An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                NO. COA14-340
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


STATE OF NORTH CAROLINA

       v.                                     Jackson County
                                              Nos. 13 CRS 146-47
CHRISTOPHER MEEKS



       Appeal by Defendant from judgments entered 9 October 2013

by Judge Marvin P. Pope, Jr., in Jackson County Superior Court.

Heard in the Court of Appeals 27 August 2014.


       Attorney General Roy Cooper, by Special                   Deputy    Attorney
       General Olga Vysotskaya, for the State.

       Appellate   Defender  Staples   S.   Hughes,  by   Assistant
       Appellate Defender Jason Christopher Yoder, for Defendant.


       STEPHENS, Judge.


                    Evidence and Procedural Background

       Defendant Christopher Meeks appeals from judgments entered

upon his conviction of two counts of indecent liberties with a

child.      The evidence at trial tended to show the following:                   In

late   2010,    Defendant     began    dating    “Jan,”    the    mother    of   two
                                         -2-
daughters, “Elizabeth” and “Ellen.”1              In late December 2012, Jan

and her daughters, then ages eight and five, respectively, were

living with Defendant.         Jan and Defendant had been fighting a

great deal and were in the process of ending their relationship.

On 23 December, Jan took a Xanax and fell asleep on the sofa.

At the girls’ grandmother’s home the next evening, Ellen told

her   mother   that   the    girls   had       showered   with   Defendant    that

morning.   Jan questioned Defendant over the phone about Ellen’s

report, and Defendant denied showering with the girls.                       Later

that night, the girls told Jan about                  an additional incident

which had occurred on 23 December:

           Q.   Okay.       What   did    they    tel1    you   on   the
           ride home?

           A.   That [Defendant] had got out [of] the
           shower the night before and was laying on
           the bed, and [E11en] kept shaking him and
           shaking him and like over and over and over.
           And then that they touched his pee-pee.

           Q.   Okay.   And did they tell you anything
           else that had happened once they had touched
           his pee-pee?

           A.   They told me that he had special pee
           come out.




1
  To protect the identities of the minor victims in this case, we
use pseudonyms to refer to the girls and their mother.        See
N.C.R. App. P. 4(e).
                                              -3-
Jan    reported     the      girls’    claims       to    their     father         and   to    the

Jackson     County       Sheriff’s     Department          (“JCSD”).          Elizabeth        and

Ellen were examined at Mission Children’s Hospital on 3 January

2013   by   a     team    which      included       Cindy      McJunkin,       a    registered

nurse; Melissa Lillie, a licensed clinical social worker; and

Dr. Cynthia Brown, who later testified as an expert in child

abuse pediatrics.

       Defendant was indicted on four counts of indecent liberties

with    a   child,       two    stemming      from       the    alleged       events     of     23

December     2012      and     two   based     on    the       alleged    incident        on    24

December 2012.           The jury acquitted Defendant of the 24 December

charges     and    found       him   guilty    of    those       which    occurred        on   23

December.         The trial court sentenced Defendant to consecutive

21-35 month terms in prison but suspended the second term upon

service of 36 months of supervised probation.                                 Defendant gave

notice of appeal in open court.

                                           Discussion

       Defendant argues that the trial court erred in (1) allowing

Dr.    Brown      to     vouch       for     the    credibility          of     Ellen’s        and

Elizabeth’s        disclosures         and     (2)       admitting        as       substantive

evidence hearsay statements the girls allegedly made to their
                                         -4-
mother, as well as Jan’s written statement to the JCSD which

contained additional hearsay statements.             We find no error.

I. Vouching by Dr. Brown

       Defendant   first     argues     that   the   trial    court     improperly

allowed Dr. Brown to vouch for the credibility of Ellen’s and

Elizabeth’s disclosures.         We disagree.

       Specifically, Defendant contends that the following three

statements by Dr. Brown constituted improper vouching:                         that

Elizabeth (1) “certainly demonstrated knowledge of sexual acts

beyond her developmental level” and that Ellen (2) “falls into

the category of a child who is very much struggling with talking

about what happened[,]” and eventually (3) “did talk around it

and at the end acknowledged that some rules were broken and that

[Defendant] lied about it and that it was true.                 But she wasn’t

able   to   articulate     the    way    her   sister   did    what     happened.”

Defendant objected to each of these statements at trial, and, on

appeal,     asserts      that     this     “testimony        amounted     to     an

impermissible      opinion       regarding     Ellen[’s]      and     Elizabeth’s

credibility and a tacit statement that Ellen and Elizabeth were

sexually abused by [Defendant].”

       A. Standards of review
                                         -5-
       We first note that, at trial, Defendant objected to Dr.

Brown’s statement about Elizabeth’s knowledge on what appears to

be   hearsay     grounds,    not    as   an    impermissible      comment     on   the

girl’s        credibility.          Defendant’s        trial     counsel      stated,

“Objection to what she would not have knowledge of.”                       Our Rules

of Appellate Procedure provide that, “[i]n order to preserve an

issue for appellate review, a party must have presented to the

trial court a timely request, objection, or motion, stating the

specific grounds for the ruling the party desired the court to

make     if    the   specific      grounds     were     not    apparent    from    the

context.”       N.C.R. App. P. 10(a)(1).              Where a defendant objects

to the admission of evidence on one basis in the trial court, he

may not argue that the admission of the evidence was erroneous

on another basis on appeal.               See, e.g., State v. Tellez, 200

N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009) (“It is well-

established that where a theory argued on appeal was not raised

before the trial court, the law does not permit parties to swap

horses between courts in order to get a better mount in the

appellate       courts.”     (citations       and     internal    quotation       marks

omitted)).       In such cases, a defendant is limited to plain error

review.       N.C.R. App. P. 10(a)(4).         Further, where

               an [evidentiary] issue is not preserved in a
               criminal case, we apply plain error review.
                                  -6-
         We find plain error only in exceptional
         cases where, after reviewing the entire
         record, it can be said the claimed error is
         a fundamental error, something so basic, so
         prejudicial, so lacking in its elements that
         justice cannot have been done.      Thus, the
         appellate court must study the whole record
         to determine if the error had such an impact
         on   the   guilt   determination,    therefore
         constituting plain error.     Accordingly, we
         must   determine  whether   the   jury   would
         probably have reached a different verdict if
         this testimony had not been admitted.

State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006)

(citations   and   internal   quotation   marks   omitted;   emphasis   in

original).

    Defendant did object to Dr. Brown’s testimony about Ellen

as improper vouching, and we consider that question de novo.

See State v. Dixon, 150 N.C. App. 46, 52, 563 S.E.2d 594, 598,

affirmed, 356 N.C. 428, 571 S.E.2d 584 (2002).          If we determine

that the testimony was vouching and thus erroneously admitted,

we must next consider whether it was prejudicial to Defendant.

Id. at 53, 637 S.E.2d at 599.

         Error is prejudicial when       there is a
         reasonable possibility that, had the error
         in question not been committed, a different
         result would have been reached at the trial
         out of which the appeal arises.    The burden
         is upon the defendant to show prejudice.
         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
                               -7-
         inadmissible, and that the admission of such
         testimony is prejudicial when the State’s
         case depends largely on the testimony of the
         prosecuting witness.

Id. (citations and internal quotation marks omitted).         In sum,

to prevail on his arguments    regarding   any of the       challenged

testimony by Dr. Brown, Defendant must show that its admission

was both erroneous and likely altered the outcome of his trial.

    B. Analysis

         It is well settled that expert opinion
         testimony is not admissible to establish the
         credibility of the victim as a witness.
         However, those cases in which the disputed
         testimony concerns the credibility of a
         witness’s accusation of a defendant must be
         distinguished    from  cases   in    which   the
         expert’s testimony relates to a diagnosis
         based on the expert’s examination of the
         witness.    With respect to expert testimony
         in child sexual abuse prosecutions, our
         Supreme Court has approved, upon a proper
         foundation,     the   admission    of     expert
         testimony      with     respect       to     the
         characteristics of sexually abused children
         and whether the particular complainant has
         symptoms       consistent       with       those
         characteristics.

         In order for an expert medical witness to
         render an opinion that a child has, in fact,
         been   sexually   abused,   the   State  must
         establish a proper foundation,        . . .
         physical evidence consistent with sexual
         abuse.    Without physical evidence, expert
         testimony that sexual abuse has occurred is
         an   impermissible   opinion   regarding  the
         victim’s credibility.
                                         -8-
State   v.   Frady,    __    N.C.    App.      __,    __,        747    S.E.2d     164,    167

(citations, internal quotations marks, and brackets omitted),

disc.   review    denied,     367    N.C.      273,        752    S.E.2d     465    (2013).

However,     “[t]he    fact    that      this        evidence          may   support       the

credibility      of    the     victim          does        not     alone      render        it

inadmissible.”        State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d

359, 367 (1987).

    Defendant urges that Dr. Brown’s “testimony in Frady was

identical to her testimony in this case.”                              We disagree.        Dr.

Brown   also   testified      as    an   expert       in    child       sexual     abuse    in

Frady, where she

             stated that [the victim]’s “disclosure” was
             “consistent with sexual abuse.” The alleged
             “disclosure” was [the victim]’s description
             of the abuse. . . . While Dr. Brown did not
             diagnose   [the   victim]    as    having   been
             sexually abused, she essentially expressed
             her opinion that [the victim] is credible.
             We see no appreciable difference between
             this statement and a statement that [the
             victim]   is   believable.       The   testimony
             neither addressed the characteristics of
             sexually   abused   children    nor   spoke   to
             whether   [the victim]     exhibited symptoms
             consistent with those characteristics.

Frady, __ N.C. App. at __, 747 S.E.2d at 167 (citation omitted;

emphasis added).       Accordingly, we held that the admission of Dr.

Brown’s testimony was error.             Id.
                                  -9-
    Here, in contrast, Dr. Brown did not testify that either of

the girls’ “disclosures” or descriptions of what occurred were

consistent with sexual abuse.       Rather, she testified about “the

characteristics   of   sexually   abused   children   [and]   spoke   to

whether [Elizabeth and Ellen] exhibited symptoms consistent with

those   characteristics.”     See    id.    The   following   exchange

occurred during Dr. Brown’s direct examination:

          Q.   Now, have you observed in your practice
          common characteristics in children that have
          been sexually abused?

          A.   Yes.

          Q.   And have you read and researched and
          had studies in children who are sexually
          abused?

          A.   Yes.

          Q.   Now, ha[ve] your research and studies
          regarding      sexual     abuse      provided
          characteristics   that   are   exhibited   by
          children who have claims of sexual abuse?

          A.   Yes.

          Q.   And what types of claims are commonly
          made?

          A.   So going, again, to how they tell when
          they do decide to tell, and this is – I’m
          going to go back to another study where they
          looked at children who they knew had been
          sexually abused because the perpetrator made
          videotapes, so on the videotapes they could
          see a number of sex acts that were performed
          on the child.   And when they compared what
                    -10-
they knew had happened on the videotape to
what the child actually told, what they
found is that most of the children only told
a little bit about what happened and did not
tell every single act that had occurred to
them.    So, again, that highlights it’s a
very difficult thing for them to tell, and
many times they only tell little bits of it
in the beginning.     A sexually abused child
may have other behaviors that are of
concern.    They may have sleeping problems.
They may regress in some other developmental
things like children who are toilet trained
may regress and have accidents. They may be
more fearful and clingy and won’t sleep
alone.       Some    children   will   exhibit
sexualized behaviors where they will act out
on peers and mimic sexual acts they have
experienced     and,    again,   demonstrating
knowledge that they shouldn’t have at that
age that tells us         that something has
happened to them.

Q.   Do you have an opinion based upon your
knowledge, experience, training and in your
professional    capacity    as   to    whether
[Elizabeth]   exhibited   characteristics   of
sexually abused children?

A.   Yes.

Q.   And what is that opinion?

A.   That    she    demonstrated,    in     our
evaluation,    characteristics    that     were
consistent   with a child who had          been
sexually abused.

Q.   And    what    are    some   of      those
characteristics?

A.   She had problems sleeping, was clingy,
very emotional.    After the — after she
started talking about what happened and had
                                     -11-
            to   experience    —   and   she   certainly
            demonstrated knowledge of sexual acts beyond
            her developmental level and was able to
            demonstrate that during her interview.   She
            certainly   had   knowledge  of   what   was
            ejaculate, which was not something that she
            would have knowledge of.

            [DEFENSE COUNSEL]: Objection          to   what   she
            would not have knowledge of.

            THE COURT:          Objection overruled.

            BY [THE STATE]:

            Q.   And how would you compare her ability
            to disclose as opposed to [Ellen]’s ability
            to talk?

            A.   So [Ellen], I think, falls into the
            category of a child who is very much
            struggling with talking about what happened.

            [DEFENSE COUNSEL]: Objection;    opinion           on
            credibility as to what happened.

            THE COURT:          Overruled.

            [A.]      She did talk around it and at the
            end acknowledged that some rules were broken
            and that [Defendant] lied about it and that
            it was true.      But she wasn’t able to
            articulate the way her sister did what
            happened.

(Emphasis   added).       Dr.    Brown   first   (1)   identified   numerous

characteristics   of     sexually-abused     children,    including   having

difficulty talking about what happened in complete detail and

“demonstrating knowledge that they shouldn’t have at that age”

and then (2) opined that both girls exhibited certain of those
                                         -12-
characteristics.         This type of testimony is permitted under our

case law and does not constitute vouching for the credibility of

the victim.       In other words, Dr. Brown did not testify that the

girls’ descriptions of what occurred were consistent with their

having been abused, which would “essentially [be an expression

of] her opinion that [Elizabeth and Ellen are] credible.”                                 See

id.      Instead,         she     testified       about        the       behaviors        and

characteristics         of   sexually-abused           children          and    identified

specific behaviors and characteristics of Elizabeth and Ellen

which   were      consistent         therewith,        to     wit,       that     Elizabeth

“certainly     demonstrated       knowledge       of    sexual       acts       beyond    her

developmental level” and that Ellen “falls into the category of

a child who is very much struggling with talking about what

happened[,]” but “did talk around it and at the end acknowledged

that some rules were broken and that [Defendant] lied about it

and   that   it   was    true.”       Because     the       testimony       was    properly

admitted, we need not consider its prejudicial impact.                                    This

argument is overruled.

II. Hearsay statements

      Defendant     next      argues     that     the       trial    court        erred    in

admitting as substantive evidence hearsay statements the girls

allegedly    made    to      their    mother,     as        well    as    Jan’s     written
                                        -13-
statement     to    the     JCSD     which    contained      additional      hearsay

statements.      We disagree.

    “‘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.”                       N.C. Gen.

Stat. § 8C-1, Rule 801(c) (2013).                In general, hearsay is not

admissible.        N.C. Gen. Stat. § 8C-1, Rule 802.                 However, our

Rules of Evidence contain numerous exceptions to this general

rule by which hearsay may be properly admitted at trial.

    Specifically,         Defendant     challenges     the     admission     of   the

following portions of Jan’s testimony on direct examination:

            Q.   Okay.   On Christmas Eve of last year,
            did one of the girls say something to you
            that took you by surprise?

            A.      Yeah.

            Q.      What — what did [she] say?

            [DEFENSE COUNSEL]:   Objection for the truth
            of the matter asserted, your Honor.

            THE COURT:          Overruled.    Go ahead.

            BY [THE STATE]:

            Q.   And what did they             tell    you    or   which
            daughter talked to you?

            A.   [Ellen] told me that they had taken a
            shower with [Defendant] that morning.

            . . . .
                     -14-


Q.   Okay.  So after you got off the phone,
did you talk with the girls anymore or what
did you do?

A.   Yeah.   I asked them if they were sure
and they told me yes.

[DEFENSE COUNSEL]:   Objection; hearsay, move
to strike.

THE COURT:   Overruled.

Q.   Repeat what you said.

A.   I just asked them      if   they   was   [sic]
sure that it happened.

Q.   And what did they say?

A.   Yes.

Q.   And did they tell you something else
after talking to you about the shower?

[DEFENSE COUNSEL]:   Objection; hearsay.

THE COURT:   Overruled.

[A.] Yes.

BY [THE STATE]:

Q.   What else?

A.   On the ride home they did.

Q.   Okay.   What did they tell you on the
ride home?

A.   That [Defendant] had got out [of] the
shower the night before and was laying on
the bed, and [Ellen] kept shaking him and
                                   -15-
          shaking him and like over and over and over.
          And then that they touched his pee-pee.

          Q.   Okay.   And did they tell you anything
          else that had happened once they had touched
          his pee-pee?

          A.   They told me that he had special pee
          come out.

          [DEFENSE     COUNSEL]:          Move    to   strike.
          Hearsay.

          THE COURT:    Overruled.

In addition, Defendant contends that Jan’s statement to the JCSD

given 25 December 2012 was hearsay and thus improperly admitted

over his hearsay objection:

          At my mother’s house, the girls, [Ellen] and
          [Elizabeth], told me that they had taken a
          shower with [Defendant] that morning while I
          was at work.     Upon questioning them, they
          told me that the night before while I was
          asleep on the couch [Defendant] took a
          shower and laid down on the bed. They told
          me [Ellen] shaked [sic] him. He only had on
          boxers.   Then they told me they touched his
          penis and his balls. When I asked why they
          touched it, [Ellen] didn’t give an answer
          and [Elizabeth] said [Ellen] made her.   And
          they also told me he had special pee come
          out onto his stomach.

    We   first   observe   that,   although      Defendant   made   several

hearsay objections during the quoted portion of Jan’s testimony,

he did not object to her statement that the girls told her

“[t]hat [Defendant] had got out [of] the shower the night before
                                            -16-
and was laying on the bed, and [Ellen] kept shaking him and

shaking him and like over and over and over.                          And then that they

touched     his    pee-pee.”            Defendant       urges      that    his    objections

constituted       a   “single      objection         to    [a]     line    of    questions.”

However,     the      transcript        reveals      that        defense   counsel      never

requested, and thus the trial court did not note, a standing or

continuing objection to this line of questioning.                                 See, e.g.,

State v. Goins, __ N.C. App. __, __, 754 S.E.2d 195, 201 (2014)

(quoting a defense counsel’s request for and a trial court’s

noting of the defendant’s standing objection to an entire line

of questioning).

     Having        failed    to     object      to        this    testimony       at   trial,

Defendant is entitled only to argue plain error.                                See State v.

Lawrence,     365     N.C.       506,    512,     723      S.E.2d     326,      330    (2012).

However, Defendant does not specifically allege plain error in

his brief.        N.C.R. App. P. 10(a)(4) (stating that, in order to

preserve an argument pursuant to plain error, the defendant must

“specifically and distinctly contend[]” the challenged ruling

amounted to plain error).                Accordingly, Defendant’s argument as

to   that    portion        of    Jan’s     testimony            is   deemed      abandoned.

Further, where the substance of challenged evidence is admitted

without objection either before or after the challenge is made,
                                            -17-
a defendant loses the effect of his objection.                                See State v.

Collins,     50    N.C.    App.    155,     158,     272    S.E.2d      603,    605    (1980)

(citation     omitted).           Thus,        we   do    not     consider      Defendant’s

argument     regarding       the        following        portion       of   Jan’s     written

statement     which       recounts       the    substance         of    her    unchallenged

testimony:        “Upon questioning them, they told me that the night

before while I was asleep on the couch [Defendant] took a shower

and laid down on the bed.                  They told me [Ellen] shaked [sic]

him. . . .        Then they told me they touched his penis . . . .”

      “When preserved by an objection, a trial court’s decision

with regard to the admission of evidence alleged to be hearsay

is reviewed de novo.”              State v. Johnson, __ N.C. App. __, __,

706   S.E.2d       790,    797     (2011)       (citation       omitted).            However,

“[e]videntiary       errors       are    harmless        unless    a    defendant      proves

that absent the error a different result would have been reached

at trial.”         State v. Ferguson, 145 N.C. App. 302, 307, 549

S.E.2d 889, 893 (citation omitted), disc. review denied, 354

N.C. 223, 554 S.E.2d 650 (2001).

      Only    two    portions       of     Jan’s     testimony          and    her    written

statement were properly objected to as hearsay:                             (1) that Ellen

reported the girls had taken a shower with Defendant on the

morning of 24 December 2012 while Jan was at work and (2) that
                                     -18-
on the previous night, 23 December 2012, “special pee came out”

of   Defendant’s    penis.2     As   noted    supra,      the   jury   acquitted

Defendant    of    the   24    December     charges.        Defendant    cannot

demonstrate prejudice from the allegedly erroneous admission of

evidence    regarding    the   incident     the   girls    reported     to   have

occurred on 24 December 2012 as the jury apparently did not find

such evidence credible.        As for the girls’ report that “special

pee came out” of Defendant’s penis on 23 December 2012, we do

not believe “that absent the          [admission of this evidence]              a

different result would have been reached at trial.”                    Id.    The

indecent liberty Defendant was alleged to have taken with the

girls was inducing them to touch his penis.                 Whether Defendant

ejaculated after this touching was not relevant to the issues

before the jury, and therefore, Defendant cannot establish that

the allegedly erroneous admission of Jan’s testimony prejudiced

him.

       Further, videotapes of Ellen’s and Elizabeth’s interviews

with Mission Children’s Hospital staff members were played for

the jury over Defendant’s objections.3            In Ellen’s interview, she



2
  The State’s theory at trial was that this was a reference to
Defendant ejaculating.
3
  On appeal, Defendant does not challenge the trial court’s
overruling of these objections.
                                           -19-
described, inter alia, showering with Defendant and Elizabeth,

Defendant laying down on a bed naked, and Defendant making her

do    something    she      did    not     want   to   do.         In    her    interview,

Elizabeth described Ellen laying on a bed with Defendant, who

was    naked;     touching        Defendant’s     penis      at    his     request;     and

Defendant “peeing . . . gray pee” and moaning.                            Elizabeth also

reported that Ellen had taken a shower with Defendant.                           In light

of this additional evidence that Defendant showered with the

girls    and    persuaded          Ellen    to    touch      his        penis   until    he

ejaculated,       we   do    not     believe      that    any      of     the   allegedly

inadmissible hearsay evidence altered the outcome of Defendant’s

trial.    See id.      Accordingly, this argument is overruled.

       NO ERROR in part; NO PREJUDICIAL ERROR in part.

       Judges CALABRIA and ELMORE concur.

       Report per Rule 30(e).
