of 2011,

after a weekend visit with Brad, Cara first became concerned

about M.T.’s behavior after M.T. refused to allow her in the

bathroom to help her shower or dry off.                    Cara also claimed that

M.T. began “humping” a stuffed animal.                    M.T. allegedly told Cara

that her vaginal area hurt and burned.                    After one weekend visit,

1
  For purposes of this opinion, to protect the identity of the
minor child, we have used initials and pseudonyms for the victim
and her parents.
                                           -3-


Cara examined M.T. and saw vaginal discharge; M.T.’s vagina also

appeared “really red.”           When Cara asked M.T. what happened, M.T.

responded that defendant put his finger in her “rose.”                                    M.T.

referred to her genital area as her “rose.”

      On    4    February    2011,        Cara     took    M.T.        to     Gary     Poston

(“Poston”), a physician’s assistant at a local medical clinic.

Poston     testified      that   Cara     told     him    that    M.T.        accused     her

grandfather of putting his finger in her vagina.                            After learning

of the possibility of sexual abuse, Poston declined to examine

M.T.; instead, he          referred Cara         to the Department of Social

Services (“DSS”) for follow-up as he had been trained to do in

alleged sexual abuse situations.

      After leaving the clinic, Cara took M.T. directly to the

Newton Police Department where she met with Child Protective

Services’ investigators Thomas Neff (“Neff”) and Brian Cloninger

(“Cloninger”).          Cara told them what M.T. claimed defendant had

done.      Neff and Cloninger arranged an interview and medical exam

for M.T. at the Children’s Advocacy Protection Center (“CAPC”).

      On    9   February    2011    at     CAPC,    Beth    Osbahr          (“Osbahr”),     a

pediatric       nurse   practitioner,       performed      the     medical         exam    and

examined M.T. for signs of sexual abuse.                    Osbahr testified that

she did not observe any physical evidence of sexual abuse during

M.T.’s examination, but the time-frame between the alleged abuse

and     examination      would     make     it     unlikely       to        find     physical
                                           -4-


evidence.       After the medical exam, Neff, a trained forensic

interviewer, performed a recorded interview with M.T.; no one

else was in the room with them.                     During the interview, M.T.

claimed that defendant had touched her vagina while she was at

defendant’s home.              A recording of that interview was played to

the jury at trial.

       Following the CAPC interview and examination, Brad sought

an additional interview of M.T. in his presence, which was later

conducted by Adrienne Opdyke (“Opdyke”).                          This later interview

was conducted at the District Attorney’s office with M.T., Brad,

Opdyke, and the district attorney present.                           At trial, Opdyke

testified      as   an     expert      witness    in        the    field    of     forensic

interviewing.        She testified that M.T. told her that defendant

touched her “rose” in the bathroom of his home.                             Opdyke also

testified      as   to    the     proper   method      of    conducting       a    forensic

interview with a child.

       At trial, the following witnesses testified on defendant’s

behalf: his two sons, Brad and Justin; defendant’s wife, Rhonda;

and defendant himself.                 All four defense witnesses testified

that   after    Neff’s         interview   with   M.T.,       each    questioned         M.T.

about the alleged sexual abuse even though Neff had instructed

them   not   to.         All    four   defense    witnesses         claimed       that   M.T.

denied that defendant touched her; instead, M.T. alleged that

Cara told her to say that she had been touched.                            Brad recorded
                                          -5-


one of these conversations he had with M.T. where she claimed

that “Peepaw didn’t touch” her.                 A transcript of the recording

was    admitted      into   evidence     at     trial.        On     rebuttal,       Opdyke

testified that she had concerns about Brad’s recording of his

interview with M.T.           In her opinion, Opdyke claimed that several

of his questions were ambiguous and confusing.

       On 7 March 2013, a jury found defendant guilty on one count

of    taking    indecent      liberties       with    a    child.          Defendant      was

sentenced to a minimum of 13 months and a maximum of 16 months

imprisonment.         The     trial    court       suspended       the     sentence,      and

defendant      was   placed    on     supervised      probation          for    36   months.

Defendant gave notice of appeal in open court.

                                         Discussion

     A. Hearsay

       Defendant      first    argues    the       trial     court    committed        plain

error    by    admitting       testimony       that       constituted          inadmissible

hearsay.       Specifically,        defendant        contends      that     Poston’s      and

Neff’s testimony concerning statements Cara made to them about

what M.T. had told her constituted double hearsay.                         We disagree.

       Defendant      did   not     object    at     trial    to     the    admission      of

Poston’s or Neff’s testimony; thus, the trial court’s admission

of    their    statements      is    reviewed       for    plain     error,       State    v.

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

error to constitute plain error, a defendant must demonstrate
                                         -6-


that a fundamental error occurred at trial. To show that an

error was fundamental, a defendant must establish . . . the

error    had    a   probable    impact    on    the    jury’s    finding       that   the

defendant was guilty.”          Id. (citations and quotations omitted).

       “Hearsay     is   a   statement,        other    than    one     made    by    the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”                           State v.

Stanley, 213 N.C. App. 545, 552, 713 S.E.2d 196, 201 (2011).

               When evidence of such statements by one
               other than the witness testifying is offered
               for a proper purpose other than to prove the
               truth of the matter asserted, it is not
               hearsay and is admissible. Specifically,
               statements of one person to another are
               admissible to explain the subsequent conduct
               of the person to whom the statement was
               made.

State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990)

(internal citations and quotation marks omitted).

       Defendant     challenges     the    testimony       of    Poston        and    Neff

concerning statements Cara made to them about things M.T. had

told     her.        Specifically,       defendant       claims        that     Poston’s

testimony that Cara told him that M.T. told her “pawpaw had

touched her in the vaginal area and rubbed her very hard” and

Neff’s    testimony      that   Cara     told   him    that     M.T.    claimed       that

defendant “had touched [M.T.] in a private part” constituted

inadmissible double hearsay.               However, neither Cara’s out-of-

court statements to them nor M.T.’s out-of-court statements to
                                        -7-


Cara constituted hearsay because neither were offered at trial

as substantive truth that defendant had touched M.T.                     Instead,

these statements were offered for a purpose other than asserting

the truth of the matter asserted; they were used to explain

subsequent   actions      by   Poston   and   Neff.     Specifically,       these

statements explained why Poston referred Cara to DSS and why

Neff    initiated    an    investigation      into     the     alleged     abuse.

Therefore,   since      neither   Poston’s     nor    Neff’s    testimony     was

offered to prove the truth of the matter asserted, the out-of-

court statements by M.T. and her mother were not hearsay, and

the trial court did not err, much less commit plain error, in

admitting Poston’s and Neff’s testimony.

  B. Opdyke’s Testimony Regarding M.T.’s Credibility

       Defendant next argues the trial court committed plain error

when it allowed the State’s expert witness to vouch for M.T.’s

credibility.    We disagree.

       “If scientific, technical or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge,     skill,     experience,     training,     or     education,     may

testify thereto in the form of an opinion.”             State v. Green, 209

N.C. App. 669, 675-76, 707 S.E.2d 715, 720 (2011); N.C. R. Evid.

702(a).    However, “[i]t is fundamental to a fair trial that the

credibility of the witnesses be determined by the jury . . .
                                       -8-


[and thus] an expert’s opinion to the effect that a witness is

credible, believable, or truthful is inadmissible.”                        State v.

Boyd, 200 N.C. App. 97, 103, 682 S.E.2d 463, 468 (2009) (quoting

State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496

(1995)).

    Defendant argues his case is similar to State v. Giddens,

199 N.C. App. 115, 121-22, 681 S.E.2d 504, 508 (2009), where

this Court held that the trial court committed prejudicial error

when the State’s witness, a DSS investigator, testified that her

investigation “substantiated” that the defendant had committed

the crime. See also State v. Couser, 163 N.C. App. 727, 730-31,

594 S.E.2d 420, 422-23 (2004)             (holding that the trial court

committed prejudicial error when the expert witness testified

after   speaking    with   the    child   that       the   child    was    “probably

sexually    abused”);   State     v.   Ryan,    __    N.C.   App.    __,    __,   734

S.E.2d 598, 604 (2012) (concluding the trial court committed

prejudicial error by allowing the expert witness to testify that

“she was not concerned that the child was ‘giving a fictitious

story’”).          Defendant     contends      Opdyke      substantiated      M.T.’s

testimony through her description of her forensic interview with

M.T. and her analysis of Brad’s recorded interview with M.T.

    However, unlike Giddens where the DSS investigator actually

said she “substantiated” that defendant was guilty, 199 N.C.

App. at 121-22, 681 S.E.2d at 508, or other cases where an
                                      -9-


expert testifies as to the credibility of the victim, Opdyke

never provided her expert opinion that M.T. had been truthful

during their interview.       Opdyke testified as follows:

           Q:    What    is     the   goal   of    the   forensic
           interview?

            A:   To allow the child to talk about an
           event, if it happened, in their own words
           without   leading.     And  it  has   to  be
           developmentally correct, so I’m going to the
           use terms and words that a six-year-old may
           use.

            Q: What efforts are made to try to get the
           truth from the child?

            A:      Just  by   asking  the  open-ended
           questions, real open questions.   You know,
           the best is when a child tells you the
           narrative form where you’re not asking this
           -- you know, asking specific questions but
           open questions, Tell me what happened or
           tell me more about that, and then it comes
           directly from the child.

           Q:   Now, specifically about the interview
           you did with [M.T.].    Please describe what
           you remember of the interview and what you
           did and, of course, what the child told you.

           A:    Okay . . . I asked her to tell me about
           the   event that happened with her pawpaw. And
           she   told me about pawpaw touching her rose
           and   happening in the bathroom.

Opdyke never testified as to her opinion of M.T.’s truthfulness

or credibility; instead, she testified as to how she conducted

her interview and what M.T. told her.             Thus, her testimony does

not   constitute   the   type    of   victim      substantiation    found   in

Giddens, Couser, or Ryan.        Accordingly, the trial court did not
                                        -10-


err, much less commit plain error, in allowing her testimony

into evidence.

  C. Motion to Dismiss

    Next, defendant argues the trial court erred by denying his

motion     to     dismiss     for      insufficiency      of     the     evidence.

Specifically, defendant contends that the State did not present

sufficient evidence that defendant touched M.T. for the purpose

of arousing and gratifying his sexual desires.                 We disagree.

    “The        denial   of   a   motion       to   dismiss    for     insufficient

evidence    is    a   question    of   law,    which   this    Court    reviews   de

novo.”     State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615,

621 (2007) (citations omitted).               A motion to dismiss is reviewed

for “whether the State presented substantial evidence of each

element of the offense and defendant’s being the perpetrator.”

State v. Hernandez, 188 N.C. App. 193, 196, 655 S.E.2d 426, 429

(2008) (quotations omitted).

    Here, defendant was charged with taking indecent liberties

with a child in violation of N.C. Gen. Stat. § 14-202.1.                          The

essential elements required for conviction under N.C. Gen. Stat.

§ 14-202.1 are:

            (1) the defendant was at least 16 years of
            age; (2) he was five years older than his
            victim; (3) he willfully took or attempted
            to take an indecent liberty with the victim;
            (4) the victim was under 16 years of age at
            the time the alleged act or attempted act
            occurred;  and   (5)  the   action  by   the
                                        -11-


               defendant was for the purpose of arousing or
               gratifying sexual desire.

State v. Thaggard, 168 N.C. App. 263, 282, 608 S.E.2d 774, 786-

87 (2005); N.C. Gen. Stat. § 14-202.1 (2011).

       Defendant only challenges the third and fifth elements on

appeal.     First, defendant argues that the State did not present

substantial evidence that he willfully took an indecent liberty

with     M.T.      This     Court    has    continuously      held   that    “[t]he

uncorroborated testimony of the victim is sufficient to convict

under N.C.G.S. § 14-202.1 if the testimony establishes all of

the elements of the offense.” State v. McClary, 198 N.C. App.

169, 175, 679 S.E.2d 414, 419 (2009) (quoting State v. Quarg,

334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993)).                    During defendant’s

trial, M.T. testified that defendant pulled down her pants and

put his finger in her vagina while M.T. was visiting defendant’s

home.     Moreover, the State provided additional witness testimony

that corroborated M.T.’s allegations.               Thus, the State presented

substantial evidence that defendant willfully took an indecent

liberty with M.T.

       Next,     defendant     argues       the    State   failed    to     present

substantial evidence that his actions were for the purpose of

sexual     arousal    or     gratification.           “The    requirement       that

defendant’s       actions     were    for    the    purpose    of    arousing    or

gratifying sexual desire may be inferred from the evidence of
                                      -12-


the defendant’s actions.”        McClary, 198 N.C. App. at 174, 679

S.E.2d at 419 (holding an inference of sexual gratification was

not in error when defendant only sent the victim letters but

never   had   sexual    intercourse    with    the   victim).        Here,   M.T.

testified that defendant actually carried out the sexual act of

inserting his finger into M.T.’s              vagina.      Such evidence was

sufficient to permit the jury to infer that defendant’s purpose

in doing so was to arouse himself or to gratify his sexual

desire.     See generally State v. Rogers, 109 N.C. App. 491, 505-

06, 428 S.E.2d 220, 228-29 (1993) (holding the evidence that the

defendant     touched   the   victim’s       chest   and   vaginal    area   was

sufficient to permit the jury to infer that the                      defendant’s

purpose in doing so was to arouse himself or to gratify                       his

sexual desire).

                                Conclusion

    Based on the foregoing reasons, defendant’s trial was free

from error.



NO ERROR.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).
