IN RE LINT Haywood County
Nos. 01-J-20, 01-J-21
David Childers for Respondent.
Ira L. Dove for Petitioner.
WYNN, Judge.
Respondent, the mother of two minor children, (son and
daughter), appeals from the trial court's award of custody to the
maternal grandmother and stepfather based on evidence showing that
respondent allowed her minor children to be sexually abused.
Respondent argues that the trial court erred by (I) allowing
incompetent testimony by her eight-year-old son; (II) allowing
inadmissible hearsay evidence; and (III) denying her motion to
dismiss the petition. We uphold the trial court's decision.
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Respondent first argues that the trial court erred by allowing
testimony from her son because he was an incompetent witness.
“The general rule is that every person is competent to be awitness unless the trial court determines that he or she is
disqualified under the Rules of Evidence.” In re Clapp, 137 N.C.
App. 14, 19, 526 S.E.2d 689, 694 (2000). Under our rules of
evidence, “a person is disqualified to testify as a witness when
the court determines that he is ... (1) incapable of expressing
himself concerning the matter as to be understood ... or (2)
incapable of understanding the duty of a witness to tell the
truth.” N.C. Gen. Stat. § 8C-1, Rule 601(b) (2001). “The
competency of a witness is a matter which rests in the sound
discretion of the trial judge in the light of his examination and
observation of the particular witness. Absent a showing that the
ruling as to competency could not have been the result of a
reasoned decision, the ruling must stand on appeal.” State v.
Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426 (1987).
In this case, the son (i) accurately testified as to his first
and last name; (ii) indicated where he lived by providing the
address and a description of the area; (iii) accurately testified
as to the first and last names of the people with whom he lived;
(iv) provided the name of his school and grade level; (v)
demonstrated he knew the difference between the truth and a lie by
indicating whether or not the shirt colors of different people were
the colors the attorney stated them to be; (vi) testified that he
understood he had to tell the truth in court; and (vii) testified
that his grandparents explained to him what the truth was. Based
upon this testimony, the trial court found the son was competent to
testify. After his testimony, respondent moved to strike histestimony because she contended his unduly influenced testimony
indicated he did not understand the duty to the truth and did not
understand the difference between the truth and a lie.
(See footnote 1)
In denying the motion to strike, the trial court concluded any
evidence of undue influence implicated credibility, not competency.
We agree. After a trial court deems a witness as competent to
testify, matters regarding whether the witness lied or was unduly
influenced are traditionally resolved as part of the trier of
fact's credibility assessment of the witness. Furthermore, “absent
a showing that the ruling as to competency could not have been the
result of a reasoned decision, the ruling must stand on appeal.”
Id. Accordingly, we uphold the trial court's finding that the son
was competent to testify in this matter.
Respondent next contends the trial court erroneously allowed
inadmissible hearsay testimony from Elizabeth Tulou, Dr. Cynthia
Brown, Beth Osbahr, Dr. Janice Wright, Stephanie Hoadley and Adrian
Cooper regarding the children's description of sexual abuse. The
State contends the hearsay was admissible pursuant to N.C. Gen.
Stat. § 8C-1, Rules 803(4) and 803(24).
We note at the outset that the trial court's findings of fact
and conclusions of law show that the trial court did not include
any evidence obtained from Dr. Wright in those findings orconclusions. Moreover, whereas Findings of Fact 13 and 24 are
based on testimony from Ms. Hoadley and Ms. Cooper regarding
statements about sexual abuse made by the son, the record indicates
that their statements were corrobative of the son's testimony.
Likewise, we hold that the statements of Ms. Osbahr under Finding
of Fact 17 were corrobative of the son's testimony. See State v.
Lloyd, 354 N.C. 76, 103-04, 552 S.E.2d 596, 616-17 (2001)(stating
a prior consistent statement is admissible for corroborative
purposes).
Respondent also contends that the expert opinions of Dr.
Brown, a pediatrician, and Ms. Tulou, a clinical psychologist, were
based on inadmissible hearsay. We disagree.
The admissibility of an expert opinion based on an out-of-
court communication is governed by Rule 703 which provides:
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to him
at or before the hearing. If of a type
reasonably relied upon by experts in the
particular field in forming opinions or
inferences upon the subject, the facts or data
need not be admissible in evidence.
N.C. Gen. Stat. § 8C-1, Rule 703 (2001). In State v. Jones, 322
N.C. 406, 368 S.E.2d 844 (1988), our Supreme Court affirmed that
this rule permits an expert witness to rely on an out-of-court
communication as a basis for an opinion and to relate the content
of that communication to the jury. The Court further noted that
Rule 703 permits an expert witness to base an opinion on the out-
of-court opinion of an expert. Thus, the Court held that “under
Rule 703 . . . a testifying expert can reasonably rely on theopinion of an out-of-court expert and can testify to the content of
that opinion.” Jones, 322 N.C. at 410-11, 368 S.E.2d at 847.
Furthermore, the Court held that “testimony as to matters offered
to show the basis for a physician's opinion and not for the truth
of the matters testified to is not hearsay.” Id.
In Finding of Fact No. 15, the trial court described its
findings derived from the testimony of Ms. Tulou as follows:
That as to [the daughter], Ms. Tulou was asked
to perform a Child Medical Examination on the
child. As a basis for completion of the Child
Medical Examination, Ms. Tulou took statements
from Ms. Hoadley, Mr. and Mrs. Lopez,
interviewed [the daughter], reviewed
parent/teacher evaluations, as well as
inventories regarding the child. There were
two visits with [the daughter] on January 8,
2001 and January 11, 2001. Ms. Tulou
indicated she inquired of [the daughter]
whether or not she knew why she was there.
[The daughter] indicated her mother could no
longer take care of them. [The daughter]
spoke of sexual experiences as well as sexual
behavior by men, those including [J.C. and
B.T.]. Furthermore, Ms. Tulou reviewed the
medical records of [the daughter]. Based on
all the information, Ms. Tulou was of the
opinion that [the daughter] was sexually
abused.
In our opinion, this finding of fact does not contain inadmissible
hearsay, but rather states the sources relied upon by Ms. Tulou in
forming her opinion as to the daughter's condition.
As to the testimony of Dr. Brown, we note that Finding of Fact
22 references the hearsay statement derived from Dr. Brown's
testimony:
22. That in discussing matters with [the
daughter], [the daughter] indicated to Dr.
Brown that she had witnessed her mother,
[J.F.], and [B.T.] engaged in sex. When askedhow she knew it was sex, she indicated they
had no clothes on. When asked if there was
any other inappropriate action, the daughter
indicated that [B.T.] had touched in her in
her privates which she defined as 'pinching.'
N.C. Gen. Stat. § 8C-1, Rule 803(4) Statements for Purposes of
Medical Diagnosis or Treatment states:
The following are not excluded by the
hearsay rule, even though the declarant
is available as a witness:
(4) 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.
Our Supreme Court in State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663
(2000), held that “hearsay evidence [was] admissible under Rule
803(4) only when two inquiries are satisfied. First, the trial
court must determine that the declarant intended to make the
statements at issue in order to obtain medical diagnosis or
treatment. The trial court may consider all objective
circumstances of record in determining whether the declarant
possessed the requisite intent. Second, the trial court must
determine that the declarant's statements were reasonably pertinent
to medical diagnosis or treatment.” Hinnant, 351 N.C. at 289, 523
S.E.2d at 670-71. “Some factors to consider in determining whether
a child had the requisite intent are whether an adult explained to
the child the need for treatment and the importance of
truthfulness; with whom and under what circumstances the declarant
was speaking; the setting of the interview; and the nature of thequestions.” State v. Bates, 140 N.C. App. 743, 745, 538 S.E.2d
597, 599 (2000).
In this case, the children were interviewed and evaluated at
the Graham Center Clinic on the second floor where there was a
waiting room, an interview room and an examination room. The
interview room was used for private conversations between doctors,
family members, social workers and patients. On 23 February 2001,
Dr. Brown examined [the daughter] who understood she was being seen
for medical purposes. Dr. Brown described their interaction as
follows: “When I explained that we would be talking and then I
would be doing a checkup and that I would be interested in finding
out about her and anything on her body or that--that might have a
problem, she began to point to areas on her body and [sic]
including her teeth as places that would need to check when I did
the checkup.” Thereafter, [the daughter] indicated she had been
touched by her mother's male friends, had witnessed adults having
sex and demonstrated what sex was with two anatomically correct
male and female dolls. Based upon this information, Dr. Brown
examined her teeth, checked her body for bruises and conducted a
genital exam. Under these circumstances, any hearsay statements by
Dr. Brown referencing the daughter's statements were admissible
under Rule 803(4).
Finally, after reviewing the record on appeal, we conclude
that respondent's remaining contentions are without merit.
Accordingly, we uphold the trial court's judgment.
Affirmed. Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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