STATE OF NORTH CAROLINA
v
.
Rowan County
Nos. 99 CRS 961-63
STEVEN RANDALL RUBEN
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.
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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).
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