An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1118

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Union County

No. 10CRS050358

KEVIN MICHAEL KING

Appeal by defendant from judgment entered 17 April 2013 by 

Judge W. David Lee in Union County Superior Court. Heard in the 

Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Anne M. Middleton, for the State. 

Appellate Defender Staples Hughes, by Assistant Appellate 

Defender David W. Andrews, for defendant-appellant. 

HUNTER, Robert C., Judge.

Kevin Michael King (“defendant”) appeals from judgment 

sentencing him to 236 to 293 months imprisonment on two counts 

of first-degree sex offense with a child and two counts of 

taking indecent liberties with a minor. On appeal, defendant 

argues that: (1) the trial court committed plain error by 

admitting video footage of a forensic interview with the alleged 
-2-

victim; (2) the trial court committed plain error by admitting 

testimony from the alleged victim’s therapist that constituted 

an improper opinion on the alleged victim’s credibility; (3) the 

trial court erred by denying his motion to dismiss the charges 

of taking indecent liberties with a minor; and (4) the trial 

court committed plain error by instructing the jury that it 

could convict defendant of taking indecent liberties with a 

minor based on theories not supported by the evidence. 

After careful review, we find no error in the sex offense 

judgments, but we vacate the convictions for taking indecent 

liberties with a minor. Accordingly, we remand for 

resentencing. 

Background

The evidence presented at trial tended to establish the 

following facts: “Jessica”

1, the alleged victim, was seven years 

old at the time of the incident underlying this case and ten

years old at the time of trial. Defendant is Jessica’s 

biological father. Defendant and Jessica’s mother, “Jane 

Reynolds” (“Jane”), lived briefly with Jane’s mother, “Anne

Reynolds” (“Ms. Reynolds”), until the relationship between 

 

1 “Jessica” is a pseudonym used to protect the identity and 

privacy of the juvenile. Pseudonyms will also be used to refer 

to members of Jessica’s family.
-3-

defendant and Jane ended when Jessica was two months old. Ms. 

Reynolds eventually became Jessica’s legal guardian. 

In January 2010, defendant’s mother (“Lindsay”) arranged 

with Ms. Reynolds for Jessica to visit with Lindsay and 

defendant at Lindsay’s home in Monroe, N.C. Originally, Jessica 

was to spend one night with defendant and his mother, but

Jessica later called and asked Ms. Reynolds if she could spend 

another night with them. Ms. Reynolds testified at trial that a 

few days after her visit with defendant, Jessica told Ms. 

Reynolds that she and defendant had a secret. 

Jessica was in grief counseling during this time because 

her sister had died from leukemia in 2008. Before a regularly 

scheduled appointment with Kristen McClure (“Ms. McClure”), 

Jessica’s therapist, Ms. Reynolds called and left a message with 

Ms. McClure to alert her that Jessica had a secret that she may 

want to talk about in the upcoming counseling session. 

Ms. McClure testified that her conversation with Jessica in 

the counseling session was focused on secrets. Jessica 

disclosed to Ms. McClure that defendant made her watch with him

what she described as “movies with naked people” on the 

computer. Ms. McClure did not ask for more details, because she 

thought it was apparent that there would be a Child Protective 
-4-

Services report, and she did not want to disrupt that 

investigation. At the end of the counseling session, Ms. 

McClure told Ms. Reynolds that Jessica said “she had definitely 

been sexually abused.” The day after the counseling session, 

Ms. Reynolds called Child Protective Services. 

On 20 January 2010, Jessica spoke with licensed social 

worker, Rebecca Horner (“Ms. Horner”), who conducted a forensic 

interview. During the interview, Jessica gave Ms. Horner 

detailed descriptions of sexual acts that defendant allegedly 

made her perform. Ms. Horner’s report stated that Jessica’s 

account of abuse was clear and detailed and that she validated 

the alleged abuse through the use of anatomical dolls. 

After the forensic interview, detectives arrested defendant 

and seized a computer from his mother’s house. A grand jury 

indicted defendant for two counts each of: (1) statutory rape,

(2) statutory sex offense, (3) incest, (4) taking indecent 

liberties with a minor, and (5) displaying harmful material to a 

minor. The matter was tried before a jury on 15 April 2013. 

At trial, Jessica testified that during the visit with 

defendant at his mother’s house, she watched a pornographic 

video on a computer with defendant while sitting on his lap. 

Jessica further testified that: (1) she rubbed defendant’s penis
-5-

and put her mouth on his penis; (2) he put his mouth on her 

vagina; and (3) defendant kissed her “butt.” Jessica said that 

defendant told her if she told anyone about what happened, he 

would not be able to see her for a long time. 

After Jessica testified, the trial court allowed the State 

to show video footage of the forensic interview conducted by Ms. 

Horner with no objection or request for limiting instruction. 

The video showed Jessica telling Ms. Horner that defendant 

showed her multiple pornographic videos, put his mouth on her 

“butt and private,” and made her perform oral sex on him. In 

the video Jessica also said that defendant penetrated her vagina 

with his penis at least two times and rubbed on her vagina with 

his testicles and one of his fingers. 

Defendant testified at trial and denied the allegations. 

The other individuals staying at Lindsay’s home that weekend 

also testified that they did not see anything unusual about 

defendant’s conduct toward Jessica, though they admittedly were 

not present at all times. 

At the conclusion of the State’s evidence, defense counsel 

made a motion to dismiss all charges. As part of the motion, 

counsel asserted that the taking indecent liberties with a minor 

indictments were void for vagueness. The trial court dismissed 
-6-

the charges of statutory rape, incest, and displaying harmful 

material to a minor. 

At the charge conference, the trial court stated that the 

verdict sheet for taking indecent liberties with a minor would 

be based on (1) analingus, and (2) “rubbing the alleged victim’s 

vagina.” At the conclusion of the defense’s evidence and during 

the charge conference, defense counsel reinstated his motion to 

dismiss. The trial judge denied the motion. 

The jury convicted defendant of two counts of statutory sex 

offense and two counts of taking indecent liberties with a 

minor. On the verdict sheet for the two charges of taking 

indecent liberties with a minor, the jury checked the line for 

“Guilty of Indecent Liberties with Child (analingus)” and 

“Guilty of Indecent Liberties with Child (rubbing alleged 

victim’s vagina).” The trial court consolidated the charges for 

judgment and sentenced defendant to 236 to 293 months 

imprisonment. Defendant gave notice of appeal in open court 

immediately following sentencing. 

Discussion

I. Forensic Video

Defendant first argues that the trial court erred by 

admitting the video of the forensic interview with Jessica 
-7-

because her statements were inflammatory, far exceeded her 

testimony at trial, and prejudiced the jury against defendant. 

We disagree. 

At trial, defendant did not object to the admission of the 

video. Thus, the appropriate standard of review is plain error. 

State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983). 

Plain error arises when the error is “so basic, so prejudicial, 

so lacking in its elements that justice cannot have been 

done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 

(1983) (citation and quotation marks omitted). 

For error to constitute plain error, a 

defendant must demonstrate that a 

fundamental error occurred at trial. To show 

that an error was fundamental, a defendant 

must establish prejudice - that, after 

examination of the entire record, the error 

had a probable impact on the jury’s finding 

that the defendant was guilty. Moreover, 

because plain error is to be applied 

cautiously and only in the exceptional case, 

the error will often be one that seriously 

affect[s] the fairness, integrity or public 

reputation of judicial proceedings. 

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) 

(internal quotation marks omitted). 

“‘Hearsay’ is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” N.C. Gen.
-8-

Stat. § 8C–1, Rule 801(c) (2013). Generally, hearsay is not 

admissible unless it is offered for a purpose other than proving 

the truth of the matter asserted. State v. Irick, 291 N.C. 480, 

498, 231 S.E.2d 833, 844 (1977). However, prior consistent 

statements of a witness are admissible for corroborative 

purposes. State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 

284 (1983). Corroborative testimony may contain “new or 

additional information when it tends to strengthen and add 

credibility to the testimony which it corroborates.” State v. 

Ligon, 332 N.C. 224, 237, 420 S.E.2d 136, 143 (1992) (citations 

omitted); see also State v. Beane, 146 N.C. App. 220, 232, 552 

S.E.2d 193, 200 (2001) (corroborative evidence need not mirror 

the testimony it seeks to corroborate, as long as the new 

information tends to strengthen or add credibility to the 

testimony). However, “prior statements as to facts not referred 

to in [the witness’s] trial testimony and not tending to add 

weight or credibility to it are not admissible as corroborative 

evidence.” State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278,

280 (1997) (alteration in original). 

A trial court has “wide latitude in deciding when a prior 

consistent statement can be admitted for corroborative, 

nonhearsay purposes.” State v. Call, 349 N.C. 382, 410, 508 
-9-

S.E.2d 496, 513 (1998). The North Carolina Supreme Court has 

held that a trial court’s limiting instruction that the jury may 

only consider out-of-court statements for corroborative and not 

substantive evidence can cure potentially erroneous admission of 

inconsistent statements. State v. Evans, 346 N.C. 221, 232-33, 

485 S.E.2d 271, 277-78 (1997); see also State v. Early, 194 N.C. 

App. 594, 600-01, 670 S.E.2d 594, 600 (2009) (holding that the 

trial court did not abuse its discretion when the trial court

gave limiting instructions on a prior inconsistent statement 

because the statement was only admitted for corroborative 

purposes).

Here, defendant argues that the trial court erred by 

admitting video of the forensic interview with Jessica because 

during the forensic interview Jessica described crimes she did 

not testify to at trial, such as statutory rape. Thus, he 

argues that because the prior out-of-court statements go “far 

beyond” Jessica’s trial testimony, the video interview did not 

add weight or credibility to the testimony, and the evidence of 

other crimes alluded to in the interview had a “dangerous 

tendency” to prejudice the jury. State v. McClain, 240 N.C. 

171, 177, 81 S.E.2d 364, 368 (1954). 

Although we agree that Jessica’s statements in the forensic 
-10-

interview did go beyond her testimony at trial, we find that any 

error in admitting the video was cured by the trial court’s 

limiting instruction. Here, the trial court gave limiting 

instructions on prior consistent statements and corroboration on 

its own initiative when it admitted the forensic video and gave 

a similar instruction in its jury charge. Specifically, the 

trial court included the following in its jury charge:

Evidence has also been received tending to 

show that at an earlier time a witness made 

a statement which may conflict or be 

consistent with the testimony of the witness 

at this trial. As I’ve previously instructed 

you, ladies and gentlemen, you must not 

consider such earlier statement as evidence 

of the truth of what was said at that 

earlier time because it was not made under 

oath at this trial. If you believe the 

earlier statement was made, and that it 

conflicts or is consistent with the 

testimony of the witness at this trial, you 

may consider this, and all other facts and 

circumstances bearing upon the witness’s 

truthfulness, in deciding whether you will 

believe or disbelieve the witness’s 

testimony. 

Furthermore, although there were parts of the video that did go 

beyond Jessica’s testimony, there was also a great deal of 

consistency sufficient for the jury to be able to assess

Jessica’s credibility. Thus, the trial court did not err by 

admitting the forensic video for corroborative purposes and 

instructing the jury as to the only permissible use of this 
-11-

evidence. See Early, 194 N.C. App. at 601, 670 S.E.2d at 600. 

Because there was no error, there could not have been plain 

error. See State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 

468 (1986) (holding that without error at all, there cannot be 

plain error). Defendant’s argument is overruled. 

II. Expert Testimony

Next, defendant argues that the trial court committed plain 

error by allowing improper opinion testimony by an expert 

witness, Ms. McClure, that Jessica had “definitely been sexually 

abused.” Defendant also argues that Ms. McClure’s testimony 

that she treated Jessica for issues that victims face after 

suffering sexual abuse was an improperly admitted opinion. We 

disagree. 

Because defendant did not object to the admission of this 

testimony at trial, we review this issue on appeal for plain 

error. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.

In a sexual offense prosecution involving a child victim, 

the trial court should not admit expert opinion that sexual 

abuse has in fact occurred because, absent physical evidence 

supporting a diagnosis of sexual abuse, such testimony is an 

impermissible opinion regarding the victim’s credibility. State 

v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Grover, 
-12-

142 N.C. App. 411, 543 S.E.2d 179, aff’d per curiam, 354 N.C. 

354, 553 S.E.2d 679 (2001). “However, an expert witness may 

testify, upon a proper foundation, as to the profiles of 

sexually abused children and whether a particular complainant 

has symptoms or characteristics consistent therewith.” State v. 

Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002).

Admission of expert testimony that the victim has been sexually 

abused without proper foundation constitutes plain error. State 

v. Delsanto, 172 N.C. App. 42, 47-48, 615 S.E.2d 870, 873-74 

(2005).

There are two statements at issue here. The first is Ms. 

Reynolds’s testimony that Ms. McClure told her that Jessica had 

“definitely been sexually abused.”

Defendant argues that this was an improper expert opinion 

about Jessica’s credibility because it was based on Ms. 

McClure’s discussion with Jessica and not on physical evidence 

of abuse. See Stancil, 355 N.C. at 267, 559 S.E.2d at 789. We 

disagree. After reviewing the transcript, we find that Ms. 

McClure never expressed an opinion about Jessica’s credibility

or whether she had been sexually abused. Rather, the statement 

defendant argues amounts to an impermissible opinion was in fact 

included in Ms. Reynolds’s testimony. In context, Ms. Reynolds
-13-

was merely relating the fact that Ms. McClure told her that 

Jessica had disclosed that she had been sexually abused. Ms. 

Reynolds’s testimony was as follows: 

Q. And what happened next? 

A. Towards the end, she said that she had 

definitely been sexually abused. 

Q. When you say she, do you –

A. I’m sorry; [Ms. McClure] brought me into 

the office and said that Jessica had told 

had told [sic.] her that she was -- that--

that her daddy had engaged in oral sex and 

that she felt like we needed to proceed, 

that I had -- that I was compelled-- I don’t 

know what the word would be, to call Child 

Protective Services, that if I didn’t call 

that she had to call. 

Ms. McClure never testified that she stated to Ms. Reynolds

or anyone else that Jessica had been sexually abused. Further, 

Ms. McClure neither formulated nor conveyed any opinion that 

Jessica had been sexually abused. When the State tried to 

elicit an actual opinion from Ms. McClure, the trial court 

sustained defendant’s objection. Thus, because Ms. McClure 

never gave an expert opinion on Jessica’s credibility or whether 

she had been sexually abused, defendant’s argument is overruled. 

The second statement at issue is Ms. McClure’s testimony 

that in subsequent therapy sessions with Jessica, Ms. McClure 

treated her for issues from which sexual abuse victims might 
-14-

suffer. 

Defendant relies on State v. Hall, 330 N.C. 808, 822-23,

412 S.E.2d 883, 891 (1992), where the North Carolina Supreme 

Court granted a new trial to the defendant because the trial 

court improperly admitted expert testimony that the alleged 

victim of sexual abuse was diagnosed as having post-traumatic 

stress disorder and a conversion reaction as substantive 

evidence of guilt. The case at hand is distinguishable because 

Ms. McClure’s testimony about working with Jessica on issues 

that sexual abuse victims may face was not an opinion that the 

victim had, in fact, been abused. Ms. McClure testified that 

she never probed into the details of what occurred with Jessica 

and defendant after Jessica’s initial disclosure that she 

watched pornographic videos with defendant. Rather, she 

proceeded with treatment designed for children who have alleged 

sexual abuse. Thus, contrary to the expert witnesses in Hall, 

Ms. McClure never formed an opinion as to whether abuse had in 

fact occurred, and thus, the trial court did not err by 

admitting her testimony. 

Since defendant failed to establish that the trial court 

erred by admitting these statements, we conclude that there 

cannot be plain error. See Torain, 316 N.C. at 116, 340 S.E.2d 
-15-

at 468.

III. Motion to Dismiss

Defendant also argues that the trial court erred when it 

denied defendant’s motion to dismiss the charges for taking 

indecent liberties with a minor. Defendant claims that the 

State did not produce substantial evidence that defendant rubbed 

Jessica’s vagina or engaged in analingus – the two factual 

theories upon which the jury convicted defendant for these 

charges. We agree.

The first matter we must address is whether defendant 

waived this issue on appeal. The State argues that defendant 

waived review of this issue because he presented a different 

argument at trial supporting the motion to dismiss than the 

argument he now presents on appeal. It is well-settled in North 

Carolina that where a theory argued on appeal was not raised 

before the trial court, “the law does not permit parties to swap 

horses between courts in order to get a better mount.” State v. 

Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005) 

(citations omitted). At trial, defendant’s motion to dismiss 

was based upon lack of evidence for the rape and incest charges. 

As to the indecent liberties charges, defense counsel objected 

only on the basis that the indictments were vague. At the close 
-16-

of all evidence, defense counsel reinstated his motion to 

dismiss all charges but did not specifically assert that the 

motion was tied to lack of evidence for the indecent liberties 

charges. 

We hold that defendant did not preserve this issue on 

appeal because he did not state the specific grounds for the 

motion to dismiss which he now argues on appeal. See N.C. R. 

App. P. 10(a)(1) (2013); Augustine, 359 N.C. at 721, 616 S.E.2d 

at 525. However, defendant requests that we invoke Rule 2 of 

the North Carolina Rules of Appellate Procedure to reach the 

merits of this issue. See N.C. R. App. P. 2 (2013). This Court 

has previously utilized Rule 2 to reach the merits of issues 

concerning sufficiency of the evidence and motions to dismiss 

where theories used to support the motions at the trial level 

differed from those raised on appeal. See State v. Martinez, 

___ N.C. App. ___, ___, 749 S.E.2d 512, 514 (2013) (invoking 

Rule 2 to review the merits of denial of a motion to dismiss on 

appeal despite defendant relying on a different argument for 

dismissal at trial). Thus, in accordance with caselaw and to 

prevent manifest injustice, we invoke Rule 2 to reach the merits 

of defendant’s argument here. 

The trial court’s ruling on a motion to dismiss is reviewed 
-17-

de novo on appeal. State v. Bagley, 183 N.C. App. 514, 523, 644 

S.E.2d 615, 621 (2007). Under the de novo standard of review, 

this Court considers the matter anew and freely substitutes its 

own judgment for the lower court’s. Sutton v. N.C. Dep’t of 

Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999). When 

a trial court rules on a motion to dismiss, it must determine 

whether the State presented substantial evidence of each 

essential element of that offense. State v. Davis, 74 N.C. App. 

208, 212, 328 S.E.2d 11, 14 (1985). Substantial evidence is 

that which “a reasonable mind might accept as adequate to 

support a conclusion.” State v. Barden, 356 N.C. 316, 351, 572 

S.E.2d 108, 131 (2002). The trial court must consider the 

evidence in the light most favorable to the State and give the 

State any reasonable inference that can be drawn therefrom. 

State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983). 

A person is guilty of taking indecent liberties with a 

minor, if 

[B]eing 16 years of age or more and at least 

5 years older than the child in question, he 

either: (1) willfully takes or attempts to 

take any immoral, improper, or indecent 

liberties with any child of either sex under 

the age of 16 years for the purposes of 

arousing or gratifying sexual desire; or (2) 

willfully commits or attempts to commit any 

lewd or lascivious act upon or with the body 

or any part or member of the body of any 
-18-

child of either sex under the age of 16 

years.

N.C. Gen. Stat. § 14-202.1 (2013). 

This case is comparable to State v. Mueller, 184 N.C. App. 

553, 647 S.E.2d 440 (2007). In Mueller, the defendant was 

indicted for thirty-three felonies and three misdemeanors based 

on alleged sexual misconduct with his biological daughter and 

his stepdaughter. Id. at 556, 647 S.E.2d at 444. Five of the 

indictments were for the crime of taking indecent liberties with 

a minor; to support one of these charges, the jury was 

instructed, and the verdict sheet listed, the specific act of 

the defendant asking the alleged victim to perform oral sex on 

him. Id. at 557, n.1, 647 S.E.2d at 445. The jury found him 

guilty for one count of taking indecent liberties with a minor 

based on this factual theory. Id. On appeal, defendant argued 

that the trial court erred by denying his motion to dismiss this 

charge because the State did not produce substantial evidence 

that the defendant in fact asked the alleged victim to perform 

oral sex. Id. at 560, 647 S.E.2d at 446. The Court agreed;

even though the victim testified “at length” as to acts 

supporting other charges, such as defendant placing his penis 

between the victim’s thighs and ejaculating on her, the State 

failed to produce substantial evidence that he asked her to 
-19-

perform oral sex. Id. at 561, 563, 647 S.E.2d at 447-48. 

Because the trial court specified this act in its instruction 

and the jury identified this fact as supporting the conviction 

in its verdict sheet, the State was required to produce 

substantial evidence of this act to survive a motion to dismiss. 

Id. Thus, because it failed to do so, this Court reversed the 

conviction and dismissed the charge. 

Here, like in Mueller, the trial court specified facts 

supporting the charges of taking indecent liberties with a minor 

in its jury instructions, and those facts were included on the 

verdict sheets. Thus, pursuant to Mueller, in order to overcome 

defendant’s motion to dismiss, the State was required to produce 

substantial evidence of the two factual theories upon which the 

charges of taking indecent liberties with a minor were premised

– that defendant rubbed Jessica’s vagina and performed 

analingus.

First, the State argues that it produced substantial 

evidence that defendant performed analingus on Jessica. We 

disagree. Analingus is defined as “the stimulation of the anal 

opening by the tongue or lips.” State v. White, 101 N.C. App. 

593, 606, 401 S.E.2d 106, 113 (1991). Jessica testified that 

defendant “put[] his mouth on [her] butt” and “kissed” her 
-20-

“butt.” The State argues that, viewing the evidence in the 

light most favorable to the State, this testimony constituted 

substantial evidence that defendant performed analingus and was 

corroborated by the video interview wherein Jessica told Ms. 

Horner that defendant “started kissing [her privates] even 

inside” and “then he did my butt.” However, the forensic 

interview was admitted only to corroborate Jessica’s in-court 

testimony and was not to be considered as substantive evidence. 

Without more, we cannot conclude that Jessica’s testimony that 

defendant “kissed” her “butt” amounted to substantial evidence 

that “a reasonable mind might accept as adequate to support 

[the] conclusion” that defendant stimulated Jessica’s anal 

opening with his tongue or lips. Thus, we vacate defendant’s 

conviction for taking indecent liberties with a minor premised 

on analingus. See State v. Hunt, __ N.C. App. __, __, 728 

S.E.2d 409, 415 (2012) (vacating a conviction for crime against 

nature where evidence was insufficient to withstand the 

defendant’s motion to dismiss). 

Next, the State argues that it produced substantial 

evidence that defendant rubbed Jessica’s vagina. Again, we 

disagree. Jessica testified that defendant kissed and rubbed 

her butt, put his mouth on her private part and butt, made 
-21-

Jessica rub his penis, and put his penis in her mouth. The only 

evidence supporting the theory that defendant rubbed Jessica’s 

vagina is in the forensic video, where Jessica said that 

defendant rubbed her vagina with his finger and rubbed his 

testicles on her “private.” Because the video was admitted for 

corroborative and not substantive purposes, and because no 

substantive evidence was admitted tending to show that defendant 

rubbed Jessica’s vagina, we hold that the State failed to 

produce substantial evidence to support this theory. Thus, we 

vacate defendant’s conviction for taking indecent liberties with 

a minor premised on rubbing Jessica’s vagina. See Hunt, __ N.C. 

App. at __, 728 S.E.2d at 415.

Although it is clear that the State produced substantial 

evidence of acts that would support a conviction of taking 

indecent liberties with a minor generally, we are constrained by 

Mueller to analyze defendant’s motion to dismiss in light of the 

specific instructions provided by the trial court and the facts 

specified in the verdict sheets. Because the State failed to 

produce substantial evidence of those facts, we must vacate 

defendant’s convictions for these charges. Further, because 

these convictions were consolidated with two counts of statutory 

sex offense for sentencing, we remand this matter to the trial 
-22-

court for resentencing. See State v. Wortham, 318 N.C. 669, 

674, 351 S.E.2d 294, 297 (1987) (remanding for resentencing 

where one or more but not all convictions consolidated for 

judgment had been vacated on appeal). 

IV. Jury Instructions

Defendant’s final argument is that the trial court 

committed plain error when it instructed the jurors that they 

could convict defendant of taking indecent liberties with a 

minor based on the theories that defendant rubbed Jessica’s 

vagina and performed analingus because they were not supported 

by the evidence. Because we vacate the two convictions for 

taking indecent liberties with a minor, we need not address this 

issue on appeal. 

Conclusion

We hold that the trial court did not err by admitting video 

footage of the forensic interview into evidence because it was 

admitted only for corroborative purposes and the trial court 

gave a proper limiting instruction. Furthermore, the trial 

court did not err by admitting Ms. McClure’s or Ms. Reynolds’s 

testimony because neither statements rose to the level of 

improper expert opinion. Finally, we vacate the convictions for 

two counts of taking indecent liberties with a minor because the 
-23-

State failed to produce substantial evidence of the facts

supporting those charges, and we remand for resentencing. 

NO ERROR IN PART; VACATED AND REMANDED IN PART.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).