              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1243-2

                                  Filed: 3 April 2018

Mecklenburg County, Nos. 14 CRS 209708, 209712-15

STATE OF NORTH CAROLINA

             v.

CHARLES AUGUSTUS SHORE, JR.


      On remand by order of the Supreme Court on 1 March 2018 in State v. Shore,

__ N.C. __, __ S.E.2d __ (2017), remanding the unanimous decision of this Court filed

5 September 2017 for the limited purpose of considering the merits of defendant’s

argument concerning the issue of mistrial. Case originally appealed by defendant

from judgments entered 26 April 2016 by Judge Stanley L. Allen in Mecklenburg

County Superior Court.


      Attorney General Joshua H. Stein, by Assistant Attorney General Margaret A.
      Force, for the State.

      Hale Blau & Saad Attorneys at Law, P.C., by Daniel M. Blau, for defendant-
      appellant.


      ARROWOOD, Judge.


      Charles Augustus Shore, Jr. (“defendant”) appeals from judgments entered

upon his convictions for statutory sexual offense of a person thirteen, fourteen, or

fifteen years old, and for statutory rape of a person thirteen, fourteen, or fifteen years

old. Based on the reasons stated herein, we restate our previous opinion with respect
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to the issues upon which our Supreme Court denied discretionary review and find no

error with respect to the trial courts failure to sua sponte declare a mistrial. No error.

                                        I.       Background

       On 31 March 2014, defendant was indicted on the following charges: four

counts of indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1; one

count of statutory sexual offense of a person thirteen, fourteen, or fifteen years old in

violation of N.C. Gen. Stat. § 14-27.7A(a); and three counts of statutory rape of a

person thirteen, fourteen, or fifteen years old in violation of N.C. Gen. Stat. § 14-27A.

       Defendant was tried at the 18 April 2016 criminal session of Mecklenburg

County Superior Court, the Honorable Stanley Allen presiding.

       The State’s evidence tended to show that in 2012, H.M.1 began living with her

father. She was eleven years old at the time. H.M.’s father was living with Brandi

Coleman (“Brandi”) and defendant, who was Brandi’s boyfriend. H.M. testified that

after moving into the house, she spent time with defendant by jumping on the

trampoline, watching sports, fishing, watching television, and playing video games.

She described their relationship as “always friendly, really nice. Anything I ever

needed when my dad wasn’t around or Brandi wasn’t around, he always helped me.”

In the summer of 2013, defendant’s son moved into the house. H.M. shared a room

with defendant’s son and they became best friends.


       1 Initials are used throughout this opinion to protect the identity of the juvenile and for ease
of reading.

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       In January 2014, after Brandi and defendant ended their relationship,

defendant and defendant’s son moved to a nearby apartment complex. H.M. testified

that she saw defendant and defendant’s son “all the time” after they moved,

frequently visiting their apartment to “hang out.” H.M. spent the night at their

apartment more than once and slept in defendant’s bed.

       H.M. testified that one night, she was sleeping in defendant’s bed when

defendant got into his pajamas and crawled into bed with her. They “cuddled up

together.” H.M. testified that defendant’s hands “slowly started to go down my side,”

defendant put his hands around the waistband of her pants, and then her shorts came

off.   Defendant’s hands “entered” her underwear and defendant began touching

H.M.’s vagina.     Defendant got on top of H.M. and kissed her neck.      H.M. told

defendant that she was tired and defendant replied, “okay,” gave her a hug, and the

two fell asleep.

       H.M. testified that she and defendant had vaginal intercourse on two

occasions.   One incident occurred when she spent a few nights at defendant’s

apartment during the weekend of 14 February 2014.          On one of those nights,

defendant and H.M. began kissing on the couch. They went into defendant’s bedroom

where defendant “crawled” on top of her, put his hand inside of her, and then put his

penis inside of her. The next morning, defendant gave her a pill which he instructed




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her to take. The other occasion where defendant had sex with H.M. occurred in the

same way except that defendant did not give her a pill to take.

      H.M.’s father testified that he would check H.M.’s cell phone on a regular basis.

On 22 February 2014, H.M.’s father was looking through H.M.’s cell phone when he

noticed text messages from defendant.       The messages included “Good morning,

Baby[,]” “Good morning, Beautiful[,]” and “Hello, Princess.” H.M.’s father became

very angry and threw the cell phone on the ground and the screen broke. H.M.’s

father confronted H.M., asking if “anything ever happened between you and

[defendant]” and H.M. replied, “yes.” H.M.’s father proceeded to drive to defendant’s

apartment.

      While H.M.’s father was gone, Brandi spoke with H.M.                During the

conversation, H.M. revealed that defendant had touched her in “her private areas”

and that she and defendant engaged in sex.

      Defendant was not at his apartment when H.M.’s father arrived. H.M.’s father

called Brandi and she was able to convince him to return back to his house. At his

house, H.M.’s father directly asked H.M. if she and defendant had ever had sex and

H.M. replied, “yes, Dad[.]” H.M.’s father left his house again and went to defendant’s

apartment. Defendant was not home, so H.M. went to a nearby karate studio in

search of defendant. As H.M.’s father walked up to the karate studio, defendant was

walking out. H.M.’s father yelled, “you son of a b****, I’m here to kill you[.]”



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Defendant ran back inside the studio and came back outside with twenty men to

protect him. H.M.’s father continued to scream at defendant, claiming that defendant

had raped his daughter.

      H.M.’s father had called the police earlier and the police arrived on the scene.

Officer Thomas Gordon and Sergeant Grant Nelson, of the Matthews Police

Department, testified that on 22 February 2014, they responded to a call at Scott

Shields Martial Arts Academy. H.M.’s father informed the officers why he was angry

and accused defendant of inappropriately touching H.M. Sergeant Nelson testified

defendant “knew what we were there [in] reference to.”         After Sergeant Nelson

explained to defendant that he was not under arrest, defendant told him of two

different incidents that occurred with H.M. Defendant stated that one time, H.M.

had sat on defendant’s lap, grinding her bottom pelvic area into his pelvic area and

grabbing his crotch area. Defendant told her to stop, but she continued. On another

occasion, defendant was standing when H.M. approached him from behind and

grabbed his crotch. Defendant again told her to stop, but she continued to grab him.

H.M. then took defendant’s hand and placed it down her pants. Defendant left his

hand there for a minute and then pulled it out of her pants.

      Kelli Wood (“Wood”) testified as an expert in clinical social work, specializing

in child sexual abuse cases. Wood testified that on 5 March 2014, she interviewed

H.M. at Pat’s Place Child Advocacy Center, a center providing services to children



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and their families when there are concerns that a child may be a victim of

maltreatment or may have witnessed violence. A videotape of her interview was

played for the jury with a limiting instruction that it should be received for

corroborative purposes.

      At the close of the State’s evidence, the State dismissed one count of indecent

liberties and one count of statutory rape.

      Defendant testified that his relationship with H.M. was “[p]retty good” and

they were like family. Defendant denied ever sitting on his couch and kissing H.M.

and denied ever sleeping in his bed with H.M. He also denied ever touching her

sexually with his hands, using his mouth to touch her private parts, or having sexual

intercourse with her. Defendant admitted that H.M. spent the night at his apartment

on 14 and 15 February 2014, but testified that H.M. slept on the lower bunk bed one

of the nights and slept on the couch the other night.          He testified that on

15 February 2014, his girlfriend, Bridget Davenport, had spent the night with

defendant in his bedroom. Defendant testified that on 16 February 2014, he was

making lunch in the kitchen when H.M. walked up to him and grabbed his crotch.

He backed away and told her “no, no. Inappropriate.” H.M. giggled in response.

Defendant further testified that on the same day, he was sitting in a recliner when

H.M. sat on top of him. Defendant pushed H.M. off of him and told her that “it was

very inappropriate, she couldn’t do it, could not do that.”



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      On 26 April 2016, a jury found defendant guilty of three counts of taking

indecent liberties with a child, one count of statutory sexual offense of a person

thirteen, fourteen, or fifteen years old, and one count of statutory rape of a person

thirteen, fourteen, or fifteen years old. The jury acquitted defendant of one count of

statutory rape.

      Judgment was arrested as to the indecent liberties convictions. Defendant was

sentenced to a term of 144 to 233 months for the statutory rape conviction and to a

consecutive term of 144 to 233 months for the statutory sexual offense conviction.

      Defendant was ordered to register as a sex offender upon release from

imprisonment.     The trial court further ordered that the Department of Adult

Correction shall perform a risk assessment of defendant and will determine the need

for satellite-based monitoring (“SBM”).

      Defendant gave oral notice of appeal in open court. Defendant also filed a

petition for writ of certiorari to this Court, since the sex offender registration and

SBM are civil in nature, and thus require written notice of appeal. N.C. R. App. P.

3(a) (2016); State v. Brooks, 204 N.C. App. 193, 195, 693 S.E.2d 204, 206 (2010). Our

Court granted defendant’s petition for writ of certiorari on 21 July 2017 and we

review the merits of his appeal.

                                   II.    Discussion




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      On appeal, defendant argues that: (A) the trial court erred by permitting the

State to introduce unreliable expert testimony, in violation of Rule 702 of the North

Carolina Rules of Evidence; (B) he received ineffective assistance of counsel where

his attorney elicited evidence of guilt that the State had not introduced; (C) the trial

court erred by failing to declare a mistrial sua sponte after a State’s witness engaged

in a “pattern of abusive and prejudicial behavior” during defendant’s trial; and (D)

the trial court impermissibly expressed an opinion on the evidence by denying

defendant’s motion to dismiss in the presence of the jury, in violation of N.C. Gen.

Stat. § 15A-1222. We address each argument in turn.

                      A.     Expert Testimony Under Rule 702

      Defendant argues the trial court abused its discretion by allowing expert

witness Wood to testify that it is not uncommon for children to delay the disclosure

of sexual abuse and by allowing Wood to provide possible reasons for delayed

disclosures. Specifically, defendant contends that Wood’s testimony was unreliable

because it was neither “based upon sufficient facts or data[,]” nor “the product of

reliable principles and methods[,]” in violation of N.C. Gen. Stat. § 8C-1, Rule

702(a)(1)-(2). While acknowledging that our Court has previously allowed analogous

expert testimony, see State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316 (2001),

appeal dismissed and disc. review denied, 355 N.C. 217, 560 S.E.2d 143, cert. denied,

536 U.S. 967, 153 L. Ed. 2d 851 (2002), he urges our Court to examine this issue in



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light of the General Assembly’s 2011 amendment to Rule 702 of the North Carolina

Rules of Evidence and the specific facts of his case.

      Our Court reviews a trial court’s admission of expert testimony pursuant to

N.C. Gen. Stat. § 8C-1, Rule 702(a) for an abuse of discretion. State v. Hunt, __ N.C.

App. __, 790 S.E.2d 874, 881, disc. review denied, __ N.C. __, 795 S.E.2d 206 (2016).

“A trial court may be reversed for abuse of discretion only upon a showing that its

ruling was manifestly unsupported by reason and could not have been the result of a

reasoned decision.” State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).

      In State v. McGrady, 368 N.C. 880, 787 S.E.2d 1 (2016), our Supreme Court

confirmed that the most recent amendment of Rule 702 adopted the federal standard

for the admission of expert witness testimony articulated in the Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993) line of cases. See

McGrady, 368 N.C. at 884, 787 S.E.2d at 5. “By adopting virtually the same language

from the federal rule into the North Carolina rule, the General Assembly thus

adopted the meaning of the federal rule as well.” Id. at 888, 787 S.E.2d at 7-8.

Although Rule 702 was amended, our Supreme Court reasoned that “[o]ur previous

cases are still good law if they do not conflict with the Daubert standard.” Id. at 888,

787 S.E.2d at 8. While the amendment “did not change the basic structure of the

inquiry” under Rule 702(a), it “did change the level of rigor that our courts must use

to scrutinize expert testimony before admitting it.” Id. at 892, 787 S.E.2d at 10. “To



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determine the proper application of North Carolina’s Rule 702(a), then, we must look

to the text of the rule, [the Daubert line of cases], and also to our existing precedents,

as long as those precedents do not conflict with the rule’s amended text or with

Daubert, Joiner, or Kumho.” Id. at 888, 787 S.E.2d at 8.

      The text of Rule 702, in pertinent part, provides:

             (a) 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,
                 or otherwise, if all of the following apply:

                  (1) The testimony is based upon sufficient facts or data.

                  (2) The testimony is the product of reliable principles
                      and methods.

                  (3) The witness has applied the principles and methods
                      reliably to the facts of the case.

N.C. Gen. Stat. § 8C-1, Rule 702(a) (2016).

      The McGrady Court held that:

             Rule 702(a) has three main parts, and expert testimony
             must satisfy each to be admissible. First, the area of
             proposed testimony must be based on “scientific, technical
             or other specialized knowledge” that “will assist the trier of
             fact to understand the evidence or to determine a fact in
             issue.” This is the relevance inquiry[.]

             ....

             Second, the witness must be “qualified as an expert by
             knowledge, skill, experience, training, or education.” This


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             portion of the rule focuses on the witness’s competence to
             testify as an expert in the field of his or her proposed
             testimony. . . . Whatever the source of the witness’s
             knowledge, the question remains the same: Does the
             witness have enough expertise to be in a better position
             than the trier of fact to have an opinion on the subject?

             ....

             Third, the testimony must meet the three-pronged
             reliability test that is new to the amended rule: (1) The
             testimony [must be] based upon sufficient facts or data.
             (2) The testimony [must be] the product of reliable
             principles and methods. (3) The witness [must have]
             applied the principles and methods reliably to the facts of
             the case. These three prongs together constitute the
             reliability inquiry discussed in Daubert, Joiner, and
             Kumho. The primary focus of the inquiry is on the
             reliability of the witness’s principles and methodology, not
             on the conclusions that they generate[.]

McGrady, 368 N.C. at 889-90, 787 S.E.2d at 8-9 (internal citations, footnote, and

quotation marks omitted).

      In the present case, defendant does not dispute either Wood’s qualifications or

the relevance of her testimony.     Defendant challenges the reliability of Wood’s

delayed disclosure testimony; whether her testimony met prongs (1) and (2) of the

three-pronged reliability test.

      “The precise nature of the reliability inquiry will vary from case to case

depending on the nature of the proposed testimony. In each case, the trial court has

discretion in determining how to address the three prongs of the reliability test.” Id.




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at 890, 787 S.E.2d at 9.     Regarding factors a trial court may consider in its

determination of reliability, the McGrady Court explained as follows:

                   In    the    context     of    scientific  testimony,
            Daubert articulated five factors from a nonexhaustive list
            that can have a bearing on reliability: (1) “whether a
            theory or technique . . . can be (and has been) tested”; (2)
            “whether the theory or technique has been subjected to
            peer review and publication”; (3) the theory or technique’s
            “known or potential rate of error”; (4) “the existence and
            maintenance of standards controlling the technique’s
            operation”; and (5) whether the theory or technique has
            achieved “general acceptance” in its field. Daubert, 509
            U.S. at 593-94, 113 S.Ct. 2786. When a trial court
            considers testimony based on “technical or other
            specialized knowledge,” N.C. R. Evid. 702(a), it should
            likewise focus on the reliability of that testimony, Kumho,
            526 U.S. at 147-49, 119 S.Ct. 1167. The trial court should
            consider the factors articulated in Daubert when “they are
            reasonable measures of the reliability of expert testimony.”
            Id. at 152. Those factors are part of a “flexible” inquiry,
            Daubert, 509 U.S. at 594, 113 S.Ct. 2786, so they do not
            form “a definitive checklist or test,” id. at 593, 113 S.Ct.
            2786. And the trial court is free to consider other factors
            that may help assess reliability given “the nature of the
            issue, the expert’s particular expertise, and the subject of
            his testimony.” Kumho, 526 U.S. at 150, 119 S.Ct. 1167.

                   The federal courts have articulated additional
            reliability factors that may be helpful in certain cases,
            including:

            (1) Whether experts are proposing to testify about matters
                growing naturally and directly out of research they
                have conducted independent of the litigation, or
                whether they have developed their opinions expressly
                for purposes of testifying.

            (2) Whether the expert has unjustifiably extrapolated from


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                an accepted premise to an unfounded conclusion.

             (3) Whether the expert has adequately accounted for
                 obvious alternative explanations.

             (4) Whether the expert is being as careful as he would be
                 in his regular professional work outside his paid
                 litigation consulting.

             (5) Whether the field of expertise claimed by the expert is
                 known to reach reliable results for the type of opinion
                 the expert would give.

             Fed. R. Evid. 702 advisory committee’s note to 2000
             amendment (citations and quotation marks omitted). In
             some cases, one or more of the factors that we listed in
             Howerton may be useful as well. See Howerton, 358 N.C.
             at 460, 597 S.E.2d at 687 (listing four factors: use of
             established techniques, expert’s professional background
             in the field, use of visual aids to help the jury evaluate the
             expert’s opinions, and independent research conducted by
             the expert).

Id. at 890-91, 787 S.E.2d at 9-10.

      At trial, Wood testified that she had a bachelor’s degree in sociology from

Georgia State University and a master of social work from Clark Atlanta University.

She had been a licensed clinical social worker for six years. Wood was working as

forensic interviewer at Pat’s Place Child Advocacy Center. Wood testified that a

forensic interview is a structured conversation with a child, allowing the child to be

able to communicate in their own words, about a personal experience or something

they had witnessed. She explained that the purpose of a forensic interview is to “elicit

those details, and those details are either to refute the allegations that something


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may have happened to a child or a child may have witnessed something, or to support

those allegations.” She had approximately eleven years of forensic interviewing

experience and over 200 hours of training in the field of forensic interviews of children

suspected of being maltreated. Wood testified that she had obtained research-based

knowledge of sexually abused children by reading research studies concerning the

suggestibility of children, best types of questions to ask, how children develop and

understand questions, and the process by which children provide disclosures. She

continued to update her research in order to ensure she was utilizing the best

practices.   Wood testified that over her eleven years of experience, she had

interviewed over 1,200 children, with 90% of those interviews focusing on sexual

abuse allegations. She had also been qualified as an expert in child sexual abuse in

Georgia over twenty times and once in North Carolina.

      The State tendered Wood as an expert in the field of clinical social work,

specializing in child sexual abuse and defendant objected.         On voir dire, Wood

testified that she had not conducted research in the delayed reporting of sexual

assault cases by children, but had reviewed research on “delayed disclosures, reasons

for delayed disclosures, as well as concerns that delayed disclosures could be false

disclosures, and so I have reviewed on both sides of the concerns of delayed

disclosures.” When asked by defense counsel whether the claims of the research

participants were determined to be true or false, Wood explained that the research



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she had reviewed were “already supposing that the participants are victims” and

“they are just going by what the participants are saying.” Wood testified that she

was forming opinions based on her observations through the thousand-plus

interviews she had conducted, as well as research she had reviewed. She estimated

that she had read over twenty articles on delayed disclosures.

      Ultimately, the trial court allowed Wood to testify as an expert in clinical social

work, specializing in child sexual abuse cases. However, the trial court prohibited

any testimony as to why, if at all, H.M. delayed in reporting the alleged abuse. The

trial court stated as follows:

             THE COURT: Based on [] Miss Wood’s education, she’s a
             licensed clinical social worker, and having done forensic
             interviews of at least, approximately, over 1,200 children,
             90 percent of those were focused on sexual abuse
             allegations, the Court will allow her to testify as a licensed
             clinical social worker with a specialization in child-sexual-
             abuse cases. And – however, despite that, the state has
             already said that they’re not going to try to elicit testimony,
             and the Court will prohibit any testimony as to why, if at
             all, [H.M.] delayed in reporting, if she did, in reporting any
             potential inappropriate behavior, but just in general what
             Miss Wood has observed from child abuse, I’m sorry, sexual
             abuse from persons in the past.

                    I think, [defense counsel], almost the exact question
             in [State v. Dew], and then the quote: R.O says, however,
             the appellate courts in this jurisdiction have consistently
             allowed the admission of expert testimony, such as the
             witness in that case, which relies upon personal
             observations of professional experience rather than upon
             quantitative analysis.



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             I think something like this would not be able to be,
      as you indicated, from empirical data or empirical testing,
      but I think that’s going to go to the weight rather than to
      the admissibility so I’ll deny the motion to the extent that
      she cannot testify as an expert, but I’ll allow it to the extent
      that she cannot testify as to why anybody involved in this
      case may have delayed reporting any inappropriate
      behavior.

Wood later testified, amid objections from defendant, to the following:

      [THE STATE:] In your experience and in your survey of
      the research, is it uncommon for a child to delay disclosure
      of sexual abuse?

      [WOOD:] No.

      ....

      [WOOD:] No, it’s not.

      [THE STATE:] What are some of the reasons that a child,
      based on the research and experience, in general, may
      delay disclosure?

      ....

      [WOOD:] There are numerous reasons. Some of them are
      due to fear: Fear of not being believed, fear of what others
      are going to say about them, fear of what the disclosure will
      do to the family, will it break the family up, fear that
      something will happen to the alleged perpetrator, fear that
      something will happen to the victim, fear that something
      will happen to the other family members if there’s
      retaliation. Then, also, blame and self-guilt that they
      didn’t do something to stop it, that they didn’t run, that
      they didn’t say something. Also, concern that if they tell,
      what will happen to their family. If this is – if the alleged
      perpetrator is a primary caregiver, will they have to begin
      to look for a new residence, will their brothers or sisters not


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             be able to see their parent any further, and how will others
             in the family – will the other family members blame them
             for the destruction or the demise of the family; and so some
             of those are the reasons that children do not tell
             immediately.

Wood further testified that she had personally heard children express the same

potential reasons for delayed disclosures that she had found in her research

throughout her experience in forensic interviewing.

      Defendant cross-examined Wood about whether the studies on delayed

disclosures included false allegations of child sexual abuse. Wood replied that she

had examined “both research that deal with children who have identified a positive

disclosure and a negative disclosure, and they both do talk about delayed disclosures

that is found in – throughout the research.”

      First, to be reliable, an expert’s testimony must be based upon sufficient facts

or data pursuant to Rule 702(a)(1). Defendant contends that Wood’s testimony was

unreliable because she had not conducted her own research and instead, relied on

studies conducted by others. Defendant is essentially arguing that the trial court

abused its discretion when it admitted Wood’s expert testimony, which was based

upon her review of research on delayed disclosures, combined with professional

experience. Upon thorough review, we hold that this contention directly conflicts

with the meaning of Rule 702, the Daubert line of cases, and our existing precedent.




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      The Advisory Committee Notes to the federal rule state that subsection (a)(1)

of Rule 702 “calls for a quantitative rather than qualitative analysis. The amendment

requires that expert testimony be based on sufficient underlying ‘facts or data.’ The

term ‘data’ is intended to encompass the reliable opinions of other experts.” Fed. R.

Evid. 702, Advisory Committee Notes on the 2000 Amendments; see Pope v. Bridge

Broom¸ Inc., 240 N.C. App. 365, 374, 770 S.E.2d 702, 710 (citations omitted) (stating

that the “requirement that expert opinions be supported by ‘sufficient facts or data’

means ‘that the expert considered sufficient data to employ the methodology[]’ ” and

that “experts may rely on data and other information supplied by third parties”), disc.

review denied, 368 N.C. 284, 775 S.E.2d 861 (2015).           Moreover, the Advisory

Committee Notes provide as follows:

              Nothing in this amendment is intended to suggest that
              experience alone – or experience in conjunction with other
              knowledge, skill, training or education – may not provide a
              sufficient foundation for expert testimony. . . . In certain
              fields, experience is the predominant, if not sole, basis for
              a great deal of reliable expert testimony.

Fed. R. Evid. 702, Advisory Committee Notes on the 2000 Amendments. The Daubert

line of cases also stands for the proposition that “no one denies that an expert might

draw a conclusion from a set of observations based on extensive and specialized

experience.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 143 L. Ed. 2d 238,

255 (1999).




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      The principle that experience alone or experience combined with knowledge

and training is sufficient to establish a proper foundation for reliable expert

testimony is in line with our previous holding in Carpenter. In Carpenter, our Court

admitted analogous expert testimony under the prior version of Rule 702(a). The

defendant in Carpenter argued that the trial court erred by admitting expert witness

testimony from a licensed clinical social worker that “delayed and incomplete

disclosures are not unusual in cases of child abuse[.]” Carpenter, 147 N.C. App. at

393, 556 S.E.2d at 321. The defendant asserted, inter alia, that the State had failed

to establish that there was any scientific foundation for this opinion testimony and

our Court rejected his argument. Id. Our Court reasoned as follows:

             Though she did not specifically cite supporting texts,
             articles, or data, [the expert witness] testified on voir dire
             that she was basing her conclusions on literature, journal
             articles, training, and her experience. Thus, a proper
             foundation was established for her opinion testimony. In
             her testimony, [the expert witness] explained general
             characteristics of children who have been abused. [The
             expert witness] testified that an abused child often delays
             disclosing the abuse and offered various reasons an abused
             child would continue to cooperate with an abuser. [The
             expert witness] did not testify as to her opinion with
             respect to [the victim’s] credibility.

                    Evidence similar to that offered by [the expert
             witness] has been held admissible to assist the jury. See
             State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988)
             (finding expert testimony as to why a child would cooperate
             with adult who had been sexually abusing child
             admissible); State v. Richardson, 112 N.C. App. 58, 434
             S.E.2d 657 (1993), disc. review denied, 335 N.C. 563, 441


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                                    Opinion of the Court



             S.E.2d 132 (1994) (concluding trial court did not err in
             admitting testimony describing general symptoms and
             characteristics of sexually abused children to explain the
             victim’s behavior); State v. Bowman, 84 N.C. App. 238, 352
             S.E.2d 437 (1987) (holding trial court was proper in
             admitting a doctor’s testimony that a delay between the
             occurrence of an incident of child sexual abuse and the
             child’s revelation of the incident was the usual pattern of
             conduct for victims of child sexual abuse). Thus, for the
             foregoing reasons we hold that the trial court did not abuse
             its discretion in admitting [the expert witness’] testimony.

Id. at 394, 556 S.E.2d at 321-22.

      We find the circumstances in Carpenter and the case sub judice to be

substantially similar. In Carpenter, our Court held that a proper foundation for the

expert witness’ testimony was established when the expert testified that her

testimony was based on literature, journal articles, training, and experience.

Likewise, Wood testified that her testimony on delayed disclosures was grounded in

her 200 hours of training, eleven years of forensic interviewing experience,

conducting over 1,200 forensic interviews with 90% of those focusing on sex abuse

allegations, and reviewing over twenty articles on delayed disclosures. Wood, like

the expert in Carpenter, testified about delayed disclosures in general terms and did

not express an opinion as to the alleged victim’s credibility. We hold that Carpenter

is still good law as it does not conflict with the reliability requirements of the Daubert

standard. See McGrady, 368 N.C. at 888, 787 S.E.2d at 8.




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                                  Opinion of the Court



      Based on the foregoing, Wood’s testimony on delayed disclosures was clearly

based upon facts or data sufficient to satisfy the first prong of Rule 702(a), and the

trial court did not abuse its discretion in admitting this testimony.

      Second, an expert’s testimony must be the product of reliable principles and

methods pursuant to Rule 702(a)(2). Defendant argues that Wood’s testimony is not

reliable because the research she relied upon was flawed in the following ways: they

assumed participants were honest; they did not have any methods or protocols in

place to screen out participants who made false allegations; and because there was

no indication of how many participants might have lied, it was impossible to know

the “error rate.” Defendant also argues that when Wood provided a list of possible

reasons why an alleged victim might delay disclosure, she did not account for the

obvious alternative explanation that the abuse did not occur.

      A careful review of the transcript establishes that these concerns were

addressed throughout the examination and cross-examination of Wood and that

Wood was able to provide detailed explanations for each.

      During cross-examination by defense counsel on whether the research she had

reviewed eliminated delayed disclosures that were based on false allegations of child

sexual abuse, Wood testified, “I’ve looked at both research that deal with children

who have identified a positive disclosure and a negative disclosure, and they both do

talk about delayed disclosures that is found in – throughout the research.” As to



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                                  Opinion of the Court



defendant’s argument that the research assumed participants were honest, Wood

explained that the research on delayed disclosures was not focused on making a

determination of whether the alleged sexual abuse had in fact occurred:

            [WOOD:] . . . In the research they are – the researchers,
            from my understanding, at least the research that I have
            read, are not asking if it’s true or false; they’re taking from
            the – their methodology, they’re asking, whether children
            or adults, to become participants if they have been victims,
            and so they’re already supposing that the participants are
            victims.

      Regarding defendant’s argument that there were no methods or protocols in

place to screen out participants making false allegations and thus, no way to obtain

an error rate, Wood explained that there was not an identifiable method to

ascertaining whether the participants were in fact sexually abused:

            [DEFENSE COUNSEL:] Okay. So they’re supposing that
            they’re victims but it’s not ascertained.

            [WOOD:] It’s not. Based on the participants, the
            participants are saying –

            ....

            [DEFENSE COUNSEL:] Right. And so there’s no digging
            down beneath the surface to see if those participants are
            being truthful about being abused.

            [WOOD:] You mean, like, are they making them take a lie
            detector test?

            [DEFENSE COUNSEL:] Or doing anything to find out if
            they’re being truthful.



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             [WOOD:] I don’t know how else someone would find out
             the truth about child sexual abuse.

             [DEFENSE COUNSEL:] Exactly. So in these studies
             there’s no way to know whether the participants who
             delayed reporting delayed reporting [sic] of a false
             occurrence or a true occurrence.

             [WOOD:] Well, I guess they are just going by what the
             participants are saying.

Wood’s clarification demonstrated that obtaining the “known or potential rate of

error” was not pertinent in assessing reliability based on the nature of delayed

disclosures. See McGrady, 368 N.C. at 890, 787 S.E.2d at 9 (stating that the “precise

nature of the reliability inquiry will vary from case to case depending on the nature

of the proposed testimony.”).

      When asked by defense counsel if the research Wood reviewed involved a

scientific data or theory, Wood suggested that if one method would be the creation of

a control group, an ethical question would be raised in the context of delayed

disclosures: “it would be unethical to have a control group to abuse children and

uncontrol group to not abuse children.” She further explained that: “I think that the

theories that I have found is, is that they took populations that the researchers have

gathered in their research; and according to multiple research articles, some of those

same theories cross all the research, is similar.”




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                                    Opinion of the Court



      Lastly, in regards to defendant’s argument that Wood did not account for

alternative explanations of delayed disclosures, Wood’s testimony reflected that she

was identifying a non-exhaustive list of possible reasons:

             [THE STATE:] [] What are some of the reasons that a
             child, based on research and experience, in general, may
             delay disclosure?

             ....

             [WOOD:] There are numerous reasons. Some of them are
             due to fear . . . . Then, also, blame and self-guilt . . . . Also,
             concern that if they tell, what will happen to their
             family. . . . and so some of those are the reasons that
             children do not tell immediately.

(emphasis added).

      In sum, defendant has failed to demonstrate that his arguments attacking the

principles and methods of Wood’s testimony were pertinent in assessing the

reliability of Wood’s testimony on delayed disclosures. See Kumho, 526 U.S. at 150,

143 L. Ed. 2d at 251-52 (stating that the Daubert factors “may or may not be pertinent

in assessing reliability, depending on the nature of the issue, the expert’s particular

expertise, and the subject of his [or her] testimony.”). Accordingly, we hold that

Wood’s testimony was the product of reliable principles and methods sufficient to

satisfy the second prong of Rule 702(a), and the trial court did not abuse its discretion

in admitting this testimony.

                       B.      Ineffective Assistance of Counsel



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                                   Opinion of the Court



      In his second argument on appeal, defendant contends that he received

ineffective assistance of counsel (“IAC”) when his attorney elicited evidence of guilt

that the State had not introduced. Specifically, defendant argues that while the State

only elicited testimony from H.M. about one instance of sexual intercourse with

defendant, defense counsel asked H.M. a leading question implying that she had sex

with defendant on two occasions.

      Defendant directs us to the following exchange that occurred during defense

counsel’s cross-examination of H.M.:

             [DEFENSE COUNSEL:] So the first weekend that my
             client, according to you, inappropriately touched you and
             put his hands in your vagina and actually, you said, had
             sexual intercourse with you, you didn’t tell your dad, did
             you?

             [H.M.:] No.

             ....

             [DEFENSE COUNSEL:] So how many times are you
             saying that my client had actually put his penis inside of
             you, how many different nights?

             [H.M.:] Two times.

      In the present case, the record is not sufficiently complete to determine

whether defendant’s IAC claim has merit. See State v. Fair, 354 N.C. 131, 166, 557

S.E.2d 500, 524 (2001) (“IAC claims brought on direct review will be decided on the

merits when the cold record reveals that no further investigation is required . . . .”).



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                                   Opinion of the Court



“Trial counsel’s strategy and the reasons therefor are not readily apparent from the

record, and more information must be developed to determine if defendant’s claim

satisfies the Strickland test.” State v. Al-Bayyinah, 359 N.C. 741, 753, 616 S.E.2d

500, 509-10 (2005), cert. denied, 547 U.S. 1076, 164 L. Ed. 2d 528 (2006). Accordingly,

the claim is premature and we are obligated to dismiss it “without prejudice to the

defendant’s right to assert [it] during a subsequent MAR proceeding.” Fair, 354 N.C.

at 167, 557 S.E.2d at 525.

                                     C.     Mistrial

      In his third argument, defendant contends that the trial court erred by failing

to declare a mistrial sua sponte after H.M.’s father engaged in a “pattern of abusive

and prejudicial behavior” during defendant’s trial. In our previous decision, we relied

on State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004), and held that

defendant did not preserve this argument for appellate review. In accordance with

the Supreme Court’s 1 March 2018 remand order, we now address the merits of

defendant’s argument that the trial court erred by failing to declare a mistrial sua

sponte. After a careful review of the record, we hold that the trial court did not abuse

its discretion by failing to declare a mistrial sua sponte.

                   Upon motion of a defendant or with his concurrence
             the judge may declare a mistrial at any time during the
             trial. The judge must declare a mistrial upon the
             defendant’s motion if there occurs during the trial an error
             or legal defect in the proceedings, or conduct inside or
             outside the courtroom, resulting in substantial and


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                                  Opinion of the Court



             irreparable prejudice to the defendant’s case.

N.C. Gen. Stat. § 15A-1061 (2015). “It is well settled that a motion for a mistrial and

the determination of whether defendant’s case has been irreparably and substantially

prejudiced is within the trial court’s sound discretion.” State v. McNeill, 349 N.C.

634, 646, 509 S.E.2d 415, 422-23 (1998) (citation omitted), cert. denied, 528 U.S. 838,

145 L. Ed. 2d 87 (1999).

      In the present case, defendant points to several instances of conduct by H.M.’s

father which he contends disrupted the “atmosphere of judicial calm” to which he was

entitled. The first instance occurred in October 2015 at defendant’s original court

date which was later rescheduled.      The trial court judge had just informed the

audience to “maintain proper courtroom decorum at all times.” Thereafter, defense

counsel informed the trial court as follows:

             [DEFENSE COUNSEL:] Your Honor, related to that, I
             would ask the Court not just in the courtroom, but outside
             the courtroom. This morning the alleged victim’s father in
             a very loud voice made some derogatory comments to me
             about my client.

                    And since we’re going to have jurors, prospective
             jurors in that hallway during the course of jury selection
             and the trial itself, I would ask the Court to instruct him
             not to do that in the hallway because jurors are everywhere
             in this courthouse.

The trial court judge responded by stating:

             THE COURT: There is to be no contact; all right? And I
             expect that from everyone. Look, this is a – court’s a place


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                                  Opinion of the Court



             where trials are tried in the courtroom and not in the
             hallway.    And I’m not going to have any type of
             intimidation by anybody take place, a witness, a party, the
             defendant, the victim. It’s just not going to happen.

                   And if it’s reported to me that it does occur, you have
             been warned and I will deal with it appropriately; all right?

The second instance occurred in April 2016, prior to the commencement of jury

selection:

             [DEFENSE COUNSEL:] Your Honor, one more thing.
             This is a security matter for the courtroom staff. I’ve been
             informed by [defendant] and his girlfriend, they are both
             present in court today, both are inside the courtroom, that
             [H.M.’s father] approached my client and said something to
             the effect of – pardon my French – but f*** with my
             daughter, I’m going to f*** with you then he was on the
             phone standing close enough that his comments could be
             heard on the phone saying if [H.M.’s] mother was still alive,
             [defendant] would be dead, and, finally, that I’m going to
             kill the motherf***er. So we had some of these issues six
             months ago when we started this trial, and they’re popping
             up again, and I’m very concerned about him sort of
             threatening when they got here. And the police may be
             made aware of this later when we finish with court, but I
             just wanted the Court and staff to know about the security
             concerns that I have with my client and others.

             THE COURT: I appreciate you making the courtroom and
             the court officers aware of that. All right.

Defendant also points to several occasions during H.M.’s father’s testimony where he

was “admonished” by the trial court:

             THE COURT: If you know what [defense counsel is]
             asking, answer. If you don’t, say you don’t know.



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                    Opinion of the Court



....

THE COURT: Listen to [defense counsel’s] question.

....

THE COURT: Sir, wait for the next question, please.

....

[DEFENSE COUNSEL:] So going back to the morning
that you discovered this on February 22nd, you speak to
police at the scene of the karate studio, and then it’s
another couple weeks before Detective Bridges follows up
and does anything?

[H.M.’S FATHER:] Yeah. That’s the good old Mecklenburg
County court system, sir.

THE COURT: Sir, if I have to keep admonishing you one
more time –

[H.M.’S FATHER:] I apologize.

THE COURT: I’m going to – don’t interrupt me. – about
answering these questions directly, I’m going [to] exclude
you from this trial and strike your testimony from the
record, and you’re going to be out in the hallway. Do you
understand me?

[H.M.’S FATHER:] Yes, sir.

THE COURT: All right. Let’s – I’m tired of this. Answer
the lawyers’ questions directly. Don’t throw in editorial
comments, don’t threaten the lawyers or anybody else in
this courtroom, and answer these questions, and let’s move
on with this. I’m sorry, [defense counsel.] Go ahead.




                           - 29 -
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                                  Opinion of the Court



      The record demonstrates that the trial judge took immediate measures to

address H.M.’s father’s behavior, and ordered him to answer questions directly and

refrain from making editorial comments or threats. In each of these instances,

defendant did not request additional action by the trial court, move for a mistrial, or

object to the trial court’s method of handling the alleged misconduct in the courtroom.

We note that, with regard to each act that the defendant characterizes as abusive and

prejudicial, the trial judge was in the best position to investigate any allegations of

misconduct. See State v. Washington, 141 N.C. App. 354, 376, 540 S.E.2d 388, 403

(2000) (citation omitted). In light of the immediate and reasonable steps taken by the

trial court to address H.M.’s father’s behavior, and the totality of the facts and

circumstances of the case, we find that the trial court did not abuse its discretion

when it did not sua sponte declare a mistrial. Therefore, we find this argument to be

without merit.

                   D.     Trial Court’s Ruling in Presence of Jury

      In his final argument on appeal, defendant asserts that the trial court

impermissibly expressed an opinion on the evidence by denying defendant’s motion

to dismiss in the presence of the jury, in violation of N.C. Gen. Stat. § 15A-1222.

Specifically, defendant argues that because the trial court’s ruling was audible to the

jury, the exchange was a “focal point” of the jury’s short trip to the courtroom, and

the jury was not made aware of the difference in the standards of proof necessary to



                                         - 30 -
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                                  Opinion of the Court



survive a motion to dismiss as compared to obtaining a conviction, the trial court’s

ruling carried a substantial risk of prejudice. We are not convinced by defendant’s

arguments.

      N.C. Gen. Stat. § 15A-1222 provides that “[t]he 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 (2015).

      We find the holding in State v. Welch, 65 N.C. App. 390, 308 S.E.2d 910 (1983),

to be controlling on this issue. The defendant in Welch argued that the trial court

expressed an opinion, in violation of N.C. Gen. Stat. § 15A-1222, by summarily

denying his motion to dismiss while in the presence of the jury. Id. at 393-94, 308

S.E.2d at 912. Our Court stated as follows:

             The record, however, does not affirmatively disclose that
             the ruling was in fact audible to the jurors. Defendant did
             not seek to have the ruling made out of the presence of the
             jury, nor did he object or move for mistrial on this account
             at trial. Generally, ordinary rulings by the court in the
             course of trial do not amount to an impermissible
             expression of opinion. State v. Gooche, 58 N.C. App. 582,
             586-87, 294 S.E.2d 13, 15-16, modified on other grounds,
             307 N.C. 253, 297 S.E.2d 599 (1982). At most the ruling
             here merely informed the jury that the evidence was
             sufficient to allow it to decide the case. On this record no
             prejudice to defendant appears.

Id. at 393-94, 308 S.E.2d at 912-13.

      The circumstances found in Welch are analogous to those found in the present

case. At the close of the State’s evidence and outside the presence of the jury,


                                         - 31 -
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                                 Opinion of the Court



defendant made a motion to dismiss the remaining charges. The trial court denied

this motion.   The next day, following the presentation of defendant’s evidence,

defendant renewed his motion to dismiss while the jury was present. Again, the trial

court denied his motion. Defendant did not seek to have the ruling made outside the

presence of the jury, he did not object, and he did not move for a mistrial on this

account. Accordingly, we hold that defendant’s argument is meritless.

      NO ERROR.

      Judges ELMORE and DIETZ concur.




                                        - 32 -
