IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-68

No. 376A19

Filed 11 June 2021

STATE OF NORTH CAROLINA

v.

ERVAN L. BETTS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 267 N.C. App. 272 (2019), finding no plain error after appeal 

from a judgment entered on 23 March 2018 by Judge R. Stuart Albright in Superior 

Court, Forsyth County. On 28 February 2020, the Supreme Court allowed defendant’s 

petition for discretionary review to review an additional issue not addressed by the 

Court of Appeals. Heard in the Supreme Court on 22 March 2021.

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

Attorney General, and Heyward Earnhardt, Solicitor General Fellow, for the 

State-appellee.

Craig M. Cooley for defendant-appellant.

BARRINGER, Justice.

¶ 1 Defendant was convicted of three counts of indecent liberties with a child. 

Defendant appealed to the Court of Appeals, which in a divided opinion held that 

defendant had a trial free from prejudicial error. After careful review, we modify and 

affirm the decision of the Court of Appeals.
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I. Background

¶ 2 When B.C. 1 was born in 2013, illegal drugs were found in her system, which 

prompted the involvement of the Forsyth County Department of Social Services 

(DSS). On 25 October 2013, DSS conducted an interview of M.C., the seven-year-old 

sister of B.C., and M.C. informed the social worker, Melodie Archie, that defendant 

touched her inappropriately. During this time, defendant was in a relationship with 

M.C. and B.C.’s mother. When the social worker asked additional questions, M.C. 

denied being touched inappropriately but then described domestic violence incidents 

between defendant and her mother.

¶ 3 Archie testified on behalf of the State that she conducted a follow-up interview 

at M.C.’s elementary school where M.C. described incidents of defendant 

inappropriately touching her. Archie referred M.C. to an advocacy center and 

contacted the Winston-Salem Police Department. M.C. went to the child advocacy 

center in November 2013, where she underwent a forensic interview conducted by 

Fulton McSwain.

¶ 4 McSwain wrote a report that was admitted into evidence showing that during 

the forensic interview at the advocacy center, M.C. described incidents of domestic 

violence between defendant and her mother, two specific incidents of defendant 

 

1 Initials are used to protect the identities of B.C. and M.C., minor children, who are 

involved in the case.
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inappropriately touching her, and one incident where defendant slapped her on the 

leg so hard that he left a hand imprint and then said to her, “F**k you b**ch.” M.C. 

also relayed specific incidents of domestic violence she witnessed between her mother 

and defendant, which included defendant pushing her mother into a counter and a 

closet, defendant punching her mother and causing her to have a black eye, and 

defendant bringing a gun to her mother’s residence and attempting to break into her 

mother’s apartment.

¶ 5 While M.C. only described in detail two specific incidents of inappropriate 

touching by defendant, M.C. explained that defendant kept on touching her private 

parts over and over again, but she could not remember how many times defendant 

had inappropriately touched her. The two specific incidents of inappropriate touching 

that M.C. described were defendant rubbing M.C.’s vagina beneath her underwear 

and defendant touching M.C.’s breasts. At the conclusion of the interview, the 

interviewer documented that M.C. “reported to being truthful and did not appear to 

display any overt signs of deception.”

¶ 6 In December 2013, M.C. began seeing Mary Katherine Mazzola,

2 a licensed 

clinical social worker with DSS, who worked as a therapist in the clinical services 

unit. Mazzola testified at trial that M.C. was referred to her based on M.C.’s exposure 

 

2 While there are discrepancies in how Mazzola’s name is spelled, we will use the 

spelling of her name as documented in the Court of Appeals opinion.
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to neglect, sexual abuse, and violence and, after a trauma assessment, Mazzola

diagnosed M.C. with post-traumatic stress disorder (PTSD).

¶ 7 On 25 April 2016, defendant was indicted on three counts of indecent liberties 

with a child. At trial, the State called to testify, among others, M.C., Archie, McSwain,

and Mazzola. Mazzola was qualified as an expert witness in sexual abuse and 

pediatric counseling. The defendant was subsequently convicted of all three counts 

and sentenced to three consecutive terms of 31 to 47 months imprisonment.

¶ 8 Defendant appealed. The Court of Appeals addressed defendant’s arguments 

that the trial court committed plain error by “(1) not issuing a limiting instruction 

regarding ‘profile’ testimony; (2) allowing testimony and reports that amounted to 

improper vouching for the credibility of the victim; (3) incorrectly instructing the jury 

on the proper use of testimony related to the victim’s PTSD; and (4) admitting 

evidence of prior incidents of domestic violence by defendant.” State v. Betts, 267 N.C. 

App. 272, 274 (2019). In a divided opinion, the Court of Appeals held that defendant 

received a fair trial free from prejudicial error. Id. at 286.

¶ 9 The dissent, however, argued that the consistent use of the term “disclose” by 

the State’s witnesses was impermissible vouching as to M.C.’s credibility, that the 

introduction of the domestic violence evidence was error, and the cumulative effect of 

these errors required reversal of defendant’s convictions. Id. at 297, 309−310 (Tyson, 

J., dissenting). Defendant appealed as of right to this Court based on the dissenting 
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opinion from the Court of Appeals. The Court of Appeals opinion did not directly 

address defendant’s issue on appeal of whether separate elements of Mazzola’s 

testimony constituted impermissible vouching of M.C.’s credibility, and this Court 

allowed defendant’s petition for discretionary review as to that issue.

II. Standard of Review

¶ 10 If in a criminal case, an issue was not preserved by objection at trial and was

not deemed preserved by rule or law, the unpreserved error is reviewed only for plain 

error. See N.C. R. App. P. 10(a)(4) (2021).

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 

affects the fairness, integrity or public reputation of 

judicial proceedings[.]

State v. Lawrence, 365 N.C. 506, 518 (2012) (cleaned up).

III. Analysis

A. Impermissible Vouching

¶ 11 Aside from its consideration of the term “disclose,” the Court of Appeals did not

directly address defendant’s specific challenges to part of Mazzola’s testimony as

impermissible vouching as to M.C.’s credibility. We address the issue here and 

accordingly modify the Court of Appeals’ majority opinion.
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¶ 12 Defendant did not object to this evidence when it was offered at trial and, thus, 

we review for plain error. Defendant argues that Mazzola’s answers in the affirmative 

to a series of questions from the State constituted impermissible vouching as to M.C.’s 

credibility and the trial court’s failure to strike her testimony was plain error. 

Specifically, the State asked and Mazzola answered in the affirmative the following 

questions: (1) “when you make a diagnosis of post-traumatic stress disorder, are there 

several types of traumatic events that could lead to that diagnosis?,” (2) “would 

violence in the home be one of those?,” (3) “what about domestic violence or witnessing 

domestic violence?,” (4) “what about sexual abuse?,” (5) “[w]ould it be fair to say that 

[M.C.] had experienced a number of traumas?,” and (6) “And that was the basis of 

your therapy?”

¶ 13 Expert opinion is not admissible to vouch for a victim’s credibility; nonetheless, 

“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, 266−267 (2002)

(per curiam). An expert’s opinion that sexual abuse did in fact occur is admissible 

when there is physical evidence supporting a diagnosis of sexual abuse. Id. at 266.

¶ 14 Given the context of the testimony and the questions asked, Mazzola’s 

testimony did not vouch for M.C.’s credibility and thus was admissible testimony. As 

argued by the State, the challenged testimony addressed what types of trauma could 
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lead to a PTSD diagnosis—and never indicated which traumas M.C. experienced, if 

any.

¶ 15 This Court has held that “testimony amount[ing] to an expert’s opinion as to 

the credibility of the victim . . . is inadmissible under the mandate of Rule 608(a) [of 

the North Carolina Rules of Evidence.]” State v. Aguallo, 318 N.C. 590, 599 (1986). 

An identification of trauma which may form the basis of a PTSD diagnosis clearly, as 

recited by Mazzola, does not constitute a vouching for the victim’s credibility, but 

rather a statement of the considerations that led to the expert’s diagnosis. 

Accordingly, Mazzola’s testimony does not address credibility. Mazzola’s affirmative 

answer to the question concerning whether M.C. had experienced a number of 

traumas was in response to the State’s line of questioning regarding Mazzola’s 

diagnosis of PTSD.

¶ 16 Mazzola did not “usurp the jury’s function in determining credibility” as 

defendant claims. Mazzola never testified that M.C. was in fact sexually abused. Cf. 

State v. Towe, 366 N.C. 56, 59−60 (2012) (concluding that expert testimony was 

improper where the expert testified that the complainant was in fact part of a 

category of sexual abuse victims that displayed no physical abnormalities). Mazzola’s 

testimony stayed within the bounds of permissible expert witness testimony in child 

sex abuse cases.
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¶ 17 Even if Mazzola’s testimony was admitted in error, the testimony was not 

prejudicial to defendant. The trial court gave instructions to the jury on two occasions 

stating that Mazzola’s testimony could only be used for two purposes: to corroborate 

M.C.’s testimony or to explain M.C.’s delay in reporting defendant’s crimes. While 

defendant argues that M.C.’s testimony of the incidents contains several 

inconsistencies, defendant had the opportunity to present evidence and crossexamine M.C. to highlight any alleged inconsistencies. In fact, defendant’s trial 

counsel did call attention to M.C.’s inconsistencies to the jury during closing 

arguments. Based on the evidence presented at trial, the burden of showing prejudice 

for an unpreserved error—that “the error had a probable impact on the jury’s finding 

that the defendant was guilty”—is upon the defendant. See Lawrence, 365 N.C. at 

518. Defendant has not met his burden of showing plain error.

B. Use of the Word “Disclose” as Impermissible Vouching

¶ 18 Defendant next argues that the use of the word “disclose” throughout the 

State’s expert and lay witnesses’ testimony constituted impermissible vouching as to 

M.C.’s credibility. Defendant did not object to this evidence when it was offered at 

trial and, thus, we review for plain error.

¶ 19 An expert’s opinion that a complainant has endured sexual abuse, absent 

physical evidence, is impermissible vouching as to the complainant’s credibility. 

Stancil, 355 N.C. at 266−267. This Court “has found reversible error when experts 
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have testified that the victim was believable, had no record of lying, and had never 

been untruthful.” State v. Aguallo, 322 N.C. 818, 822 (1988).

¶ 20 Defendant relies on the unpublished Court of Appeals opinion State v. 

Jamison, COA18-292, 2018 WL 6318321 (N.C. Ct. App. Dec. 4, 2018), 3 which is based 

on State v. Frady, 228 N.C. App. 682, review denied, 367 N.C. 273 (2013), to argue 

that the State’s witnesses’ use of the word “disclose” constituted impermissible 

vouching. Defendant not only relies on an unpublished Court of Appeals decision to 

support his argument, but the holding in Frady does not support defendant’s 

position.4 An expert witness’s use of the word “disclose,” standing alone, does not 

constitute impermissible vouching as to the credibility of a victim of child sex abuse,

regardless of how frequently used, and indicates nothing more than that a particular 

statement was made. Thus, we conclude that the trial court did not err by allowing 

the State’s witnesses to use the term “disclose” and there is no plain error.

¶ 21 Even if it were error for the trial court to admit testimony of the State’s 

witnesses who used the term “disclose,” defendant has not shown plain error. M.C. 

testified about three incidents of defendant inappropriately touching her, where she 

 

3 We note that it is highly disfavored to cite to unpublished opinions. See N.C. R. App. 

P. 30(e)(3) (2021).

4 In State v. Frady, the Court of Appeals assessed the testimony of the expert and 

evaluated whether the meaning of the testimony would be construed by the jury as an opinion 

by the expert of the victim’s credibility. Frady, 228 N.C. App. at 685−86. Frady did not hold 

that the use of the word “disclose,” by itself, conveys an opinion as to the credibility of a 

victim.
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gave several details and described the surrounding circumstances. While M.C.’s 

account of the events may have had inconsistencies, the jury had the opportunity to 

watch M.C. testify and make an independent determination as to her credibility. 

Furthermore, substantial evidence was presented to the jury to find that defendant 

had inappropriately touched M.C. The State submitted for the jury’s consideration 

McSwain’s report of the forensic interview, a video of the forensic interview, as well 

as testimony from Archie and Mazzola. Defendant has not shown that the use of the 

word “disclose” had a probable impact on the jury’s finding that he was guilty. See 

Lawrence, 365 N.C. at 518. Therefore, there is no prejudice.

C. Domestic Violence Evidence

¶ 22 Defendant next argues that the trial court plainly erred by allowing evidence 

of his past domestic violence incidents with M.C.’s mother in violation of North 

Carolina Rules of Evidence 401 and 403. We disagree.

¶ 23 Rule 401 states that “ ‘[r]elevant evidence’ means evidence having any 

tendency to make the existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be without the evidence.” 

N.C.G.S. § 8C-1, Rule 401 (2019). Rule 403 states that “[a]lthough relevant, evidence 

may be excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations 
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of undue delay, waste of time, or needless presentation of cumulative evidence.” 

N.C.G.S. § 8C-1, Rule 403.

¶ 24 Here, defendant argues that the evidence of domestic violence, which consisted 

of the three incidents M.C. described to McSwain during her forensic interview, “had 

little−if anything−to do with the charged offenses.” Yet, the domestic violence 

evidence provides a justification for why M.C. was fearful of and delayed in reporting 

defendant’s sexual abuse. In State v. Espinoza-Valenzuela, 203 N.C. App. 485 (2010), 

the Court of Appeals held that evidence of domestic violence between defendant and 

complainants’ mother, although tending to show defendant’s character, was relevant 

pursuant to N.C.G.S. § 8C-1, Rule 401 to show why complainants delayed reporting 

the sexual abuse defendant perpetrated against them. Espinoza-Valenzuela, 203 N.C. 

App. at 491. The same rationale can be applied in the instant case. The domestic 

violence evidence goes directly to crucial issues in the case including M.C.’s 

credibility, the veracity of her allegations, and why she did not reveal defendant’s 

actions until DSS became involved with B.C., her younger sister.

¶ 25 The evidence of domestic violence was also probative of M.C.’s PTSD diagnosis. 

Mazzola testified to her opinion that M.C. has had “complex trauma” that ultimately 

led Mazzola to diagnosing M.C. with PTSD. Mazzola testified that domestic violence 

can contribute to a person developing PTSD. The domestic violence evidence, thus,

aided the jury’s understanding of M.C.’s PTSD diagnosis. Since the domestic violence 
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evidence was relevant to explain why M.C. delayed reporting defendant’s sexual 

assaults and the domestic violence contributed to M.C.’s PTSD diagnosis, it follows 

that the evidence was relevant under Rule 401 and 403 as it pertained to M.C.’s PTSD 

and its effects on M.C. See State v. Hall, 330 N.C. 808, 822 (1992) (“[T]estimony on 

post-traumatic stress syndrome may assist in corroborating the victim’s story, or it 

may help to explain delays in reporting the crime or to refute the defense of consent.”).

¶ 26 The domestic violence evidence was relevant pursuant to Rule 401 to offer an 

explanation as to why M.C. delayed reporting defendant’s crimes and aided the jury’s 

understanding of M.C.’s PTSD diagnosis. The domestic violence evidence was not 

more prejudicial than probative so as to be excluded under Rule 403 because it went

directly to an issue in the case—M.C.’s credibility. Therefore, we conclude that the 

trial court did not err by admitting evidence of defendant’s past incidents of domestic 

violence, and thus, there cannot be plain error.

D. Cumulative Error

¶ 27 Finally, defendant argues that the cumulative effect of the trial court’s errors 

prejudiced him. Since we hold that none of the issues present error, we decline to

consider defendant’s cumulative error argument. See State v. Thompson, 359 N.C. 77, 

106 (2004) (stating that because the Court concluded there was no error on two of 

defendant’s assignments of error, defendant’s cumulative error argument did not 

need to be considered).
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IV. Conclusion

¶ 28 Defendant received a fair trial, free from prejudicial error. Neither Mazzola’s 

testimony, which was not fully addressed by the Court of Appeals, nor the use of the 

word “disclose” throughout the State’s witnesses’ testimony constituted 

impermissible vouching as to M.C.’s credibility. Furthermore, the domestic violence 

evidence was relevant to explain why M.C. delayed reporting defendant’s crimes and 

aided the jury’s understanding of M.C.’s PTSD diagnosis. Since we conclude that the 

trial court did not commit error, there was no cumulative error. Accordingly, we 

modify and affirm the Court of Appeals decision.

MODIFIED AND AFFIRMED.

Justice BERGER did not participate in the consideration or decision of this 

case.