                            NO. COA13-1402

                   NORTH CAROLINA COURT OF APPEALS

                          Filed: 15 July 2014


STATE OF NORTH CAROLINA


    v.                               Buncombe County
                                     No. 11 CRS 488
JOSHUA NEAL KING



    Appeal by defendant from judgment entered 14 January 2013

by Judge Alan Z. Thornburg in Buncombe County Superior Court.

Heard in the Court of Appeals 21 May 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    LaShawn S. Piquant, for the State.

    M. Alexander Charns for defendant-appellant.


    BRYANT, Judge.


    Where a physician testified to common characteristics she

had observed in sexually abused children, the trial court did

not err in allowing her testimony, and where the trial court

denied the State’s motion to hold defense counsel in criminal

contempt, defendant did not receive ineffective assistance of

counsel.

    On 12 September 2011, a Buncombe County Grand Jury indicted

defendant on thirteen counts of indecent liberties with a child,
                                      -2-
two counts of rape of a child by an adult, and eleven counts of

statutory rape.        Each indictment alleged that the victim was

Kimberly1, a girl age twelve or thirteen years old depending on

the date of the offense.        A jury trial commenced during the 7

January 2013 Criminal Session of Buncombe County Superior Court,

the Honorable Alan Z. Thornburg, Judge presiding.

    The evidence presented tended to show that Kimberly was

born in 1997 and that she had two younger brothers.                 From the

time she was six months old, Kimberly lived with her paternal

grandmother.      In   2009,   when    she   was   twelve   years   of   age,

Kimberly left her grandmother’s residence and went to live with

her mother and two brothers.          Kimberly’s mother was living with

defendant Joshua Neal King, whom she later married.            Living with

her mother provided Kimberly with more freedom: “I got to go out

with my friends a lot more. They got to come over a lot more. I

used to drink and do drugs.”           Kimberly testified that she and

her mother used drugs together.

    On the evening of 16 March 2010, Kimberly’s mother was at

work; Kimberly was at home with defendant and her two brothers.

         A.    . . . I went to bed earlier that night
               and woke up and [defendant] was on top
               of me, and I had all my clothes off and

1
  Pursuant to Rule 3.1(b) of our Rules of Appellate Procedure, we
use a pseudonym to protect the identity of the juvenile.
                                   -3-
                I was in their bed.

          . . .

          Q.    Do you remember what he had on?

          A.    A shirt.

          . . .

          Q.    And what happened?

          A.    He did what I said he did.

          Q.    Okay. Is that when you said that he put
                his penis in your vagina?

          A.    Yes.

          Q.    What did you do?

          A.    I yelled for my brother.

Kimberly testified that defendant had her perform sexual acts on

many occasions from March through August 2010.

    Detective     David     Shroat,       working       in   the     Criminal

Investigations Unit of the Buncombe County Sheriff’s Department,

became involved with the case on 30 August 2010 after receiving

a report from the Department of Social Services.                   Detective

Shroat testified that per the report, “[Kimberly’s] mother was

working nights and [Kimberly] went to bed.          And at some point in

time, she woke up and [defendant] was on top of her, and she

screamed.”      Detective   Shroat       spoke   with    defendant    on   21

September 2010.   After having his statement transcribed and read
                                                 -4-
back    to   him,       defendant          verbally     acknowledged           his       words      and

signed his name to the statement.                       The statement was admitted at

trial.

       Per his statement, defendant “drunk probably a twelve pack”

one night; he told the children to go to sleep; and he went to

bed.     At some point, defendant thought his wife had gotten into

the bed.      “I discovered it was [Kimberly] . . . I told her to go

back to her room. . . . I did rub on her under the blanket with

my penis. I don’t know if I penetrated her or not.”                                      Defendant

did    not   admit       to     any    other      instance            of   sexual       contact       or

activity with Kimberly.

       Pediatrician            Dr.     Sarah     Monahan-Estes,              working          at     the

Mission      Children’s         Hospital,        examined         Kimberly      on       29    August

2012.        Dr.    Monahan-Estes            testified           to    the   results          of     her

examination        and    in        part    to   common          characteristics          she        had

observed in sexually abused children.

       Following         the    close       of    the       evidence,        the     jury          found

defendant not guilty on twenty-five charges and found defendant

guilty on one count of indecent liberties with a child occurring

on 16 March 2010.              The jury also found as an aggravating factor

that    “Defendant        took        advantage        of    a    position         of    trust        or

confidence     .    .     .    to     commit     the    offense.”            The     trial         court
                                             -5-
entered     judgment       in    accordance          with      the   jury          verdict    and

sentenced    defendant          to   an     active      term    of   16       to    20   months.

Defendant appeals.

                           ________________________________

      On    appeal,    defendant           raises       the    following           issues:    (I)

whether     the    trial    court         erred    by    allowing         a    physician       to

testify;     and     (II)       whether       defendant         received            ineffective

assistance of counsel.

                                                   I

      Defendant       first      argues      that       the    trial      court       erred    in

allowing     Dr.    Monahan-Estes,            the       pediatrician           who       examined

Kimberly following her report of sexual assaults, to testify as

to Kimberly’s veracity.               Specifically, defendant contends that

Dr. Monahan-Estes’ written report, which was published to the

jury, explained why Kimberly did not initially tell the whole

truth and that Dr. Monahan-Estes’ testimony presumed Kimberly

was telling the truth and presumed a history of sexual abuse.

We disagree.

      Defendant cites the opinion of this Court in State v. Ryan

for   the     proposition            that     “[o]ur          appellate        courts         have

consistently held that the testimony of an expert to the effect

that a prosecuting witness is believable, credible, or telling
                                            -6-
the truth is inadmissible evidence.”                      ___ N.C. App. ___, ___,

734 S.E.2d 598, 604 (2012) (citation and quotations omitted),

rev. dismissed, 366 N.C. 433, 736 S.E.2d 188, and writ denied,

rev. denied, 366 N.C. 433, 736 S.E.2d 189 (2013).

    Initially, we note that Dr. Monahan-Estes was not formally

qualified as an expert.               To address this discrepancy, we find

guidance      in   the    opinion      of   our    Supreme       Court     in     State    v.

Aguallo,    322    N.C.     818,      370   S.E.2d    676      (1988),      wherein       the

defendant      challenged       the     admission         of     testimony        from    two

witnesses     addressing        the   typical      characteristics          of     sexually

abused children.          One witness, a Department of Social Services’

case worker, having been employed as such for fourteen years,

had investigated between twenty-five and thirty cases of child

sexual abuse.            The victim confided in the witness about the

abuse   the    defendant        had    inflicted.          The    second     witness,       a

Sheriff’s Department juvenile investigator, had been employed as

such for seven years and had investigated over one hundred cases

of child sexual abuse.             Id. at 820—21, 370 S.E.2d at 677.                      The

defendant      argued      on   appeal      that    the    evidence        was     improper

because “the witnesses were not qualified as experts and                                   []

their   testimony        fail[ed]     as    lay    opinion       because     it    was    not

rationally based on the perceptions of the witness.”                                Id. at
                                         -7-
820, 370 S.E.2d at 677.            Our Supreme Court reasoned that “[i]t

[was] evident that the nature of their jobs and the experience

which [the witnesses] possessed made them better qualified than

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

children.”      Id. at     821, 370 S.E.2d at 677.                The Court went on

to hold that “the finding that [each] witness [was] an expert is

implicit   in    the     trial    court's      ruling    admitting       the   opinion

testimony.” Id.; see also N.C. Gen. Stat. § 8C-1, Rule 702(a)

(2013) (“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 . . . .”).

    Dr.    Monahan-Estes’         testimony      began     with    her   educational

background,     including        where   she    completed     her     undergraduate

studies, her medical school education, where she completed her

pediatric residency, and where she completed an additional two-

year fellowship in child abuse pediatrics – during which she saw

only sexually abused, physically abused, or neglected children.

Dr. Monahan-Estes testified that she currently worked in a child

abuse clinic seeing children who are suspected of having any

history of sexual abuse, physical abuse or neglect.                       During the
                                      -8-
course of the investigation into allegations of sexual abuse,

Dr. Monahan-Estes interviewed Kimberly.

       At trial, Dr. Monahan-Estes testified that when a child is

suspected of suffering from abuse, “you want to assure that they

don't have any injuries or issues that are resulting because of

that    abuse   that    need     medical    attention     or   mental    health

attention.”     Dr. Monahan-Estes testified to the typical process

she goes through in performing a child medical evaluation, with

specific regard to an evaluation done where sexual abuse is

suspected.      She    also     testified    to   the   limitations     of   the

examination     and    common    behaviors    she   has    observed     in   her

experience.

           [W]e very rarely see kids who [sic] the
           abuse or trauma has occurred and then they
           immediately tell someone so we can examine
           them. . . .    In the cases that I typically
           see   in  clinic,   these  disclosures  have
           occurred days, weeks, months, years after
           the sexual abuse has occurred . . . .

           . . .

           [W]e see all kinds of        behavioral and
           emotional
           dysfunction or disorders in children who
           have a history of sexual abuse. These kids
           typically have an increased frequency of
           being depressed or having mental health
           issues, substance abuse. They tend to act
           out, aggressive behavioral issues in school.
           They have increased risk of school failure.
           These children typically get in trouble with
                                             -9-
              the law, delinquency, they'll be arrested,
              they sexually act out. There's a whole host
              of issues that are increased in children who
              have a history of sexual abuse.

       We   hold        that    the   trial     court’s     qualification      of    Dr.

Monahan-Estes as an expert in pediatric medicine as well as the

evaluation and treatment of child sexual abuse is implicit in

the trial court’s admission of her testimony regarding common

behaviors in children who have suffered from sexual abuse.

       In challenging the admission of Dr. Monahan-Estes’ written

report into evidence, defendant contends that Dr. Monahan-Estes

“explained        why    [Kimberly]       didn’t     initially   tell    the    entire

truth.”       We first note that defendant did not object to the

admission of the report at trial.                    Thus, the admission of this

evidence would be subject to plain error review only, and upon

the request of defendant.              Defendant has failed to request plain

error review of this issue.                  Further, defendant has failed to

make Dr. Monahan-Estes’ report a part of the record on appeal.

Therefore, we are precluded from considering the contents of the

report,     and    we    must     consider    defendant’s     argument    abandoned.

See N.C. R. App. P. 9(a) (“In appeals from the trial division of

the General Court of Justice, review is solely upon the record

on appeal . . . .”); Neal v. Craig Brown, Inc., 86 N.C. App.

157,   161,    356       S.E.2d    912,   915      (1987)   (“This   Court     may   not
                               -10-
consider documents which have not properly been made a part of

the record on appeal.” (citing Elliott v. Goss, 254 N.C. 508,

119 S.E.2d 192 (1961))).

    Defendant    challenges   Dr.     Monahan-Estes’   testimony   as

presuming that Kimberly was telling the truth.         Specifically,

defendant challenges the following:

         Q.   . . . In your training and experience,
         are there reasons that you have personally
         observed that children may not always tell
         all of the allegations to start?

         . . .

         THE WITNESS: Yes. It's very common that a
         child either does not initially disclose or
         only partially discloses.

         One of the biggest issues is frequently the
         alleged   perpetrator is a parent or a
         parental figure or someone that they love
         and trust, so they don't want to get them in
         trouble. They're ashamed, they're afraid,
         they've been threatened or bribed to try not
         to disclose.

         If another family member who is not the
         alleged perpetrator, but say another parent
         or another parental figure doesn't believe
         the child, then they'll frequently encourage
         them not to tell, or children sometimes –
         there will be negative consequences to their
         disclosure. So they tell a little bit about
         what happens and then all kinds of things
         come into play. They're taken out of their
         home,   they're   taken  away   from   their
         siblings, they're taken away from both of
         their parents. And they see these negative
         consequences and they don't want them to
                                            -11-
             continue, so they'll only tell little bits
             of what happened.

      In State v. Hall, our Supreme Court, analyzing its prior

opinion in State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987),

stated

             that expert testimony on the symptoms and
             characteristics of sexually abused children
             is   admissible   to  assist  the   jury in
             understanding   the  behavior   patterns of
             sexually abused children. Furthermore, [the
             Court] allowed evidence that a particular
             child’s symptoms were consistent with those
             of sexual or physical abuse victims, but
             only to aid the jury in assessing the
             complainant's credibility.

State v. Hall, 330 N.C. 808, 817, 412 S.E.2d 883, 887 (1992)

(citation omitted); compare State v. Stancil, 355 N.C. 266—67,

559 S.E.2d 788, 789 (2002) (“In a sexual offense prosecution

involving    a    child   victim,         the     trial    court      should   not    admit

expert opinion that sexual abuse has in fact occurred . . . such

testimony    is   an    impermissible            opinion   regarding      the     victim's

credibility.      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.”                     (citing State v. Hall,

330   N.C.   808,      818,    412       S.E.2d    883,    888     (1992))     (citations

omitted)).
                                         -12-
    We view Dr. Monahan-Estes’ testimony as properly providing

common characteristics she observed in sexually abused children

and a possible basis for those characteristics, and not opinion

testimony on Kimberly’s credibility.                Therefore, as there was no

error    by   the    trial    court    in     allowing   the   testimony     of   Dr.

Monahan-Estes, defendant’s argument is overruled.

                                               II

    Next, defendant argues he was denied effective assistance

of counsel.         Specifically, the trial court’s denial of defense

counsel’s     request     for    an     evening     recess     following     defense

counsel having to defend himself against a criminal contempt

charge    prejudiced         defense     counsel’s       ability    to     represent

defendant.     We disagree.

    “The right to effective assistance of counsel includes the

right    to    representation          that    is   free     from   conflicts     of

interest.”      State v. Choudhry, 365 N.C. 215, 219, 717 S.E.2d

348, 352 (2011) (citations and quotations omitted).                         “When a

defendant attacks his conviction on the basis that counsel was

ineffective, he must show that his counsel's conduct fell below

an objective standard of reasonableness.”                    State v. Augustine,

359 N.C. 709, 718, 616 S.E.2d 515, 524 (2005) (quoting State v.

Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985)).
                                  -13-
            In order to meet this burden defendant must
            satisfy a two part test.

                First, the defendant must show that
                counsel's performance was deficient.
                This requires showing that counsel made
                errors so serious that counsel was not
                functioning as the “counsel” guaranteed
                the defendant by the Sixth Amendment.
                Second, the defendant must show that
                the deficient performance prejudiced
                the defense. This requires showing that
                counsel's error were so serious as to
                deprive the defendant of a fair trial,
                a trial whose result is reliable.

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)

(quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.

2d 674, 694 (1984)); see also, e.g., Choudhry, 365 N.C. at 219,

717 S.E.2d at 352 (“[W]hen the claim of ineffective assistance

is based upon an actual, as opposed to a potential, conflict of

interest . . . a defendant may not be required to demonstrate

prejudice    under   Strickland    to    obtain   relief.”   (citations

omitted)).

    Defendant’s argument is predicated on the assertion that

defense counsel was burdened by a conflict of interest; however,

the record does not reveal such a conflict.

    On 9 January 2010, in the morning of the third day of

trial, the prosecutor filed a motion requesting that defense

counsel be held in criminal contempt as well as a corresponding
                                           -14-
motion for a mistrial following defendant’s cross-examination of

the   victim     the     day   before.       In     its    motion,        the    prosecutor

contended that following an in camera hearing to address the

admissibility of evidence in light of Rule 412, “Rape or sex

offense cases; relevance of victim's past behavior,” and the

trial    court’s    exclusion     of     the      evidence       proffered,       defendant

proceeded to question Kimberly about her prior sexual encounters

in violation of the court’s order.                       A hearing on the State’s

motion was held that morning.               A review of the trial transcript

reveals    a    brief     hearing.       The      State        presented    its    motion;

defense counsel introduced an attorney who would represent him;

defense    counsel’s       attorney      notified         the     court    that    he    was

unfamiliar with any of the underlying facts                           –    including the

allegations in the State’s motion, and asked that if the trial

court was “seriously considering” the motion that the hearing be

postponed.         The    State   consented         to     a    postponement       of    the

hearing;    at    which    point,     the      trial      court    declared       that   the

State’s motion was one for direct contempt and that the court

had reviewed the transcript of defense counsel’s examination.

The     trial    court    ruled     that     defense        counsel       “did    not    act

willfully or with gross negligence, and the acts were not done

deliberately and purposefully in violation of the law without
                                          -15-
regard or justification or excuse, and [this court] fails to

find him in contempt of court.”                    The trial court subsequently

denied    the     State’s    motion    for     a    mistrial.      Following       this

denial,    defense       counsel   asked     for    an   adjournment:       “I'm   very

offended by this and it's sort of knocked me off my game, if you

will. And I don't want to be sitting here thinking about my

issues    about     this    when    I'm    supposed      to   be   giving    my    best

interest     to     my     client.”        Defense       counsel     requested       an

adjournment until the next morning “to kind of calm down and get

over this[.]”        At 11:38 a.m., the trial court called a recess

until 2:00 p.m.

      We see no conflict of interest between trial counsel and

defendant.        Furthermore, defendant neither points to an error

committed as a result of trial counsel’s participation in the

criminal contempt hearing nor asserts what burden would have

been alleviated by an overnight recess.                  Even though counsel was

the subject of a contempt hearing during his representation of

defendant, counsel was found to be not in contempt of court.

There is nothing in the record to support defendant’s assertion

of a conflict of interest.            On the contrary, defendant was found

not guilty on twenty-five of twenty-six charges considered by

the   jury.         Defense        counsel’s       zealous      representation       of
                                -16-
defendant, clearly revealed in the record, can in no way be

deemed ineffective based on a conflict of interest or any other

theory.    Defendant has failed to show that defense counsel’s

performance fell below an objective standard of reasonableness.

See   Braswell,   312   N.C.   at   561—62,   324   S.E.2d   at   248.

Accordingly, we overrule defendant’s argument.

      No error.

      Judges CALABRIA and GEER concur.
