STATE OF NORTH CAROLINA
v
.
CURTIS LEVAN WADE
Attorney General Roy Cooper, by Assistant Attorney General
Allison S. Corum, for the State.
Russell J. Hollers III, for defendant-appellant.
EAGLES, Chief Judge.
Defendant, Curtis Levan Wade, appeals from judgment entered in
Lenoir County Superior Court upon a jury verdict convicting him of
four counts of taking an indecent liberty with a child; three
counts of felonious child abuse by a sexual act; three counts of
incest; two counts of statutory rape; and one count of first degree
rape. Defendant was sentenced to life in prison.
The State's evidence tended to establish that defendant and
Carol Jean Wade were married in 1980. At the time of her marriage
to defendant, Carol Wade had two daughters from a previous
relationship: “T,” who was eight years old and “L,” who was five.
Both “T” and “L” lived with Carol Wade and defendant in Kinston,
North Carolina. Carol Wade conceived another child, by defendant,
soon after their marriage. Before this child was born, defendant“molested” “T” by fondling her. Carol Wade reported the incident
to authorities and expelled defendant from the home. Carol Wade and
defendant separated after this incident. Although the couple were
not divorced until 2000, defendant never again lived with the
family. Carol Wade gave birth to defendant's daughter, “A,” on 19
November 1981. Defendant had no significant contact with “A” until
she was approximately ten years old, when Carol Wade allowed
defendant to have “visitation” with “A.” Defendant visited with
“A” “periodically” until she reached the age of twelve. At that
point, defendant began a more regular routine of visitation.
“A” testified that during a visit with defendant when she was
ten years old, defendant took her to Bill Fay Park in Kinston,
North Carolina. Once at the park, defendant led “A” down a nature
trail where defendant exposed his erect penis and sat “A” on his
lap, so that his penis was touching her between her legs. “A” did
not report this incident.
During another visit when “A” was twelve years old, defendant
took her to a video store where he rented a pornographic movie.
Defendant then took “A” to his house where they watched the movie
together. Before watching the movie, defendant removed both his and
“A's” clothes so that they were both nude. During the movie,
defendant fondled “A's” breasts and masturbated in front of her.
Later, defendant engaged in vaginal intercourse with “A.” “A” did
not report this incident either.
Thereafter, defendant began regularly engaging in various
forms of sexual intercourse with “A.” “A” testified that shevisited defendant virtually “every weekend” until she was seventeen
years old. “A” further stated that she had sexual intercourse with
defendant “every single time” she visited him. Sometimes this
involved “oral sex” and “fondl[ing],” in addition to vaginal
intercourse. However, defendant always penetrated “A” vaginally,
ejaculated and never wore a condom. At one point, “A” was tested
and treated for gonorrhea. Later, she learned that defendant had
been treated for gonorrhea as well. On 23 October 1999, following
yet another sexual encounter with defendant, “A” told Carol Wade
that defendant had been “molesting” her. The following day, “A” and
Carol Wade reported defendant to the Kinston Police.
Carol Wade testified that shortly before “A” was born, “T”
told her that defendant had “molested” her. As a result, Carol Wade
made defendant leave the home. Initially, Wade thought the incident
with “T” occurred because defendant was a “heavy drinker.”
Consequently, Wade only allowed “A” to visit with defendant because
he had stopped drinking. Notwithstanding this fact, Wade suspected
that something improper might have been going on between defendant
and “A” and on several occasions questioned “A” about her concerns.
Each time, “A” denied that anything improper had occurred.
“T,” now twenty-eight years old, testified that when she was
eight years old, defendant took her into the bathroom of their
home, put “vaseline on his penis” and tried to “put it inside
[her].” “T” said she began to cry and defendant stopped. “T” said
that she told her godmother about the incident, who in turn toldher mother. “T” stated further that defendant left and never
returned to the home after this incident.
“E,” the fourteen year old granddaughter of Carol Wade,
testified that when she was eleven or twelve, defendant volunteered
to babysit her at his house while Carol Wade was at work. While
defendant was helping “E” with her hair, he rubbed his penis on her
buttocks in a way that made her “uncomfortable.” “E” told Carol
Wade about the incident and never went to defendant's house alone
again.
Barbara Hebert, a psychologist and clinical therapist at the
Teddy Bear Child Advocacy Center in Greenville, North Carolina,
also testified. Hebert testified that she performed “A's” initial
“clinical intake” interview in December of 1999. “A” began
counseling immediately following this interview. In June of 2000,
Hebert took over “A's” case and continued counseling “A”
approximately one hour each week until March of 2001. In order to
assist in her therapy, Hebert had “A” complete a time-line of all
of the events of sexual abuse she could recall. Hebert and “A” then
discussed each event on the time-line. Hebert noted that the
earliest events “A” described were known in the field as
“preparatory grooming behaviors.” Hebert also noted that “A”
exhibited feelings of guilt, fault and fear; experienced problems
with trust; confused boundaries between herself and others;
suffered from decreased self-esteem; experienced difficulty in
disclosing the incidents of abuse; and experienced conduct
problems. “Based on her training and experience,” Hebert opinedthat these symptoms were the result of “sexual abuse” because they
“were consistent with those that we[re] see[n] in other victims of
sexual abuse.” Consequently, Hebert counseled “A” “as the victim of
a long history of sexual abuse by her father.”
Melanie Palmer, a licensed nurse and the Women's Health
Supervisor for the Lenoir County Health Department, testified that
health department records indicated that both defendant and “A”
were tested and treated for gonorrhea in 1997: Defendant was
treated on 8 January 1997 and 30 January 1997. “A” was tested on 25
February 1997 and received treatment on 12 March 1997.
Defendant denied all allegations of sexual abuse. Defendant
testified that he believed the charges stemmed from his refusal to
allow “A” to move in with her current boyfriend. Defendant was
convicted and sentenced to life in prison. Defendant appeals.
Defendant first argues that the trial court committed plain
error in admitting the expert testimony of Barbara Hebert. After
careful review of the record and transcript, we find no error.
“The plain error rule . . . is always to be applied cautiously
and only in the exceptional case where, after reviewing the entire
record, it can be said the claimed error is a 'fundamental error,
something 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 omitted). “To prevail
under a plain error analysis, a defendant must establish not only
that the trial court committed error, but that absent the error,the jury probably would have reached a different result.” State v.
Perkins, ___ N.C. App. ___, , 571 S.E.2d 645, 648 (2002).
It has long been the law in North Carolina that “an expert
medical witness may render an opinion pursuant to Rule 702 that
sexual abuse has in fact occurred if the State establishes a proper
foundation . . . .” State v. Dixon, 150 N.C. App. 46, 52, 563
S.E.2d 594, 598 (2002), aff'd per curiam, ___ N.C. ___, 571 S.E.2d
584 (2002). This requires the State to demonstrate that “'the
opinion expressed by the experts was really based upon their
special expertise, or . . . that the experts were in a better
position than the jury to have an opinion on the subject.'” State
v. Grover, 142 N.C. App. 411, 414, 543 S.E.2d 179, 181
(2001)(quoting State v. Trent, 320 N.C. 610, 614, 359 S.E.2d 463,
465 (1987)), aff'd per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001).
Accordingly, “an expert cannot base his conclusions solely on the
children's statements that they had been abused.” State v. Stancil,
146 N.C. App. 234, 240, 552 S.E.2d 212, 215 (2001), modified and
aff'd per curiam, 355 N.C. 266, 559 S.E.2d 788 (2002). Moreover,
“in the absence of physical evidence to support a diagnosis of
sexual abuse, expert testimony that sexual abuse has in fact
occurred is not admissible because it is an impermissible opinion
regarding the victim's credibility.” Dixon, 150 N.C. App. at 52,
563 S.E.2d at 598 (emphasis added). 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, 355N.C. 266, 267, 559 S.E.2d 788, 789 (2002)(per curiam). An expert
may also give an “expert opinion based on her examination of the
child and based on her expert knowledge concerning abused children
in general.” State v. Bailey, 89 N.C. App. 212, 219, 365 S.E.2d
651, 656 (1988). “'The fact that this evidence may support the
credibility of the victim does not alone render it inadmissible.'”
Dixon, 150 N.C. App. at 52, 563 S.E.2d at 598 (quoting State v.
Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)).
Defendant contends that Hebert's testimony was inadmissible
because it was based “solely” on the victim's statements. Defendant
bases this argument on the following portion of his cross-
examination of Hebert:
Q: Ms. Hebert, what other sources of information did
you have other than what [“A”] told you, ma'am, to
base your opinion on?
A: My opinion about what?
Q: That she was a victim of some type of abuse.
A: The -- I base all of my responses to a child on
what they tell me. I do not consult other sources
other than, I guess, her mother.
Q: Okay. So you based your opinion on what [“A”] told
you?
A: Yes.
Q: And no independent corroboration, that is, nothing
to independently corroborate what she was saying.
A: I did not research others.
Where “[t]he expert testimony . . . [is] based on the overall
examination of the child during the course of treatment,” it is not
inadmissible as based “solely on the [victim's] statements.”
Stancil, 146 N.C. App. at 240, 552 S.E.2d at 216. The Stancil court
noted five factors in support of its conclusion that the testimony
was based on the overall examination of the child: (1) The “opinion
was given by an expert in the field of child abuse or childinvestigation and interviews”; (2) The testifying expert “had
conducted at least one interview with [the victim]”; (3) The
testifying expert had “observed the child”; (4) The testifying
expert had “noted [the victim's] symptoms and manifestations”; and
(5) The testifying expert “was aware of [the victim's] account of
the incident to others.” Id.
Here, although Hebert was never tendered as an expert in the
field of child abuse, she was the clinical therapist at Teddy Bear
Child Advocacy Center. She had a masters degree in marriage and
family therapy and had been working in that field for twelve years,
counseling children who were victims of physical or sexual abuse,
neglect or domestic violence. In addition to performing the initial
“clinical intake” interview of “A” in December of 1999, Hebert took
over “A's” case in June of 2000 and counseled her approximately one
hour per week until March of 2001. Moreover, Hebert testified to
the various behavioral and psychological manifestations that “A”
exhibited during her counseling sessions. Finally, Hebert testified
that she “consulted” Carol Wade during the course of “A's”
treatment.
Although the record is unclear as to whether or not Hebert was
specifically made aware of “A's” account of the incidents to
others; on the facts before us, this alone does not preclude the
determination that Hebert's testimony was based on her overall
examination of “A.” Here, unlike Stancil, Hebert had the
opportunity to observe and counsel “A” on a regular weekly basis
for approximately ten months. We find it unlikely, given thetestimony that was elicited, that Hebert would not have been made
aware of “A's” account of the incidents to others. Therefore, we
conclude Hebert's testimony was based on her overall examination of
“A” during the course of treatment and not based solely on “A's”
statements.
Defendant next contends that because there was no physical
evidence of sexual abuse, Hebert's testimony was inadmissible as
merely an attestation to “A's” credibility. Defendant bases this
argument on the following:
Q: Ms. Hebert, what would you and [“A”] discuss during
these particular sessions?
A: By that time she had been through some of the
initial counseling stages with Ms. Burmeister. And
she and I started to work on relationship issues
that had come about as a result of being abused.
Q: What type of relationship issues did she have in
your opinion that were a result of the abuse?
A: In general children who have had sexual abuse
experiences, especially from a primary caretaker,
someone that they love and trust, have problems
with trust, problems with confused boundaries
between themselves and other people, decreased
self-esteem. They don't respect themselves. They
have a difficult time valuing themselves and
believing that other people should value them. And
they make poor choices as a result of that by
allowing other people to take advantage of them, by
trying to please other people, and sometimes
conduct problems. [“A”] was experiencing all of
those things at that time.
Q: And in your opinion were they a result of the
sexual abuse she had been a victim of in the past?
A: Yes.
Q: Were you aware, Ms. Hebert, as a result of your
counselling with [“A”] that the sexual abuse had
began when she was around the age of ten and had
continued for a number of years?
A: [“A”] and I -- one of the activities that we did
together in processing the abuse experiences she
had had is that we did a time line and started from
birth, worked forward -- when was the first time
that you remember something happening? And we
worked through feelings and her inner -- what sheremembered of her inner processing during that
time. And in that process, yes, she told me that
she had first experienced abuse -- I believe it was
-- and I'm going from my memory and not from the
record. I don't want to contradict something, but
eight or ten.
Q: And did she tell you who that abuse was from?
A: Yes.
Q: Who was that, Ma'am?
A: That was her father, Curtis Wade.
. . . .
Q: In your opinion, Ms. Hebert, based upon your training and
education and your experience as a counselor at the Teddy
Bear Center when you say that [“A”] had relationship
issues, do you have an opinion as to the cause of those
relationship issues?
A: I can't be definitive in saying that all of [“A's”]
relationship issues would stem from the sexual
abuse, but I can say that she had relationship
issues that were consistent with those that we see
in other victims of sexual abuse. So that almost
certainly they at least in part relate back to the
sexual abuse she experienced.
It is well settled that “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). Our courts have also held
that where child victims are examined by psychologists for purposes
of “'diagnosis and treatment of alleged sexual abuse, details of
the offense, including the identity of the offender, provided by
the child during such examination are generally admissible at
trial.'” State v. Youngs, 141 N.C. App. 220, 225, 540 S.E.2d 794,
798 (2000)(citations omitted), disc. review denied, 353 N.C. 397,
547 S.E.2d 430 (2001). Our reading of this testimony leads us to conclude that
Hebert's second response described the general characteristics or
traits exhibited by children who have been sexually abused by
primary caretakers. Hebert ends this answer by giving her opinion
that the manifestations she observed in “A” were consistent with
“all” of those characteristics. Hebert next opined that these
characteristics were the result of past sexual abuse and explained
in her final response that this conclusion was based on the
consistency between the manifestations exhibited by “A” and other
victims of sexual abuse. Hebert next relayed what she had been told
by “A” during the course of treatment, regarding some of the
details of her abuse and the identity of her abuser. Therefore,
while this testimony comes precariously close to that which has
previously been held inadmissible by our courts, see, State v.
Trent, 320 N.C. 610, 359 S.E.2d 463 (1987); State v. Grover, 142
N.C. App. 411, 543 S.E.2d 179 (2001), we conclude there was no
error.
Here, unlike Trent and Grover, Hebert did not explicitly
testify that “A” had in fact been sexually abused. Instead, Hebert
stated that her overall conclusion was that “A's” manifestations
were consistent with those exhibited by other victims of sexual
abuse, which was proper under Stancil. Based on this consistency,
Hebert further opined that these manifestations were the result of
past sexual abuse. This is not the same as saying that “A” was in
fact sexually abused. Rather, this testimony related to a
conclusion based upon the witness's expert knowledge concerningabused children in general. Therefore, this testimony was
permissible under State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651
(1988).
We are also mindful that this Court has previously allowed a
treating psychologist to testify that a child had in fact been
sexually abused. In State v. Youngs, 141 N.C. App. 220, 540 S.E.2d
794 (2000), this Court held that “an expert may testify to his
opinion that a child has been sexually abused as long as this
conclusion relates to a diagnosis based on the expert's examination
of the child during the course of treatment.” Id. at 227, 540
S.E.2d at 799. The Youngs court found the following “testimony
established a sufficient foundation to permit the trial court to
allow [the psychologist's] expert opinion to be admitted into
evidence”: (1) The witness testified to being “a professional
psychologist in private practice . . . specializing in children and
adolescents”; (2) The witness “was accepted as an expert witness in
the field of child psychology”; (3) The witness “treated [the
victim] on at least forty-five occasions prior to trial” and (4)
the witness's opinion was “[b]ased on her observations during
treatment, her professional experience, and the report of [the
examining physician which concluded that the victim had sustained
vaginal, oral and possibly anal penetration.]” Id. at 227-28, 540
S.E.2d at 799.
Here, we have already concluded that Hebert's testimony was
based on her overall examination of “A” made during treatment. In
addition, Hebert testified that she was a professional psychologistwith twelve years experience specializing in the treatment of
abused children; that her opinion was based on her training,
education and experience as a counselor; and that she counseled
“A” on a weekly basis for approximately ten months, which equates
to approximately forty, hour-long sessions prior to trial. Hebert
also testified concerning her observations made during the course
of “A's” treatment. Although Hebert was not specifically tendered
and accepted as an expert in the field, defendant concedes in his
brief that Hebert was an expert. Even though there was no medical
report indicating that there had been “penetration”; the mere fact
that no physical examination was performed on the victim does not
negate the probative value of the testimony and render the expert
incompetent to testify.
In State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212 (2001),
modified on other grounds and aff'd per curiam, 355 N.C. 266, 559
S.E.2d 788 (2002), this Court found a psychologist competent to
testify despite the absence of physical evidence of abuse. The
Stancil court distinguished Grover on grounds that in Stancil, “the
nature of the sexual act (cunnilingus) was not likely to leave
forensic evidence, particularly after the child used the bathroom.”
Id. at 240, 552 S.E.2d at 215. Notwithstanding that fact, the
Stancil court concluded that the expert's testimony was admissible
as “based on the overall examination of the child during the course
of treatment,” pointing out that “[t]he child not only was
consistent in relating facts during each interview but also
exhibited physical symptoms of trauma such as compressed speech,hand-wringing, shaking, nervousness and anxiety.” Id. at 240, 552
S.E.2d at 216.
Here, like Stancil, some of the acts alleged by “A,” i.e.,
cunnilingus and fellatio, involved acts that were not likely to
leave forensic evidence. Furthermore, although “A” alleged acts
that were likely to yield physical evidence, it is unlikely that a
physical examination would have resulted in the recovery of any
evidence with forensic value, given the length of time that had
elapsed between the offenses and their reporting. It is also
noteworthy that here, like Stancil, there was other corroborating
physical evidence that indicated abuse: the medical records which
indicated that both “A” and defendant were treated for a sexually
transmitted disease at approximately the same time during 1997. On
these facts, we conclude that Hebert's opinion concerning whether
“A” had been sexually abused was admissible, as it related to a
diagnosis based on her examination of “A” during the course of
treatment.
Finally, we note that the scope of our review is limited to
that of plain error. In Stancil, our Supreme Court concluded that
“although the trial court's admission of the challenged portion of
Dr. Prakash's testimony was error, it did not rise to the level of
plain error” because “[t]he overwhelming evidence against
defendant” lead[] . . . to [the] conclu[sion] that the error
committed did not cause the jury to reach a different verdict than
it otherwise would have reached.” Stancil, 355 N.C. at 267, 559
S.E.2d at 789. After carefully reviewing the entire record, wecannot say that defendant has shown that the jury probably would
have reached a different verdict. Even if the questionable portions
of Hebert's testimony were stricken, the jury would still have
before it: (1) the testimony of the victim; (2) corroboration of
the victim's account; (3) evidence of defendant's pattern of
misconduct; (4) evidence of the victim's psychological symptoms;
(5) the conclusion of an expert that these symptoms were consistent
with those exhibited by victims of sexual abuse; and (6) medical
records indicating that both the victim and defendant were treated
at approximately the same time for a sexually transmitted disease.
Since there was overwhelming evidence against defendant, none of
the alleged errors, if any, rises to the level of plain error.
Accordingly, this assignment of error is rejected.
Defendant next argues that the trial court committed plain
error when it failed to strike portions of Carol Wade's testimony
ex mero motu. Defendant contends the following portions of Carol
Wade's testimony were inadmissible under Rule 701: (1) her initial
opinion that defendant's “drinking was the reason that he . . . had
molested . . . [“T”]”; (2) her ultimate conclusion that defendant
“was a molester at heart”; (3) her conclusion that some of
defendant's other behavior was because he was “drinking and crazy”;
(4) her testimony concerning the “signs [that] made her suspicious
of [defendant]”; and (5) her sense that “[defendant] only
cultivated a boyfriend/girlfriend relationship with his daughter”.
Although defendant made no objections at trial, he now argues that
the trial court's failure to strike the testimony ex mero motuconstitutes plain error. After careful review of the whole record,
we disagree.
Rule 701 provides that a lay witness may testify in the form
of opinions or inferences, provided they are “(a) rationally based
on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in
issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2001). However, nothing
in Rule 701 bars “evidence that is commonly referred to as a
'shorthand statement of fact.'” Id. See, Commentary.
[Our courts have] long held that a witness may state the
'instantaneous conclusions of the mind as to the
appearance, condition, or mental or physical state of
persons, animals, and things, derived from observation of
a variety of facts presented to the senses at one and the
same time.' Such statements are usually referred to as
shorthand statements of facts.
State v. Brown, 350 N.C. 193, 203, 513 S.E.2d 57, 64
(1999)(citations omitted).
A careful reading of the testimony as a whole reveals that
most, if not all, of the challenged testimony related to
conclusions as to the mental state of defendant derived from
observation of a variety of facts and circumstances. Therefore, the
testimony was admissible as shorthand statements of facts. When
taken out of context, Wade's statement that defendant was a
“molester at heart” gives us some pause; when read in context, we
cannot say that absent this statement, the jury probably would have
reached a different result. Accordingly, this assignment of error
is rejected. Defendant next argues that the trial court committed plain
error by allowing “A” to give the following testimony:
Q: Why didn't you think anyone would believe you?
A: Because of what my father said.
Q: What had your father told you about someone
believing you?
A: He said that it would be his word against mine and
that no one would believe me.
(Emphasis added.) Although defendant did not object at trial, he
now contends that his statement to “A” was inadmissible hearsay and
the trial court committed plain error by failing to strike the
testimony ex mero motu. We disagree.
“'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.
Stat. § 8C-1, Rule 801(c) (2001). “A statement is admissible as an
exception to the hearsay rule if it is offered against a party and
it is (A) his own statement . . . .” N.C. Gen. Stat. § 8C-1, Rule
801(d)(A) (2001). Here, defendant's statement was admissible as an
admission by a party-opponent. Therefore, defendant's argument is
without merit.
Defendant makes the same argument with respect to certain
portions of Carol Wade's testimony. Specifically, defendant
contends the following was inadmissible as hearsay: (1) “E” “told
her that [defendant] had done something to her that made her feel
uncomfortable”; (2) “A's” boyfriend, Gene, “had told [“A”] to tell
Carol 'what [defendant] been doing to you'”; (3) The police
department told her twenty years earlier that “T's” allegations
would be “[defendant's] word against hers”; (4) “E” had told herthat “she had seen [“A”] nude in front of [defendant].” After
careful review of the record, we disagree and find no error.
Statements “relating to a startling event or condition made
while the declarant was under the stress of excitement caused by
the event or condition” are not excluded as hearsay. N.C. Gen.
Stat. § 8C-1, Rule 803(2) (2001). Our Supreme Court has held that
when a young child's report of sexual abuse is made “between two
and three days of the event,” those statements are admissible under
the excited utterance exception of Rule 803(2). State v. Smith, 315
N.C. 76, 90, 337 S.E.2d 833, 843 (1985).
Here, “E” testified that she “immediately” told a neighbor and
her grandmother, Carol Wade, about the incident. Therefore, “E's”
statement was admissible as an excited utterance. The testimony was
also admissible for corroboration since “E” testified to the events
herself. A careful reading of the testimony reveals that the
remaining portions of the challenged testimony were not offered for
the truth of the matter asserted, rather they were offered for the
non-hearsay purposes of showing state of mind and effect on the
listener. Accordingly, this argument is also rejected.
Defendant next argues that the trial court committed plain
error by permitting Melanie Palmer to testify that both defendant
and “A” had been treated for gonorrhea. Defendant contends this
testimony was inadmissible as hearsay because Palmer did not
“treat” him. Defendant further contends that the evidence was
irrelevant and the trial court committed plain error by failing to
strike the testimony ex mero motu. We disagree. Rule 803 of the North Carolina Rules of Evidence provides
that the following are not excluded by the hearsay rule:
(4) Statements for Purposes of Medical Diagnosis or
Treatment. Statements made for purposes of medical
diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external
source thereof insofar as reasonably pertinent to
diagnosis or treatment.
. . . .
(6) Records of Regularly Conducted Activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business
activity, and if it was the regular practice of that
business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source
of information or the method or circumstances of
preparation indicate lack of trustworthiness.
N.C. Gen. Stat. § 8C-1, Rule 803 (2001).
Here, Palmer's testimony was based upon the contents of
medical records maintained by the Lenoir County Health Department.
Palmer testified that the records were “based upon information that
individuals give . . . for treatment”; “the notations [are] made
when the individuals come into the health department” by “people at
the health department”; and that the “records [are] maintained
during the normal course, scope, and business of the Lenoir County
Health Department.” This testimony established a sufficient
foundation for the records and their contents to be admitted into
evidence. Therefore, this assignment of error is without merit.
“'Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to thedetermination of the action more probable or less probable than it
would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401
(2001). Medical records showing that defendant and the alleged
victim in a child sexual abuse case were both treated for gonorrhea
at approximately the same time is “admissible as evidence with
regard to the cause or source of [the victim's] disease.” State v.
Efird, 309 N.C. 802, 806, 309 S.E.2d 228, 230 (1983).
Here, Palmer testified that “gonorrhea is a sexually
transmitted disease” and “the only way to get it is [through]
intercourse or oral sex” with another individual who has gonorrhea.
Therefore, evidence that both were infected with gonorrhea is
relevant to show that “A” had sexual contact with an infected
person and defendant was an infected person. Accordingly, this
assignment of error is without merit.
Defendant next argues that the trial court committed plain
error by admitting the testimony of “A,” “T” and “E,” pursuant to
Rule 404(b), without making specific findings of fact as to
“sufficient similarity” and “remoteness in time.” The scope of
appellate review “is confined to a consideration of those
assignments of error set out in the record on appeal . . . .” N.C.
R. App. P. 10(a). Here, defendant did not make the trial court's
failure to make findings of fact pursuant to Rule 404(b) the basis
of any assignment of error in the record. Accordingly, this issue
is beyond the scope of our review.
Defendant next argues that the trial court erred in failing to
give the jury a limiting instruction as to the Rule 404(b)evidence. Defendant contends that even though a limiting
instruction was not requested at trial, the trial court should have
intervened ex mero motu and given a Rule 404(b) limiting
instruction. We disagree.
“When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.”
N.C. Gen. Stat. § 8C-1, Rule 105 (2001)(emphasis added). It is the
general rule that “[t]he admission of evidence which is relevant
and competent for a limited purpose will not be held error in the
absence of a request by the defendant for a limiting instruction.
'Such an instruction is not required unless specifically requested
by counsel.'” State v. Stager, 329 N.C. 278, 309, 406 S.E.2d 876,
894 (1991)(citations omitted).
Here, defendant failed to request a Rule 404(b) limiting
instruction. Since evidence of prior acts of sexual misconduct may
properly be admitted under Rule 404(b) “to show a relevant state of
mind such as intent, motive, plan, or opportunity,” State v. Boyd,
321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988), we conclude there
was no error.
Finally, defendant argues that he was deprived of a fair trial
because of the ineffective assistance of his counsel. Defendant
bases this argument on his trial counsel's (1) failure to object to
the expert witness testimony of Barbara Hebert; (2) failure to
object to the Rule 404(b) evidence; and (3) failure to requestlimiting instructions. Defendant contends that absent these errors,
the jury would have reached a different result. We disagree.
When a defendant attacks his conviction on the basis that
counsel was ineffective, he must show that his counsel's
conduct fell below an objective standard of
reasonableness. In order to meet this burden defendant
must satisfy a two part test[:] 'First, the defendant
must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.' . . . The fact that counsel made an error,
even an unreasonable error, does not warrant reversal of
a conviction unless there is a reasonable probability
that, but for counsel's errors, there would have been a
different result in the proceedings. This determination
must be based on the totality of the evidence before the
finder of fact.
State v. Braswell, 312 N.C. 553, 561-63, 324 S.E.2d 241, 248
(1985)(citations omitted).
After careful review of the evidence in light of the forgoing
analysis, we conclude that defendant has not shown that there would
have been a different result in the proceedings. Accordingly, this
assignment of error is without merit. We hold that defendant
received a fair trial, free from prejudicial error.
No error.
Judge GREENE concurs in the result with a separate concurring
opinion.
Judge MARTIN concurs in the result and joins in Judge Greene's
concurring opinion.
*** Converted from WordPerfect ***