1. Evidence--minor child's testimony--alleged violation of sequestration order
The trial court did not abuse its discretion in an indecent liberties with a minor case by refusing to strike
the testimony of the minor child victim, based on an alleged violation of the trial court's sequestration order
when the minor child looked at her mother while testifying, because defendant has provided no evidence
indicating the number of times or the frequency in which the minor victim looked at her mother during the
testimony, nor has defense counsel argued that the trial court was even aware of these purported violations.
2. Appeal and Error--preservation of issues--failure to object--failure to argue plain error
Although defendant contends the trial court erred in an indecent liberties with a minor case by instructing
the jury that it could consider the testimony of an officer concerning statements made by the minor victim only to
impeach the credibility of the witness, rather than as corroborative evidence, defendant waived review of this
issue since: (1) defendant did not object at trial to any portion of the jury instruction as required by N.C. R. App.
P. 10(b)(2); and (2) defendant has not preserved the issue for plain error review by specifically and distinctly
contending plain error as required by N.C. R. App. P. 10(c)(4).
3. Evidence--hearsay--not medical diagnosis or treatment exception--corroboration--excited
utterance exception
Although the trial court erred in an indecent liberties with a minor case by allowing the minor child's
mother to testify to statements made to her by the minor child after the incident with defendant based on the
medical diagnosis or treatment exception of Rule 803(4), this testimony was still admissible because: (1) a
witness's prior consistent statements are admissible to corroborate the witness's sworn trial testimony, and the
minor child's trial testimony was nearly identical to her mother's testimony; (2) there is no requirement that a
trial judge disclose the grounds on which he excludes or admits evidence since it is presumed that the trial court
had a valid reason; (3) if the offering party does not designate the purpose for which properly admitted evidence
is offered, the evidence is admissible as either corroborative or substantive evidence; and (4) the testimony could
have been admitted as substantive evidence under the excited utterance exception of Rule 803(2).
4. Constitutional Law--effective assistance of counsel--failure to object to corroborative testimony
Defendant's constitutional right to effective assistance of counsel was not violated in an indecent liberties
with a minor case, based on defense counsel's failure to object to a police officer's testimony admitted to
corroborate the minor victim's testimony, because even though the officer's testimony did not precisely reflect
the minor victim's trial testimony, the testimony was not objectionable since it tended to confirm and strengthen
the minor victim's testimony.
Judge GREENE concurring in the result.
Attorney General Michael F. Easley, by Assistant Attorney General Jane
Rankin Thompson, for the State.
Scott C. Robertson for the defendant-appellant.
LEWIS, Judge.
Defendant was tried at the 11 August 1998 session of Cabarrus County
Superior Court on one count of taking indecent liberties with a minor. The
jury returned a verdict of guilty. Defendant was sentenced to an active
sentence of nineteen to twenty-three months imprisonment, suspended except
for a one-hundred seventy-two day term. Defendant appeals, making seven
arguments.
[1]We will combine defendant's first two arguments for our analysis, as
defendant has done on appeal. Defendant argues the trial court erred in
refusing to strike the testimony of "K," the prosecuting witness in this
case, which he contends was admitted during a violation of the court's
sequestration order. Before K, a five-year-old child, testified at trial,
the court sequestered all witnesses and one of K's parents, allowing her
mother to remain in the courtroom. The court stated that during K's
testimony, her mother should sit outside the child's direct line of vision,
where K "would not be able to look" at her. According to the trial
transcript, the court designated a place for K's mother to sit. Defendant
now contends that since K did look at her mother while testifying at trial,
the sequestration order was violated and the court should have thereby
stricken K's testimony. We disagree.
Even if defendant were to establish that the sequestration order here
was violated, defendant has failed to show that the testimony elicited during
this purported violation must be excluded. The institution of a
sequestration order is within the sound discretion of the judge and is not
reviewable absent a showing of abuse of discretion. State v. Williamson, 122
N.C. App 229, 233, 468 S.E.2d 840, 844 (1996). A defendant's showing that a
sequestration order has been violated does not result in automatic exclusion
of the testimony elicited during the violation; the trial court has
discretion to exclude the testimony. Id. Defendant has provided no evidence
on appeal indicating the number of times or the frequency in which K looked
at her mother during her testimony. Nor does defense counsel argue that thecourt was even aware of these purported violations. Without kn
owing the
extent to which any purported violation occurred, we are unable to conclude
either that a violation of the order occurred, or that the trial court abused
its discretion. This assignment of error is overruled.
[2]Defendant next argues the trial court erred in its instruction to
the jury on certain evidence admitted for corroborative purposes. Officer
Audrey Charlene Bridges, who spoke with K following the incident in this
case, testified concerning statements made by K. Officer Bridges' testimony
was admitted to corroborate the testimony of K; however, the court instructed
the jury that they "may consider this evidence that [K] made a prior
inconsistent statement only to impeach the credibility of the witness." Our
review indicates that defendant did not object at trial to any portion of the
jury instruction as required by Rule 10(b)(2) of the Rules of Appellate
Procedure. Nor has defendant preserved the issue for plain error review by
"specifically and distinctly" contending plain error in his assignments oferror as
required by Rule 10(c)(4) of the Rules of Appellate Procedure. In
failing to assert plain error, defendant has waived review by this
Court. State v. Moore, 132 N.C. App. 197, 201, 511 S.E.2d 22, 25,
disc. review denied, 350 N.C. 103, __ S.E.2d __ (1999).
[3]Next, defendant argues the trial court erred in allowing
K's mother to testify to statements made to her by K after the
incident with defendant because the statements were hearsay. The
State maintains that this testimony falls within the hearsay
exception for statements made for the purpose of medical diagnosis
or treatment, Rule 803(4). We disagree with the State's argument,
yet still conclude that the evidence was admissible.
Statements relevant to medical diagnosis or treatment have
been recognized as an exception to the rule prohibiting hearsay
testimony. N.C.R. Evid. 803(4). Statements made to an individualother than a medical doctor may constitute statements made for the
purpose of medical diagnosis or treatment. State v. Smith, 315
N.C. 76, 84-85, 337 S.E.2d 833, 840 (1985). The trial court,
nonetheless, must determine whether the proponent has met two
inquiries before evidence may be admitted under Rule 803(4): "(1)
whether the declarant's statements were made for purposes of
medical diagnosis or treatment; and (2) whether the declarant's
statements were reasonably pertinent to diagnosis or treatment.
State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).
The first inquiry requires the proponent to "affirmatively
establish that the declarant had the requisite intent by
demonstrating that the declarant made the statements understanding
that they would lead to medical diagnosis or treatment." Id. at
287, 523 S.E.2d at 669. The purpose underlying this motive
requirement is to assure the trustworthiness of the declarant's
statements. Id. at 287, 523 S.E.2d at 668.
In determining the motivation for the declarant's statements
sought to be admitted, the court may consider all objective
circumstances of record surrounding the declarant's statements.
Id. at 288, 523 S.E.2d at 671. In this case, K's mother testified
that K explained defendant touched her in her "private part," was
"rubbing her hard," and that it hurt. Our review of the record
reveals no evidence that K made these statements to her mother with
the understanding that they would lead to medical treatment. The
mother's testimony does not reveal how this discussion was
initiated, and there is no evidence that K understood her mother tobe asking her about the incident in order to provide medical
diagnosis or treatment. Because the first requirement under
Hinnant is not satisfied, we conclude that this testimony was
improperly admitted under Rule 803(4). Unlike the child-victim in
Hinnant, however, K testified at trial. As such, we must consider
whether K's statements to her mother were admissible to corroborate
K's trial testimony.
It is well-settled that a witness' prior consistent statements
are admissible to corroborate the witness' sworn trial testimony.
State v. Harrison, 328 N.C. 678, 681, 403 S.E.2d 301, 303 (1991).
Corroborative evidence by definition tends to "strengthen, confirm,
or make more certain the testimony of another witness." State v.
Adams, 331 N.C. 317, 328-29, 416 S.E.2d 380, 386 (1992).
Corroborative evidence need not mirror the testimony it seeks to
corroborate, and may include new or additional information as long
as the new information tends to strengthen or add credibility to
the testimony it corroborates. State v. Petty, 132 N.C. App. 453,
458, 512 S.E.2d 428, 432 (1999). Prior statements by a witness
which contradict trial testimony, however, may not be introduced
under the auspices of corroborative evidence. Id.
At trial, K testified that the defendant "touched her in her
private part," and that it hurt. As stated earlier, K's mother
later testified that K explained defendant touched her in her
"private part," was "rubbing her hard," and that it hurt. K's
trial testimony being nearly identical to the trial testimony of
her mother, we conclude that the statements of K's mother in thiscase corroborated K's trial testimony, and were admissible for that
purpose.
While it is better for the party offering the evidence to
specify the purpose for which it is offered, unless challenged,
there is no requirement that such purpose be specified. State v.
Ford, 136 N.C. App. 634, 640, 525 S.E.2d 218, 222 (2000). If
evidence is admitted for corroborative purposes, as it should have
been here, the trial court is not required to provide a limiting
instruction unless requested by the party objecting to the use of
the evidence. State v. Goodson, 273 N.C. 128, 129, 159 S.E.2d 310,
311 (1968). We therefore conclude that the testimony of K's mother
was properly admitted.
The concurring opinion sets forth a rule: "If the evidence is
offered for multiple purposes and the trial court rules the
evidence is admissible for some but not all of those purposes, the
offering party must object to the trial court's ruling and cross-
assign error to the ruling to preserve the ruling for appellate
review." The trial court in this case simply admitted the
testimony under the medical diagnosis or treatment exception to the
hearsay rule -- it did not specifically exclude admission under any
of the other purposes argued, including that of corroboration. In
our view, this asserted rule creates several great burdens required
by no constitution, statute, case, rule or reason. For instance,
under the asserted rule, the party offering the evidence who
received a favorable ruling by the trial court would nonetheless be
made to object to that favorable ruling and to specifically objectto every argument mentioned at trial for which the evidence was not
admitted. The effect would be that the offering party would be
made to preserve for appellate review an issue that may or may not
be asserted on appeal by the opponent. Secondly, the trial court
would be under a duty to specifically enumerate not only the rule
under which it admits evidence, but each rule under which it is not
admitting evidence, relevant to the possibly convoluted arguments
asserted by the parties. There is no requirement that a trial
judge disclose the grounds on which he excludes or admits evidence;
on review it is presumed that the trial court had a valid reason.
McCombs v. McLean Trucking Co., 252 N.C. 699, 705-6, 114 S.E.2d
683, 687 (1960). Further, we find no authority requiring the trial
court to disclose the grounds for which it is not admitting
evidence. And under this newly proposed rule, this Court would be
largely narrowed in its own review. If evidence was improperly
admitted, but could have been admitted under a rule that no one
realized at the time of trial, this Court would be effectively
precluded from applying a rule that allows for admission of the
evidence, forcing us to find error where none, in the substance of
the case, occurred. This rule is not part of the majority opinion.
In addition to our conclusion that the testimony of K's mother
was admissible for corroborative purposes, we note that if the
offering party does not designate the purpose for which properly
admitted evidence is offered, the evidence is admissible as either
corroborative or substantive evidence. Goodson, 273 N.C. at 129,
159 S.E.2d at 311. Incidentally, the testimony of K's motherrelating the child's out-of-court statements, which were made no
longer than thirty minutes after the incident with defendant, could
have also been admitted as substantive evidence under the excited
utterance exception of Rule 803(2). State v. Thomas, 119 N.C. App.
708, 460 S.E.2d 349 (1995) (child's statement regarding child's
sexual abuse admissible as excited utterance when made four to five
days after the startling event); State v. Jones, 89 N.C. App. 584,
367 S.E.2d 139 (1988) (child's statement to mother regarding sexual
abuse made ten hours after leaving defendant's custody held
admissible as excited utterance).
[4]Defendant next argues his constitutional right to
effective assistance of counsel at trial was violated because his
trial counsel failed to object to the testimony of Officer Bridges.
Defendant contends his trial counsel should have objected when
Officer Bridges' testimony, admitted to corroborate the testimony
of K, was "different" from K's testimony.
To establish ineffective assistance of counsel, the defendant
must satisfy a two-part test set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674
(1984). See also State v. Williams, 350 N.C. 1, 18-19, 510 S.E.2d
626, 638 (1999). Under this test, the defendant must first show
that counsel's performance fell below an objective standard of
reasonableness as defined by professional norms; and second, the
error committed was so serious that a reasonable probability exists
that the trial result would have been different absent the failure
of counsel. Id. To determine whether the defense counsel'sperformance fell below an objective standard of reasonableness, we
must first ascertain whether Officer Bridges' testimony was
objectionable.
In this case, Officer Bridges testified that K stated
defendant had "rubbed her between her legs," which hurt, and asked
her to keep it a secret, whereas K testified defendant touched her
with his hand between her legs and held her hand up vertically to
demonstrate, rather than horizontally, and that it hurt. K also
testified that when defendant touched her he asked her to keep it
a secret. Under the rules relating to corroborative evidence set
forth above, we find that although Officer Bridges' testimony did
not precisely reflect K's trial testimony, it tended to confirm and
strengthen her testimony. We therefore conclude that this
testimony properly corroborated the trial testimony of K.
Accordingly, defense counsel did not inappropriately fail to
object, and defendant has failed to satisfy the first part of the
Strickland test.
We have reviewed defendant's remaining assignments of error
and find them to be without merit.
No error.
Judge EDMUNDS concurs.
Judge GREENE concurs in the result.
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