An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA01-1598

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2003

STATE OF NORTH CAROLINA

v .                         Rowan County
                            Nos. 99 CRS 961-63
STEVEN RANDALL RUBEN

    Appeal by defendant from judgment entered 12 July 2001 by Judge Michael E. Beale in Rowan County Superior Court. Originally scheduled to be heard in the Court of Appeals 9 October 2002. Reassigned to this panel by order dated 16 January 2003 of the Chief Judge of the North Carolina Court of Appeals.

    Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

    R. Marshall Bickett, Jr., for defendant appellant.

    TIMMONS-GOODSON, Judge.

    Steven Randall Ruben (“defendant”) appeals from his conviction and resulting sentence entered upon jury verdicts finding him guilty of three counts of second-degree sexual offense. For the reasons stated herein, we find no error by the trial court.
    At trial, the State presented evidence tending to show the following: In January of 1999, defendant was employed as a member of the staff of a residential group home (“the home”) for mentally retarded adults. The alleged victim in this case was a thirty- seven-year-old mentally retarded man residing in the home. On 2 January 1999, defendant was the sole staff member present at thehome from eleven p.m. until seven a.m. the following morning. On 3 January 1999, the victim informed staff members Carlton Jackson (“Jackson”) and Jared Eure (“Eure”) that he “had to tell [them] something.” The victim then informed Jackson and Eure that defendant had engaged in sexual acts with him during the previous day. Specifically, the victim stated that the defendant
        put his hand in my pants, and said he wanted to see my liquid. After he touched me down there he asked me to suck his thing. After I sucked his thing he put his mouth on mine. He made me liquid out of my thing, and then he told me to pull down my britches and turn over on the couch. He did it to me on the couch, he asked me to turn over. He touched my thing and said he wanted some of my liquid. He gave me some of his liquid. He told me to bend over and spread my legs. I told him I didn't like that. I turned over and he put his thing right back there. . . . When he put it in it hurt.

The victim made substantially similar statements regarding defendant's actions to treating health care professionals and an investigating detective. A physical examination of the victim revealed abrasions and swelling of the anal area.
    Defendant gave two statements to law enforcement officers concerning the allegations made by the victim. Detective Brian Stallings of the Salisbury Police Department testified that defendant was “extremely nervous” and “shaking uncontrollably” during his interview. In his first statement, defendant contended that he discovered the victim in the room of another resident the evening of 2 January, and that when defendant ordered the victim out of the room, the victim became angry and refused to go to bed. In his second statement, defendant averred that the victim firstapproached him and touched his penis, but that he told the victim to stop. According to defendant, he later discovered the victim “in a female resident's room trying to have sex with her.” When defendant ordered the victim out of the resident's room, the victim became angry and refused to go to bed.     
    Defendant presented no evidence at trial. Upon considering the evidence, the jury found defendant guilty of three counts of second-degree sexual offense. The trial court consolidated two of the three convictions and imposed a minimum term of imprisonment of 96 months, with a maximum term of 125 months. The trial court sentenced defendant to an identical consecutive term for the third conviction. From his convictions and resulting sentences, defendant appeals.
    _____________________________________________________
    In his sole argument on appeal, defendant contends that the trial court erred in admitting statements by the victim into evidence under Rule 804(b)(5) of the North Carolina Rules of Evidence. For the reasons stated herein, we hold that the trial court did not err in admitting this evidence.
    Before defendant's trial, the State filed a motion in limine seeking a ruling on the admissibility of the victim's statements to Jackson and others under Rule 804(b)(5). After conducting a hearing on the matter, the trial court ruled that the victim was unavailable as a witness due to mental infirmity and that the statements were admissible under Rule 804(b)(5). Defendant contends that this ruling was in error, and that the trial courterred in admitting statements made by the victim. We disagree.
    Rule 804 of the North Carolina Rules of Evidence provides in pertinent part:
        (b)    Hearsay Exceptions. -- The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
        
        . . . .
        
        (5)    Other Exceptions. -- A statement not specifically covered by any of the foregoing exceptions [for former testimony, statements under belief of impending death, statements against interest and statements of personal or family history] but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.

N.C. Gen. Stat. § 8C-1, Rule 804(b) (2001). Before a statement may be admitted under Rule 804(b), the trial court must first determine that the witness is unavailable. See State v. Triplett, 316 N.C. 1, 8, 340 S.E.2d 736, 740 (1986). “The degree of detail required in the finding of unavailability will depend on the circumstances of the particular case.” Id. The trial court's determination of unavailability must be supported by its findings, which findings inturn must be supported by the evidence. See id. A witness may be “unavailable” where he is “unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.” N.C. Gen. Stat. § 8C-1, Rule 804(a)(4) (2001). In the instant case, the trial court found that the victim was unavailable as a witness due to mental infirmity, and defendant does not challenge this finding.
    Once the trial court finds the declarant is unavailable, it must proceed with a six-part inquiry to determine admissibility. See Triplett, 316 N.C. at 8, 340 S.E.2d at 741. First, the trial judge must determine that proper notice was given to the adverse party. Detailed findings of fact are not required. See id. at 9, 340 S.E.2d at 741. In the instant case, defendant concedes that the State gave him proper notice, and that the trial court correctly found that proper notice had been given.
    After the trial court determines the notice requirement has been met, it must next determine that the statement is not covered by any of the exceptions listed in Rule 804(b)(1)-(4). See id. “The trial judge need only enter his conclusion in this regard in the record.” Id. Defendant does not challenge the trial court's ruling on this issue, and we turn to the third step.
    In the third step of determining admissibility under Rule 804(b)(5), the trial court must make findings of fact and conclusions of law that the statement sought to be introduced possesses “equivalent circumstantial guarantees of trustworthiness.” N.C. Gen. Stat. § 8C-1, Rule 804(b)(5); State v.Smith, 315 N.C. 76, 93, 337 S.E.2d 833, 844-45 (1985). A trial court must consider the following factors in determining whether a hearsay statement sought to be admitted under Rule 804(b)(5) is trustworthy: (1) the declarant's personal knowledge of the underlying events, (2) the declarant's motivation to speak the truth or otherwise, (3) whether the declarant ever recanted the statement, and (4) the practical availability of the declarant at trial for meaningful cross-examination. See Triplett, 316 N.C. at 10-11, 340 S.E.2d at 742. The trial court may also properly consider the nature and character of the statement and the relationship of the parties in deciding whether the statement is trustworthy. See State v. King, 353 N.C. 457, 479, 546 S.E.2d 575, 592 (2001), cert. denied, 534 U.S. 1147, 151 L. Ed. 2d 1002 (2002); Triplett, 316 N.C. at 11, 340 S.E.2d at 742.
    In the case sub judice, defendant contends that the trial court erred in determining that the victim's statements to others contained sufficient indicia of trustworthiness. Specifically, defendant argues that, as the declarant is mentally infirm, his statements are inherently suspect. We disagree.
    It is well established that a witness's inability to testify at trial due to incompetence does not prevent that witness's statement from being admitted under Rule 804(b)(5). See State v. Waddell, 351 N.C. 413, 422-23, 527 S.E.2d 644, 650-51 (2000). The relevant circumstances in determining trustworthiness include only those that surround the making of the statement. See id. Here, the trial court found that the victim's statements to Jackson weretrustworthy because of the relationship between the two men. The trial court noted that whenever the victim made false statements, such statements were easily identified by Jackson as being untrue, and that the victim always apologized and retracted these falsehoods. The trial court found that the victim never retracted his statements concerning defendant.
    As to the victim's statement to the investigating detective and health care professionals, the trial court found that the victim held law enforcement officers in high regard, and even fantasized about being a policeman. Because of the victim's “confirmed admiration and respect for policemen,” the trial court found it “unlikely that he would misrepresent the alleged events” to the detective. Similarly, the trial court found that the victim “regularly received medical treatment at the hospital” and that he “knew that the doctors and nurses were there to help him” such that a “relationship of trust” existed between the victim and the health care professionals. Regarding the victim's statements to all four witnesses, the trial court found that the victim had “no motivation . . . to misrepresent anything” and that the victim had “never recanted any of the statements concerning the charges.” The trial court further found that the victim's “mental ability [was] too limited to carry out a farce.” We conclude that the trial court's findings adequately support its determination that the victim's statements to others were trustworthy. See State v. Wagoner, 131 N.C. App. 285, 291, 506 S.E.2d 738, 742 (1998) (holding that, despite the fact that the child witness was found to be incompetentto testify as a witness due to her inability to distinguish fantasy from reality at the time of the hearing, there were nevertheless sufficient indicia of trustworthiness surrounding her statements to others concerning sexual abuse by the defendant to support admissibility of the statements under Rule 804(b)(5)), disc. review denied, 350 N.C. 105, 533 S.E.2d 476 (1999).
    The next step for the trial court under the six-prong test is a determination that the proffered statement is offered as evidence of a material fact. See Smith, 315 N.C. at 94, 337 S.E.2d at 845. Defendant concedes that the victim's statements form the substance of the charges against him.
    The trial judge next must consider whether the hearsay statement “is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” N.C. Gen. Stat. § 8C-1, Rule 804(b)(5). “The requirement imposes the obligation of a dual inquiry: were the proponent's efforts to procure more probative evidence diligent, and is the statement more probative on the point than other evidence that the proponent could reasonably procure?” Smith, 315 N.C. at 95, 337 S.E.2d at 846. In regard to this inquiry, the trial court found that, because the only two people present during the crime were defendant and the victim, the victim's statements would be “the only direct evidence of what occurred.” We find no error by the trial court in its conclusion that the victim's statements were more probative than any other evidence that the State could offer through reasonable efforts.     The final inquiry under Rule 804(b)(5) is whether “the general purposes of [the] rules [of evidence] and the interests of justice will best be served by admission of the statement into evidence.” N.C. Gen. Stat. § 8C-1, Rule 804(b)(5); Smith, 315 N.C. at 96, 337 S.E.2d at 846. The trial court here made such a conclusion. Although defendant complains that the trial court did not set forth the reasons for this conclusion, “[t]he trial judge need only state his conclusion in this regard.” Triplett, 316 N.C. at 9, 340 S.E.2d at 741.
    In summary, the trial court correctly utilized and applied the six-prong test for determining admissibility under Rule 804(b)(5) set forth by our Supreme Court in Triplett. Further, the trial court's findings support its conclusions of law regarding the admissibility of the victim's statements. We therefore hold that the trial court did not err in admitting into evidence statements made by the victim under Rule 804(b)(5). In the judgment of the trial court, we therefore find
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***