North Carolina Lawyers Weekly
As the state concedes, where the defendant-father was charged with sexually abusing his daughter, “Virginia,” the trial court erred when it allowed a DSS investigator to testify, “If we believe those allegations to be true, we will substantiate a case … We substantiated sexual abuse naming [defendant] as the perpetrator.” Because there was no physical evidence that Virginia was sexually abused, and because the jury’s decision to find Virginia more credible than defendant clearly formed the basis of its verdict, the error was prejudicial.
We affirm the Court of Appeals’ conclusion that defendant is entitled to a new trial.
This case is similar to State v. Towe, 366 N.C. 56, 732 S.E.2d 564 (2012), and we reach the same result. Although other evidence served to corroborate Virginia’s testimony, there was no other direct evidence of abuse. The state presented testimony from close family members describing Virginia’s behavior around the time of the alleged assaults, and the state offered testimony from Virginia’s aunt, describing a similar sexual assault on her by defendant.
Under these circumstances, the impermissible vouching testimony stilled any doubts the jury might have had about the victim’s credibility or defendant’s culpability, and thus had a probable impact on the jury’s finding that defendant is guilty.
Our review of the record convinces us that the state presented no evidence supplying an alternative basis for the jury’s conclusion that defendant was guilty besides the jury’s determination that Virginia was more credible than defendant.
Affirmed.
Dissent
(Newby, J.) The DSS investigator explained that substantiation is for social work purposes, not trial purposes. In addition, the jury heard extensive testimony from other witnesses corroborating Virginia’s consistent story—testimony of her behavior change, testimony from an expert regarding delayed disclosures, testimony of defendant’s demeanor during his denial of the events, and testimony from both Virginia and defendant’s sister detailing defendant’s similarly idiosyncratic behavior after each victim’s sexual assaults.
This case is distinguishable from Towe in that (1) the expert there was referred to by multiple witnesses, (2) the Towe victim’s story was inconsistent, and (3) unlike the defendant here, Towe did not testify. There was no plain error in this case.
State v. Warden (Lawyers Weekly No. 010-162-20, 15 pp.) (Anita Earls, J.) Appealed from the Superior Court in Rockingham County (Gregory Hayes, J.) On appeal from the Court of Appeals. Margaret Force for the state; Mark Montgomery for defendant. N.C. S. Ct.
