An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-988

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Catawba County

No. 11 CRS 5731

WILLARD MARSHALL TAYLOR, JR.

 

Appeal by defendant from judgment entered 7 March 2013 by 

Judge Timothy S. Kincaid in Catawba County Superior Court. 

Heard in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Jill A. Bryan, for the State.

Dianne Jones McVay, for defendant-appellant.

HUNTER, Robert C., Judge.

Defendant Willard Marshall Taylor, Jr. appeals the judgment 

entered after a jury found him guilty of one count of taking 

indecent liberties with a child. On appeal, defendant argues 

that: (1) the trial court committed plain error when it allowed 

a physician’s assistant and an investigator for Child Protective 

Services to testify about statements made to them by the 

victim’s mother, (2) the trial court committed plain error by 
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allowing a State’s witness to vouch for the victim’s 

credibility, and (3) the trial court erred when it denied

defendant’s motion to dismiss for insufficiency of the evidence. 

After careful review, we find no error.

 Background

On 1 August 2011, defendant was indicted in Catawba County 

on one count of taking indecent liberties with his 

granddaughter, M.T. The offense was alleged to have occurred 

between 1 November and 31 December 2010 when M.T. was five years

old. 

The State’s evidence at trial tended to establish the 

following: M.T.’s parents, Brad—defendant’s son—and Cara,

1 were 

separated and living apart in October 2009. At the time of the 

alleged abuse, Brad resided with defendant. Although M.T. 

continued to reside with Cara, an informal custody agreement 

provided that Brad would keep M.T. every other weekend. 

Sometime around the end of 2010 and the beginning of 2011, 

after a weekend visit with Brad, Cara first became concerned 

about M.T.’s behavior after M.T. refused to allow her in the 

bathroom to help her shower or dry off. Cara also claimed that 

M.T. began “humping” a stuffed animal. M.T. allegedly told Cara 

that her vaginal area hurt and burned. After one weekend visit, 

 

1 For purposes of this opinion, to protect the identity of the 

minor child, we have used initials and pseudonyms for the victim 

and her parents.
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Cara examined M.T. and saw vaginal discharge; M.T.’s vagina also 

appeared “really red.” When Cara asked M.T. what happened, M.T.

responded that defendant put his finger in her “rose.” M.T. 

referred to her genital area as her “rose.”

On 4 February 2011, Cara took M.T. to Gary Poston

(“Poston”), a physician’s assistant at a local medical clinic. 

Poston testified that Cara told him that M.T. accused her 

grandfather of putting his finger in her vagina. After learning 

of the possibility of sexual abuse, Poston declined to examine 

M.T.; instead, he referred Cara to the Department of Social 

Services (“DSS”) for follow-up as he had been trained to do in 

alleged sexual abuse situations. 

After leaving the clinic, Cara took M.T. directly to the 

Newton Police Department where she met with Child Protective 

Services’ investigators Thomas Neff (“Neff”) and Brian Cloninger

(“Cloninger”). Cara told them what M.T. claimed defendant had 

done. Neff and Cloninger arranged an interview and medical exam 

for M.T. at the Children’s Advocacy Protection Center (“CAPC”). 

On 9 February 2011 at CAPC, Beth Osbahr (“Osbahr”), a 

pediatric nurse practitioner, performed the medical exam and 

examined M.T. for signs of sexual abuse. Osbahr testified that 

she did not observe any physical evidence of sexual abuse during 

M.T.’s examination, but the time-frame between the alleged abuse 

and examination would make it unlikely to find physical 
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evidence. After the medical exam, Neff, a trained forensic 

interviewer, performed a recorded interview with M.T.; no one 

else was in the room with them. During the interview, M.T. 

claimed that defendant had touched her vagina while she was at 

defendant’s home. A recording of that interview was played to 

the jury at trial.

Following the CAPC interview and examination, Brad sought 

an additional interview of M.T. in his presence, which was later 

conducted by Adrienne Opdyke (“Opdyke”). This later interview 

was conducted at the District Attorney’s office with M.T., Brad, 

Opdyke, and the district attorney present. At trial, Opdyke 

testified as an expert witness in the field of forensic 

interviewing. She testified that M.T. told her that defendant 

touched her “rose” in the bathroom of his home. Opdyke also 

testified as to the proper method of conducting a forensic 

interview with a child. 

At trial, the following witnesses testified on defendant’s 

behalf: his two sons, Brad and Justin; defendant’s wife, Rhonda;

and defendant himself. All four defense witnesses testified 

that after Neff’s interview with M.T., each questioned M.T. 

about the alleged sexual abuse even though Neff had instructed 

them not to. All four defense witnesses claimed that M.T. 

denied that defendant touched her; instead, M.T. alleged that 

Cara told her to say that she had been touched. Brad recorded 
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one of these conversations he had with M.T. where she claimed 

that “Peepaw didn’t touch” her. A transcript of the recording 

was admitted into evidence at trial. On rebuttal, Opdyke 

testified that she had concerns about Brad’s recording of his 

interview with M.T. In her opinion, Opdyke claimed that several 

of his questions were ambiguous and confusing. 

On 7 March 2013, a jury found defendant guilty on one count 

of taking indecent liberties with a child. Defendant was 

sentenced to a minimum of 13 months and a maximum of 16 months 

imprisonment. The trial court suspended the sentence, and 

defendant was placed on supervised probation for 36 months. 

Defendant gave notice of appeal in open court. 

Discussion

A. Hearsay

Defendant first argues the trial court committed plain 

error by admitting testimony that constituted inadmissible 

hearsay. Specifically, defendant contends that Poston’s and 

Neff’s testimony concerning statements Cara made to them about 

what M.T. had told her constituted double hearsay. We disagree.

Defendant did not object at trial to the admission of 

Poston’s or Neff’s testimony; thus, the trial court’s admission 

of their statements is reviewed for plain error, State v. 

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

error to constitute plain error, a defendant must demonstrate 
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that a fundamental error occurred at trial. To show that an 

error was fundamental, a defendant must establish . . . the 

error had a probable impact on the jury’s finding that the 

defendant was guilty.” Id. (citations and quotations 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.” State v.

Stanley, 213 N.C. App. 545, 552, 713 S.E.2d 196, 201 (2011). 

When evidence of such statements by one 

other than the witness testifying is offered 

for a proper purpose other than to prove the 

truth of the matter asserted, it is not 

hearsay and is admissible. Specifically, 

statements of one person to another are 

admissible to explain the subsequent conduct 

of the person to whom the statement was 

made. 

State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) 

(internal citations and quotation marks omitted). 

Defendant challenges the testimony of Poston and Neff 

concerning statements Cara made to them about things M.T. had 

told her. Specifically, defendant claims that Poston’s 

testimony that Cara told him that M.T. told her “pawpaw had 

touched her in the vaginal area and rubbed her very hard” and 

Neff’s testimony that Cara told him that M.T. claimed that 

defendant “had touched [M.T.] in a private part” constituted 

inadmissible double hearsay. However, neither Cara’s out-ofcourt statements to them nor M.T.’s out-of-court statements to 
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Cara constituted hearsay because neither were offered at trial 

as substantive truth that defendant had touched M.T. Instead, 

these statements were offered for a purpose other than asserting 

the truth of the matter asserted; they were used to explain 

subsequent actions by Poston and Neff. Specifically, these

statements explained why Poston referred Cara to DSS and why

Neff initiated an investigation into the alleged abuse. 

Therefore, since neither Poston’s nor Neff’s testimony was 

offered to prove the truth of the matter asserted, the out-ofcourt statements by M.T. and her mother were not hearsay, and 

the trial court did not err, much less commit plain error, in 

admitting Poston’s and Neff’s testimony.

B. Opdyke’s Testimony Regarding M.T.’s Credibility

Defendant next argues the trial court committed plain error 

when it allowed the State’s expert witness to vouch for M.T.’s 

credibility. We disagree.

“If scientific, technical or other specialized knowledge 

will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education, may 

testify thereto in the form of an opinion.” State v. Green, 209 

N.C. App. 669, 675-76, 707 S.E.2d 715, 720 (2011); N.C. R. Evid. 

702(a). However, “[i]t is fundamental to a fair trial that the 

credibility of the witnesses be determined by the jury . . . 
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[and thus] an expert’s opinion to the effect that a witness is 

credible, believable, or truthful is inadmissible.” State v. 

Boyd, 200 N.C. App. 97, 103, 682 S.E.2d 463, 468 (2009) (quoting 

State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496 

(1995)).

Defendant argues his case is similar to State v. Giddens, 

199 N.C. App. 115, 121-22, 681 S.E.2d 504, 508 (2009), where 

this Court held that the trial court committed prejudicial error 

when the State’s witness, a DSS investigator, testified that her 

investigation “substantiated” that the defendant had committed 

the crime. See also State v. Couser, 163 N.C. App. 727, 730-31, 

594 S.E.2d 420, 422-23 (2004) (holding that the trial court 

committed prejudicial error when the expert witness testified 

after speaking with the child that the child was “probably 

sexually abused”); State v. Ryan, __ N.C. App. __, __, 734 

S.E.2d 598, 604 (2012) (concluding the trial court committed 

prejudicial error by allowing the expert witness to testify that 

“she was not concerned that the child was ‘giving a fictitious 

story’”). Defendant contends Opdyke substantiated M.T.’s 

testimony through her description of her forensic interview with 

M.T. and her analysis of Brad’s recorded interview with M.T. 

However, unlike Giddens where the DSS investigator actually 

said she “substantiated” that defendant was guilty, 199 N.C. 

App. at 121-22, 681 S.E.2d at 508, or other cases where an 
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expert testifies as to the credibility of the victim, Opdyke 

never provided her expert opinion that M.T. had been truthful 

during their interview. Opdyke testified as follows: 

Q: What is the goal of the forensic 

interview?

A: To allow the child to talk about an 

event, if it happened, in their own words 

without leading. And it has to be 

developmentally correct, so I’m going to the 

use terms and words that a six-year-old may 

use.

Q: What efforts are made to try to get the 

truth from the child?

A: Just by asking the open-ended 

questions, real open questions. You know, 

the best is when a child tells you the 

narrative form where you’re not asking this 

-- you know, asking specific questions but 

open questions, Tell me what happened or 

tell me more about that, and then it comes 

directly from the child. 

Q: Now, specifically about the interview 

you did with [M.T.]. Please describe what 

you remember of the interview and what you 

did and, of course, what the child told you.

A: Okay . . . I asked her to tell me about 

the event that happened with her pawpaw. And 

she told me about pawpaw touching her rose 

and happening in the bathroom.

Opdyke never testified as to her opinion of M.T.’s truthfulness 

or credibility; instead, she testified as to how she conducted 

her interview and what M.T. told her. Thus, her testimony does 

not constitute the type of victim substantiation found in 

Giddens, Couser, or Ryan. Accordingly, the trial court did not 
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err, much less commit plain error, in allowing her testimony 

into evidence.

C. Motion to Dismiss

Next, defendant argues the trial court erred by denying his 

motion to dismiss for insufficiency of the evidence. 

Specifically, defendant contends that the State did not present

sufficient evidence that defendant touched M.T. for the purpose 

of arousing and gratifying his sexual desires. We disagree.

“The denial of a motion to dismiss for insufficient

evidence is a question of law, which this Court reviews de 

novo.” State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 

621 (2007) (citations omitted). A motion to dismiss is reviewed 

for “whether the State presented substantial evidence of each 

element of the offense and defendant’s being the perpetrator.” 

State v. Hernandez, 188 N.C. App. 193, 196, 655 S.E.2d 426, 429 

(2008) (quotations omitted). 

Here, defendant was charged with taking indecent liberties 

with a child in violation of N.C. Gen. Stat. § 14-202.1. The 

essential elements required for conviction under N.C. Gen. Stat. 

§ 14-202.1 are:

(1) the defendant was at least 16 years of 

age; (2) he was five years older than his 

victim; (3) he willfully took or attempted 

to take an indecent liberty with the victim; 

(4) the victim was under 16 years of age at 

the time the alleged act or attempted act 

occurred; and (5) the action by the 
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defendant was for the purpose of arousing or 

gratifying sexual desire.

State v. Thaggard, 168 N.C. App. 263, 282, 608 S.E.2d 774, 786-

87 (2005); N.C. Gen. Stat. § 14-202.1 (2011). 

Defendant only challenges the third and fifth elements on 

appeal. First, defendant argues that the State did not present 

substantial evidence that he willfully took an indecent liberty 

with M.T. This Court has continuously held that “[t]he 

uncorroborated testimony of the victim is sufficient to convict 

under N.C.G.S. § 14-202.1 if the testimony establishes all of 

the elements of the offense.” State v. McClary, 198 N.C. App. 

169, 175, 679 S.E.2d 414, 419 (2009) (quoting State v. Quarg,

334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993)). During defendant’s 

trial, M.T. testified that defendant pulled down her pants and 

put his finger in her vagina while M.T. was visiting defendant’s 

home. Moreover, the State provided additional witness testimony 

that corroborated M.T.’s allegations. Thus, the State presented 

substantial evidence that defendant willfully took an indecent 

liberty with M.T.

Next, defendant argues the State failed to present 

substantial evidence that his actions were for the purpose of 

sexual arousal or gratification. “The requirement that 

defendant’s actions were for the purpose of arousing or 

gratifying sexual desire may be inferred from the evidence of 
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the defendant’s actions.” McClary, 198 N.C. App. at 174, 679 

S.E.2d at 419 (holding an inference of sexual gratification was 

not in error when defendant only sent the victim letters but 

never had sexual intercourse with the victim). Here, M.T. 

testified that defendant actually carried out the sexual act of 

inserting his finger into M.T.’s vagina. Such evidence was 

sufficient to permit the jury to infer that defendant’s purpose 

in doing so was to arouse himself or to gratify his sexual 

desire. See generally State v. Rogers, 109 N.C. App. 491, 505-

06, 428 S.E.2d 220, 228-29 (1993) (holding the evidence that the 

defendant touched the victim’s chest and vaginal area was 

sufficient to permit the jury to infer that the defendant’s 

purpose in doing so was to arouse himself or to gratify his 

sexual desire). 

Conclusion

Based on the foregoing reasons, defendant’s trial was free 

from error.

NO ERROR.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).