Volume 361 — North Carolina Reports

<bold>1. Evidence — expert testimony — sexual</bold> <bold>abuse — victim's history combined with physical</bold> <bold>findings</bold> <block_quote> The trial court did not err by admitting a medical expert's opinion that a child had been sexually abused based on the child's statements and physical evidence found during an examination, because: (1) the expert's opinion never implicated the defendant as the perpetrator, and thus, the opinion that the trauma was consistent with the victim's story was not the same as an opinion that the witness was telling the truth; (2) the interlocking factors of the victim's history combined with the physical findings constituted a sufficient basis for the expert opinion that sexual abuse had occurred; and (3) in light of the expert's specialized knowledge in pediatrics and child physical and sexual abuse, her opinion testimony assisted the jury in understanding the evidence presented.</block_quote> <bold>2. Evidence — expert opinion — belief of</bold> <bold>sexual abuse absent physical evidence — plain error</bold> <bold>analysis</bold> <block_quote> The trial court did not commit plain error by admitting an expert's opinion that she would believe the child and diagnose<page_number>Page 93</page_number> abuse even in the absence of physical evidence, because while the expert's statements vouching for the minor child were improper, the jury would not have acquitted defendant if the challenged statements had been excluded when: (1) the case at bar did not rest solely on the victim's credibility; and (2) in addition to the minor child's consistent statements and testimony that defendant had abused her sexually, the jury was able to consider properly admitted evidence that the child exhibited physical signs of repeated sexual abuse, defendant's admissions of bizarre bathing habits with the child, and defendant's thoroughly impeached denials that his showers with the child had any sexual aspect.</block_quote>

<bold>Drugs — positive marijuana metabolite test —</bold> <bold>evidence of presence in system — not evidence of power and</bold> <bold>intent to control use — insufficient evidence of</bold> <bold>possession</bold> <block_quote> A positive urinalysis for marijuana matabolites is not alone sufficient to prove that defendant knowingly and intentionally possessed marijuana, and the trial court here erred by denying defendant's motion to dismiss a charge of possessing marijuana. Such a test, standing alone, indicates only the presence of metabolites, but leaves the jury to speculate on how the substance entered defendant's system. It does not speak to the requirement that defendant have the power and intent to control the use or disposition of the substance.</block_quote> Justice HUDSON did not participate in the consideration or decision of this case.

<bold>1. Constitutional Law — right to unanimous jury</bold> <bold>— evidence showed greater number of incidents committed</bold> <bold>than number of offenses charged</bold> <block_quote> The Court of Appeals erred by reversing eight of defendant's convictions of felonious sexual act with a minor and four indecent liberties convictions based on the fact that it could not determine whether the jury unanimously convicted defendant for specific incidents, and those charges are reinstated. Although the evidence showed a greater number of incidents committed by defendant than the number of offenses with which he was charged and convicted, no jury unanimity problem existed regarding the convictions since while one juror might have found some incidents of misconduct and another juror might have found different incidents of misconduct, the jury as a whole found that improper sexual conduct occurred.</block_quote> <bold>2. Sentencing — aggravating factors</bold> — <bold><italic>Blakely</italic></bold> <bold>error — took advantage of position of</bold> <bold>trust or confidence — harmless error beyond a reasonable</bold> <bold>doubt</bold> <block_quote> The Court of Appeals erred by determining that defendant was entitled to a new sentencing hearing on his five first-degree sexual offense convictions even though a jury did not find the imposed aggravating factor that defendant took advantage of a position of trust or confidence to commit the offense beyond a reasonable doubt, because assuming arguendo <italic>Blakely</italic> error in the present case, any error was harmless beyond a reasonable doubt when: (1) the minor victim's biological parents agreed that<page_number>Page 407</page_number> defendant was to be treated as a stepfather and adult parental figure, and our Supreme Court has held that a parental role is sufficient to support the aggravating factor of abusing a position of trust; (2) defendant cared for the minor victim and her half-siblings on a regular basis while her mother worked, and the jury convicted defendant of ten counts of felonious sexual act with a minor over whom he had assumed the position of a parent residing in the home; and (3) the evidence against defendant in each instance is so overwhelming and uncontroverted that any rational factfinder would have found the aggravating factor beyond a reasonable doubt.</block_quote>

<bold>Appeal and Error; Sentencing — appeal of</bold> <bold>probation revocation — challenge to aggravated sentences</bold> <bold>— improper collateral attack</bold> <block_quote> Defendant could not attack the aggravated sentences imposed and suspended in 11 March 2004 trial court judgments based on <italic>Blakely v. Washington</italic>, <cross_reference>542 U.S. 296</cross_reference> (2004), when appealing from the 9 March 2005 trial court order revoking his probation and activating his sentences, because: (1) defendant cannot question his original sentences when appealing his 2005 probation revocation since such a challenge is an impermissible collateral attack on the sentences imposed pursuant to his 2004 guilty plea; (2) a direct appeal from the original judgment lies only when the sentence is originally entered, and defendant could<page_number>Page 411</page_number> have appealed his 2004 judgments as a matter of right by giving notice of appeal within the time limit mandated by our appellate rules but failed to do so; and (3) <italic>Blakely</italic> is inapplicable to this case when the United States Supreme Court decided <italic>Blakely</italic> on 24 June 2004, and defendant's aggravated sentences entered on 11 March 2004 were not under direct appeal at the time of <italic>Blakely</italic> nor are they now under direct review.</block_quote>

<bold>Constitutional Law; Sentencing —</bold> <bold><italic>Blakely</italic></bold> <bold>error — harmlessness</bold> <block_quote> Assuming that the trial court committed <italic>Blakely</italic> error in finding an aggravating factor and sentencing defendant in the aggravated range, any such error was harmless beyond a reasonable doubt.</block_quote>

<bold>1. Administrative Law — intervention in</bold> <bold>contested case — civil procedure and administrative</bold> <bold>procedure</bold> <block_quote> Intervention in a contested case is controlled by interlocking statutes, N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 24, and N.C.G.S. § <cross_reference>150B-1</cross_reference>(e). The Rules of Civil Procedure allow intervention as a full party, while the Administrative Procedure Act allows intervention to the extent deemed appropriate by the administrative law judge. However, the ALJ's discretion in allowing intervention with the full rights of parties is limited to those who meet the conditions set out in Rule 24.</block_quote> <bold>2. Administrative Law — intervention in contested</bold> <bold>case — administrative rules — scope</bold> <block_quote> An administrative rule must be within the authority delegated by the General Assembly, and the Administrative Code cannot expand the scope of intervention beyond that set out in N.C.G.S. § <cross_reference>150B-23</cross_reference>(d).</block_quote> <bold>3. Civil Procedure — intervention by right —</bold> <bold>direct interest — not sufficient</bold> <block_quote> Intervention under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 24(a) requires a direct and immediate interest relating to the property or transaction for intervention by right. The interest claimed by the<page_number>Page 532</page_number> Shellfish Growers and Coastal Federation, that ditching and draining on petitioner's property could jeopardize shellfish waters, is a general interest in an underlying issue and not a direct interest in the civil penalty, the issue here.</block_quote> <bold>4. Civil Procedure — permissive intervention —</bold> <bold>prejudice to opposing party</bold> <block_quote> Permissive intervention should not have been allowed in this case pursuant to N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 24(b) because of undue prejudice to the petitioner. Intervention late in the process resulted in the expenditure of time and money, affected a parallel federal case, and compelled a late change in trial strategy.</block_quote> Justices TIMMONS-GOODSON and HUDSON did not participate in the consideration or decision of this case.

<bold>1. Indigent Defendants — court-appointed</bold> <bold>attorney — taxation of fees — subject matter</bold> <bold>jurisdiction</bold> <block_quote> The Court of Appeals had no subject matter jurisdiction on the issue of taxation of attorney fees against defendant for his court-appointed attorney where the record contained no judgment requiring defendant to pay attorney fees.</block_quote> <bold>2. Sentencing</bold> — <bold><italic>Blakely</italic></bold> <bold>error</bold> <bold>— remand — harmless error issue</bold> <block_quote> This case is remanded to the Court of Appeals for consideration of the issue as to whether <italic>Blakely</italic> error in sentencing was harmless beyond a reasonable doubt.</block_quote>