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NO. COA98-1329
NORTH CAROLINA COURT OF APPEALS
Filed:  19 October  1999
STATE OF NORTH CAROLINA
v.
FREDERICK MICHAEL MARINE,
Defendant.
Appeal by defendant from judgment entered  30 January  1998 by
Judge Zoro J. Guice, Jr. in McDowell County Superior Court.
Heard in the Court of Appeals  14 September  1999.
Attorney General Michael F. Easley, by Associate Attorney
General Curtis O. Massey, II, for the State.
Lynch & Taylor, by Anthony Lynch, for defendant-appellant.
LEWIS, Judge.
Defendant was tried at the  20 January  1998 Session of
McDowell County Superior Court for the rape of a twelve-year old
girl  ("R") on  2 January  1997.    The charge of first degree
statutory rape was submitted to the jury, which returned a
verdict of guilty on  30 January  1998.    Defendant now appeals.
Defendant first argues that R's family counselor, Sarah
Wells, who testified as an expert witness for the State at trial,
improperly commented on R's credibility, in violation of Rules
405(a) and  608(a) of the North Carolina Rules of Evidence.
Specifically, defendant contends that the following testimony by
Ms. Wells amounted to commenting on R's credibility:
Q:    The signs that you've just described




that you observed and looked for to
indicate deceptiveness, what did you
observe about  [R] in that light?
[Objection; overruled.]
A:                                                                          [R]'s behavior was typically--it was
guarded but straight forward.    Children
who are making this stuff up want people
to know so they talk about it.    I'm not-
- I wasn't convinced that  [R] had enough
sexual education from adults or even
from what she learned from kids around
her to have been able to describe what
she had described to the police.    Those
were both clear indicators to me that
[R] was being very honest in her--
(Tr. at  752).
Rule  608(a) of the North Carolina Rules of Evidence permits
the use of reputation or opinion testimony in order to bolster
another witness' credibility, so long as it is done in accordance
with Rule  405(a).    Rule  405(a) then explicitly prohibits expert
testimony regarding a witness' character.    When read together,
the Rules of Evidence thus prohibit an expert witness from
commenting on the credibility of another witness.    State v. Wise,
326 N.C.  421,  426,  390 S.E.2d  142,  145, cert. denied,  498 U.S.
853,  112 L. Ed.  2d  113  (1990).
On the other side of the coin, however, Rule  702 permits
expert witnesses to explain the bases of their opinions.    Thus,
"a witness who renders an expert opinion may also testify as to
the reliability of the information upon which he based his
opinion."    State v. Jones,  339 N.C.  114,  146,  451 S.E.2d  826,  842
(1994), cert. denied,  515 U.S.  1169,  132 L. Ed.  2d  873  (1995).
Furthermore, the mental and emotional state of the victim before,
during, and after a rape or sexual assault is relevant testimony




that can help assist the trier of fact in understanding the basis
of that expert's opinion.    State v. Kennedy,  320 N.C.  20,  30-31,
357 S.E.2d  359,  366  (1987).      A survey of our case law
illustrates the line between properly explaining the basis of an
expert's opinion and improperly commenting on a witness'
credibility.
For example, in State v. Wise, our Supreme Court held that
the following line of questioning was proper:
Q:    Now ma'am, could you describe her
emotionally when she was telling you
these things during these counseling
sessions?
A:    Genuine.
Wise,  326 N.C. at  425,  390 S.E.2d at  145.    The Wise court
reasoned that the expert was only describing her observations as
to the victim's emotions, not the credibility of the victim
herself.    Id. at  427,  390 S.E.2d at  146.    Likewise, our Supreme
Court also held as proper the following response when an expert
was asked to explain the victim's performance on certain tests:
"[She responded in an] honest fashion  .  .  . admitting that she
was in a fair amount of emotional distress."    Kennedy,  320 N.C.
at  30,  357 S.E.2d at  366.    That court reasoned the expert was
simply commenting on the reliability of the test results.    Id. at
31,  357 S.E.2d at  366.    And this Court, in State v. Jenkins,  83
N.C. App.  616,  351 S.E.2d  299  (1986), cert. denied,  319 N.C.  675,
356 S.E.2d  791  (1987), concluded that the following questioning
was permissible:
Q:    Are you saying from your practice in
your particular profession children
don't fantasize?




A:    Not to that extent.  .  .                                          . I do not
believe children will lie concerning
sexual abuse.  .  .                                                      . I don't believe they
make up stories along those lines.
Id. at  624,  351 S.E.2d at  304  (citing State v. Raye,  73 N.C. App.
273,  326 S.E.2d  333, disc. review denied,  313 N.C.  609,  332
S.E.2d  183  (1985)).    We reasoned in Jenkins that the expert was
simply explaining the basis of her opinion by referring to
children in general, as opposed to the victim in particular.    Id.
On the other side of the line, our Supreme Court concluded
that the following questioning amounted to improper comments as
to the victim's credibility:
Q:    Mrs. Broadwell, do you have an opinion
satisfactory to yourself as to whether
or not  [V] was suffering from any type
of mental condition in early June of
1983, or a mental condition which could
or might have caused her to make up a
story about the sexual assault?
[Objection; overruled.]
A:    There is nothing in the record or
current behavior that indicates that she
has a record of lying.
State v. Heath,  316 N.C.  337,  340,  341 S.E.2d  565,  567  (1986).
The Heath court reasoned that, although couched in terms of a
mental condition, the question was actually intended to elicit an
opinion as to whether or not the victim had been lying.    Id. at
342,  341 S.E.2d at  568.    In State v. Teeter,  85 N.C. App.  624,
355 S.E.2d  804, disc. review denied,  320 N.C.  175,  358 S.E.2d  67
(1987), this Court reached the same conclusion as to the
following question and response:
Q:    And tell the members of the jury why you
believed  [R] was telling the truth.




[Objection; overruled.]
A:    When I talk with children or adults who
have been sexually abused, I typically
try to get them to tell me the story
from different angles.    Every time I
went to  [R] to go back to the story, her
story was always consistent  .  .  .
Id. at  631-32,  355 S.E.2d at  808.    And finally, in State v.
Jenkins, this Court again held that the following line of
questioning violated Rules  608(a) and  405(a):
Q:    Do you have an opinion as to whether
when  [X] states that an adult female,
Beverly Jenkins, has tied him in a chair
naked, and has touched his private
parts, can he be making these things up?
A:    Yes.    I have an opinion.
Q:      What is that opinion?
A:    My opinion is he is not making up the--
if he has said that he has been sexually
abused, he is not making that up.
Children do not lie about sexual abuse.
Jenkins,  83 N.C. App. at  623,  351 S.E.2d at  303.
Admittedly, the line between proper and improper questioning
can be quite narrow, especially in the context of sexual assault
and rape cases.    This Court, for example, recently struggled over
an expert's testimony, "I believed that  [the victim] was a
reliable informant."    State v. Bright,  131 N.C. App.  57,  60,  505
S.E.2d  317,  319  (1998).    One judge concluded this was proper to
explain why the expert could rely on the victim's information.
Id. at  60-61,  505 S.E.2d at  319.    The remaining two judges
concurred in the result but concluded that the expert's response
violated Rules  405(a) and  608(a).    Id. at  62,  505 S.E.2d at  321
(Greene, J., concurring).    Although Bright illustrates how narrow




the line can be, we do not feel Ms. Wells' testimony crossed that
line here into commenting on R's credibility.
Ms. Wells' opinion was that R suffered from post traumatic
stress syndrome disorder  ("PTSSD").    Under Rule  702, Ms. Wells
could explain how she concluded that R suffered from PTSSD,
including testifying as to R's mental and emotional state and as
to the reliability of the information used to formulate her
opinion.    In formulating her opinion, Ms. Wells explained that
one of the indicators of PTSSD is that the victim "has
experienced actual or threatened serious injury or threat to her
physical integrity."                                                 (Tr. at  748).    The testimony complained of
here simply seeks to explain why Ms. Wells felt R had experienced
a traumatic event: R's behavior and lack of sexual education
convinced Ms. Wells that the information she was using to
formulate her opinion was reliable.    In short then, Ms. Wells'
testimony went to the reliability of her diagnosis, not to R's
credibility.    Accordingly, this was a permissive use of expert
testimony under Rule  702.
Next, defendant assigns as error the admission of certain
testimony suggesting that defendant stole a bracelet when the
testifying witness admitted she had no knowledge as to whether
the bracelet had been stolen.    During the State's case-in-chief,
N, a young girl who lived in the same neighborhood as R and the
defendant, testified that defendant's girlfriend once visited her
in order to return her bracelet.    The following questioning then
transpired:
Q:    How did  [defendant's girlfriend] come to
have your bracelet, if you know?




A:    Either it was tooken  [sic]--
[DEFENSE COUNSEL]:   Objection, if she
doesn't know, she shouldn't be
testifying about it.
[COURT]: If she knows.
A:    Either it was tooken  [sic] or I gave it
to somebody who dropped it.    I'm not
sure.
(Tr. at  558-59).    Defense counsel made no further objection, nor
did he move to strike or request an instruction that the jury
disregard.    His failure to do so renders his objection waived.
In response to defense counsel's objection, the trial judge
ruled that N's response was admissible only "[i]f she knows."
When N confessed that she did not know, her response thereby
became inadmissible.    It was then defense counsel's duty to move
to strike the earlier testimony through a new motion.    Cf. State
v. Jordan,  305 N.C.  274,  276-77,  287 S.E.2d  827,  829  (1982)
(stating it was defendant's obligation to move to strike earlier
objected-to testimony relating to a letter once it became
apparent that the testimony was inadmissible because the letter
itself was ruled inadmissible).    Because defendant failed to make
a timely new objection or motion to strike, his assignment of
error fails.    Wise,  326 N.C. at  425,  390 S.E.2d at  145  ("When an
objection is not timely made, it is waived.").
Defendant next argues that certain testimony elicited from
the victim's mother violated his motion in limine.    That motion
in limine, granted by the trial court, prohibited the State from
"offering any testimony that the McDowell County Sheriff's
Department or any law enforcement agency was investigating




defendant for the use or distribution of controlled substances."
Defendant contends that this was violated when, on cross-
examination by defense counsel, the victim's mother testified:
I called McDowell County Sheriff's Department
to report that there was a person out at Twin
Lakes that I suspected of selling drugs to
the kids out there, and it was  [defendant].
(Tr. at  445).    Because the trial judge offered a curative
instruction, and because the error, if any, was harmless, we
reject defendant's argument.
Immediately after this testimony was offered, the trial
judge instructed the jury to disregard it.    "When a jury is
instructed to disregard improperly admitted testimony, the
presumption is that it will disregard the testimony."    State v.
McCraw,  300 N.C.  610,  620,  268 S.E.2d  173,  179  (1980).    Defendant
has pointed to nothing in the record, nor can we find anything,
that even remotely suggests the jury failed to follow this
instruction.
Furthermore, the error, if any, was harmless.    During his
case-in-chief, defense counsel specifically questioned
defendant's former fiancée regarding the police investigation
into defendant's distribution of drugs:
Q:    How many times did you see  [Detective]
Tom Farmer out at your trailer in March
and April,  1997?
A:    Three.
Q:    Did he come to see you each time?
A:    Yes.
Q:    The first time he came to you, did he
come to ask you questions about sex and
improper contacts with young girls?




A:    Not the first time.
Q:    What did he ask you about then?
A:    The first time he asked if  [defendant]
had been dealing drugs from the trailer?
Q:    Do you have any idea  .  .  . why this man
would think y'all were dealing guns out
of that trailer?
A:    No.
Q:    Or drugs?
A:    No.
(Tr. at  869,  871).    To receive a new trial, defendant must show
"a reasonable possibility that, had the error in question not
been committed, a different result would have been reached at the
trial."    N.C. Gen. Stat.  §  15A-1443(a)  (1997).    Given that the
jury also heard this testimony from a defense witness regarding
defendant's suspected distribution of drugs, we fail to see how
non-commission of the alleged error would have led to a different
result at trial.
Finally, defendant contests the admission of certain
testimony as hearsay.    Defendant objects first to the following
testimony of Detective Kelly Reeves:
Q:    What did  [A] say to you?
[Objection; overruled.]
A:                                                                      [A] had indicated to us that a girl that
he knew had been raped by  [defendant],
had stated that he had knew  [sic] some
other children in the park that
[defendant] had touched--
Q:    Do you recall if  [A] was able to tell




Detective Farmer specifically who his
friend was that had been raped by the
[d]efendant?
[Objection; overruled.]
A:    He said  [R].
(Tr. at  271,  273).    Our courts have long held that statements
offered to corroborate previous testimony are not hearsay because
they are not offered to prove the truth of the matter asserted.
State v. Holden,  321 N.C.  125,  142,  362 S.E.2d  513,  525  (1987),
cert. denied,  486 U.S.  1061,  100 L. Ed.  2d  935  (1988).    Detective
Reeves' testimony here was specifically offered to corroborate
the testimony of A and the jury was instructed to that effect.
Accordingly, his testimony was admissible so long as it was
"generally consistent with the  [other] witness's testimony."
State v. Locklear,  320 N.C.  754,  762,  360 S.E.2d  682,  686  (1987).
A testified as follows:
Q:    Tell the jury what you told Detective
Reeves and Detective Farmer when they
came out to Twin Lakes that day?
A:    I told them about how  [defendant] always
had his hands on everybody when we would
play the games.    I told them what  [R]
told me that  [defendant] had done to her
(Tr. at  290-91).    Though different words were used, the substance
of Detective Reeves' testimony was generally consistent with the
testimony of A.    Slight variations between the prior testimony
and the corroborating testimony do not render the corroborating
testimony inadmissible.    State v. Case,  253 N.C.  130,  135,  116
S.E.2d  429,  433  (1960), cert. denied,  365 U.S.  830,  5 L. Ed.  2d
707  (1961).    Accordingly, the trial court did not err in




admitting Detective Reeves' testimony for corroborative purposes.
Defendant also objects to the following response by A,
arguing it constitutes double hearsay:
A:    I told  [Detective Farmer] that  [R] had
told me--
[DEFENSE COUNSEL]:   Objection.
[COURT]:   Overruled.
A:                                                                  --that  [B] had told  [R]--
[DEFENSE COUNSEL]:   Objection.
[COURT]:   Overruled.
[DEFENSE COUNSEL]:   It's double hearsay,
Your Honor.
[COURT]:   Overruled.
A:                                                                  --that she had slept with  [defendant].
(Tr. at  292).    Again, we conclude that the error, if any, was
harmless.    Defendant contends that this response tended to show
he was sexually promiscuous, thereby prejudicing him.    However,
the jury heard ample other evidence already suggesting
defendant's promiscuity.    Four other children testified to the
jury that defendant had previously touched them in their breasts,
crotch, or both.    The additional testimony of A complained of
here did not further prejudice defendant such that a different
result would have occurred at trial.
No error.
Judges MARTIN and HUNTER concur.

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