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Click here for the full text of this decision FACTS:John Charles Fox IV was convicted by a jury for aggravated sexual assault of a child. The victim, L.C., was 11 years old at the time of the offense and 14 at the time of trial. Fox was the victim’s mother’s former boyfriend and had lived in the home with them for eight years, but, at the time of the offense, he had been out of the home for almost a month. Fox appealed, contending the trial court erred in failing to make an inquiry into the mental status of the victim during her testimony at the penalty phase; in failing to grant a mistrial after the victim suffered a psychotic episode during her testimony at the penalty phase; in overruling his objection to the opinion by the state’s expert that the victim was telling the truth; in limiting his cross-examination of the state’s witnesses regarding the victim’s post-traumatic stress disorder; and in denying his motion for new trial. Fox also contends that he was denied effective assistance of counsel at trial and that he was denied due process of law by the state’s suppression of exculpatory evidence. HOLDING:Affirmed. As to the mental status of L.C., the court notes that although Fox was aware before trial that L.C. had mental problems, at no time did he object to L.C.’s testimony on the ground she was not mentally competent to testify. L.C. had testified at the guilt/innocence stage without an objection to her competency. L.C. answered all the questions coherently, with intelligence and understanding. She also testified she knew the difference between telling the truth and a lie. Thus, reviewing the record as a whole, the court holds the trial court did not abuse its discretion by failing to sua sponte conduct a hearing to determine L.C.’s mental competency or in overruling Fox’s motion for a mistrial. Fox next asserts the trial court erred in admitting the expert testimony of Ed Wagoner, a licensed professional counselor called by the state, because that testimony constitutes an improper opinion. The court finds that it was Fox who elicited the testimony of which he complains. On cross-examination of Wagoner, Fox went through each of the “factors that [he] consider[s] in determining the truthfulness of a child.” Then, in concluding the cross-examination, Fox asked Wagoner whether the story appeared to be realistic. That question induced the response that, in Wagoner’s opinion, L.C. was telling the truth. Fox invited the response, and the court therefore concludes that the trial court did not err in admitting Wagoner’s testimony. Fox then contends the trial court erred in limiting his cross-examination of Patti Andrews, L.C.’s therapist, concerning L.C.’s post-traumatic stress disorder. The court holds that because Fox did not clearly articulate that the confrontation clause demanded admission of the evidence, the trial court never had the opportunity to rule on that issue. Consequently, the court finds that no error is preserved. Regarding the denial of Fox’s motion for a new trial, the court holds that the evidence cited by Fox as new was not evidence unavailable before trial. Additionally, the court finds that Fox has not articulated how the “new evidence” would bring about a different result in a new trial. The court therefore concludes that the trial court did not abuse its discretion by overruling the motion for new trial. Finally, as to Fox’s claims of ineffective assistance of counsel and his Brady challenge, the court holds that Fox did not receive ineffective assistance of counsel, that the state did not suppress evidence, and that Fox had full access to the information he contends was suppressed. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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