State v. Casey

263 N.C.App. 510

823 S.E.2d 906

STATE of North Carolina

v.Timothy Ray CASEY, Defendant.

No. COA18-269

Court of Appeals of North Carolina.

Filed: January 15, 2019

Attorney General Joshua H. Stein, by Special Deputy Attorney General Anne M. Middleton, for the State.

North Carolina Prisoner Legal Services, Inc., by Lauren E. Miller, for the Defendant.

DILLON, Judge.

This present appeal is the second to our Court in this matter. In the first appeal, we found no error in the judgment convicting Defendant Timothy Ray Casey ("Defendant") of various sexual crimes. In this present appeal, Defendant seeks review of the trial court's order denying his Motion for Appropriate Relief ("MAR") seeking a new trial for ineffective assistance of his trial counsel and of his appellate counsel. For the reasons explained herein, we reverse the trial court's order and remand with instructions to enter an order granting Defendant's MAR.

I. Background

Defendant was indicted on one count of statutory sexual offense and two counts of taking indecent liberties, stemming from alleged encounters with the minor daughter ("Kim")¹ of his then live-in girlfriend.

The evidence at trial tended to show as follows: In 1996, when Kim was five years of age, Defendant moved in with Kim and her mother. Nine years later, on 1 January 2006, when Kim was fourteen years of age, Defendant broke up with Kim's mother and moved out. Two days later, on 3 January 2006, Kim told her mother, who was upset about the breakup, that Defendant had molested her during the nine-year period he had lived with them.

The State offered no physical evidence of the alleged sexual abuse or that Kim had told anyone of the abuse prior to telling her mother.

The State did call other witnesses, including a clinical psychologist, qualified as an expert. This expert opined on direct examination that Kim exhibited signs consistent with being sexually abused. During cross-examination, however, the expert went further and made statements that Kim had, in fact, been sexually abused. Defendant's trial counsel made no motion to strike these statements.

The jury found Defendant guilty of all charges. Defendant appealed to this Court. During the first appeal to our Court, Defendant argued, in part, that the expert's testimony offered on direct – that Kim exhibited signs consistent with sexual abuse – amounted to impermissible vouching. Defendant's appellate counsel made no argument concerning the expert's statements made during cross-examination that Kim had been sexually abused. We found no error, never addressing any issues concerning the expert's statements made during cross-examination.²

Defendant subsequently filed a MAR with the trial court, alleging ineffective assistance by both his trial counsel and his appellate counsel. The trial court issued an order denying Defendant's MAR.

Defendant petitioned this Court for a writ of certiorari to review the order. We granted Defendant's petition and now review the merits of his arguments.

II. Standard of Review

We review the trial court's Order denying Defendant's MAR for "whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court." State v. Stevens , 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). Based on the following, we reverse and remand for a new trial.

III. Analysis

Defendant argues that the trial court should have granted his MAR based on the ineffective assistance of counsel he received at the trial level and at the appellate level. For the following reasons, we conclude that (1) the testimony offered by the State's expert that Kim had, in fact, been sexually abused was inadmissible; (2) Defendant has waived any argument concerning whether he was denied effective assistance of trial counsel; and (3) Defendant was denied effective assistance of appellate counsel in his first appeal when counsel failed to make any argument in the first appeal concerning the expert's testimony that Kim had, in fact, been sexually abused. Accordingly, Defendant is entitled to a new trial.

A. Testimony by the State's Expert at Trial

Regarding expert opinions offered in sexual offense prosecutions involving a child victim, our Supreme Court has instructed as follows: An expert may offer an opinion as to whether a child presents symptoms or characteristics consistent with those exhibited by children who have, in fact, been sexually abused. See State v. Kennedy , 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987). However, where there is no physical evidence of sexual abuse, an expert may not offer an opinion "that sexual abuse has in fact occurred" in that case. State v. Stancil , 355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002) (reasoning that "absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim's credibility"). And an expert's opinion which bolsters the child's credibility may constitute plain error. State v. Towe , 366 N.C. 56, 62-63, 732 S.E.2d 564, 568 (2012).

During the trial in this matter, the State offered no physical evidence that Kim had been sexually abused.

The State did tender an expert who opined on direct that Kim exhibited characteristics consistent with that of a sexual abuse victim, as generally allowed under our case law, though the basis of his opinion does not seem particularly compelling. That is, he did not base his opinion on the presence of emotional or psychological trauma that he observed in Kim that may also be found in a sexual abuse victim, as he testified that Kim did not exhibit any such signs. Rather, he based his opinion essentially on his belief that Kim was credible, listing two factors: (1) Kim's ability to describe various sexual acts at such a young age and (2) Kim had no reason to lie. We note, though, that Kim was actually fourteen (14) years old when she first reported the abuse and further that Defendant had ended his decade-long relationship with Kim's mother just two days before Kim first reported the abuse:

Q: Doctor, do you have an opinion satisfactory to yourself as to whether or not [Kim] exhibited characteristics of someone who had been sexually abused? ... Could you tell us what that is and your basis for that?

A: My opinion is that she does display characteristics consistent with a child, young adult, adolescent adult who has been sexually abused. The characteristics that would be germane in this case are first that she describes in a plausible way sexual acts. That she describes those acts in a way that are consistent with other sources of information. That she has a – had an age-inappropriate sexual knowledge. [Second] [t]hat she did not have what would appear to be obvious alternative reasons for making a disclosure. ... That she did not have obvious reasons for making a false disclosure .... That would be the extent of my basis.

Q: Thank you, Doctor. No further questions.

In any event, as noted in the trial court's MAR order, Defendant's counsel during the jury trial did properly object to the opinion offered by the State's expert on direct . And Defendant's appellate counsel challenged this opinion in the first appeal. However, as we stated in the first appeal, the State's witness on direct never expressly opined that Kim had, in fact, been sexually abused, just that the manner in which she was able to describe the abuse was consistent with someone who had been sexually abused, an opinion which is generally allowed even where there is no physical evidence of sexual abuse.

Defendant argues in this current appeal that on cross-examination , the State's expert went further by opining that though Kim did not exhibit any characteristics of psychiatric trauma, she had, in fact, been sexually abused:

Q: Well now according to your report, wasn't there – You said that you – you comment on her performance on the Rorschach test and you say there was no indication of any acute psychiatric disturbance.

A: I apologize. I did misspeak. I did conduct evaluation involving the Rorschach, the TAT, and I had [Kim]’s father complete the CAB regarding her.

Q: As a matter of fact, you found nothing unusual about this young lady, did you?

A: Nothing unusual other than my opinion that she had been sexually abused.

Q: And that's your opinion. But now when you are talking about characteristics of sexually abused children that's when you're talking about such things as post-traumatic stress syndrome, are you not?

A: Possibly. Possibly.

(Emphasis added).

And Defendant argues that the State's expert on re-direct again opined that Kim's sexual abuse was a fact. Defendant points to testimony where the State's expert conceded that Kim did not exhibit anxiety, depression, or personality disorders which would be consistent with a sexual abuse victim, but that he still had his "psychiatric concerns" because of "the fact that [Kim] was abused":

Q: What does psychiatric concern, what are you talking about?

A: Well, you know, we've got a big read [sic] book that has all of our psychiatric diagnoses in it which include anxiety and depression and personality disorders and all of those things, and we – she does not fit the diagnostic criteria for any of those disorders. The closest she comes is what's called a V-Code diagnosis, which is not a diagnosis. It's sexual abuse of a child. And so it doesn't have to do in essence with her, that's why it's not a diagnosis of her. It has to do with the fact that she was abused.

(Emphasis added.) The State's expert explained immediately on re-cross what he meant by this statement, specifically that his statement was based on his superior ability as a trained professional to determine whether Kim was being truthful:

Q: And [your statement made on re-direct is] based on her comments to you and nothing else?

A: It's based on her statements to me being consistent with information provided by other individuals, being

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