Appeal by Defendant from conviction entered 6 November 2003 by
Judge David Lee in Superior Court, Davie County. Heard in the
Court of Appeals 8 March 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Belinda A. Smith, for the State.
Harvey A. Carpenter IV, for the defendant-appellant.
WYNN, Judge.
Hearsay statements are admissible under Evidence Code Rule
803(4) if made for purposes of medical diagnosis or treatment and
reasonably pertinent to diagnosis or treatment.
N.C. Gen. Stat. §
8C-1, Rule 803(4)
(2003).
Defendant Travis Lee Cooley, convicted
of first-degree statutory sexual offense,
contends in this appeal,
inter alia, that the trial court erred by
allowing into evidence
hearsay testimony under Rule 803(4).
Because the record shows that
the statements were made for and were reasonably related to medical
diagnosis or treatment, we uphold the admission of this evidence.
The record reflects that in April 2002, the child victim,
M.C., lived with her mother, Wendy Hooper, and spent Wednesday,Saturday, and part of Sunday with her father, Defendant, in his
home. At that time, she was three-and-a-half years old. On 3
April 2002, M.C. spent the night with Defendant. The next day Ms.
Hooper picked M.C. up from preschool, and that evening M.C. told
her mother about pain she was experiencing in her bottom. The next
morning, 5 April 2002, M.C. complained again of the pain and said
she needed some medicine. Ms. Hooper looked at M.C.'s vaginal and
rectal area, saw that the vaginal area was red, and applied
Nystatin cream.
While Ms. Hooper applied the cream to her daughter, she had a
conversation about inappropriate touching that her pediatrician had
encouraged her to have with her children. Ms. Hooper asked M.C. if
anyone had ever touched her in her vaginal area. In response, M.C.
said her daddy had. Ms. Hooper asked M.C. if Defendant had touched
her like she was, that is, putting medicine on her or washing her
in the bath tub. M.C. said, “Yes, he's done that, too, but Mommy,
he put his nasty finger in me.” Ms. Hooper understood the
reference to mean either the finger that Defendant had injured a
few months earlier in a work accident or Defendant's dirty
fingernails. M.C. told her mother that Defendant had hurt her and
she did not want him to do so anymore. Ms. Hooper asked M.C. if
anyone else had touched her, and M.C. replied that only her father
had.
Later that morning, Ms. Hooper took M.C. to see Dr. Paula
Franklin, a pediatrician. Out of M.C.'s presence, Ms. Hooper told
Dr. Franklin what had happened. Dr. Franklin then asked M.C. whathappened, and M.C. stated that her father had touched her with his
fingers in her bottom. M.C. then pointed to her vaginal area. Dr.
Franklin examined M.C.'s vaginal area and noted that the hymen was
intact with no scarring or notching. However, the vaginal opening
was about one centimeter, the upper limit of normal. Dr.
Franklin's opinion was that what she observed of M.C.'S vagina and
what she was told about the alleged molestation by Defendant were
consistent in that penetration with a finger would not damage the
hymen. Dr. Franklin testified that she was suspicious that some
abuse actually occurred because the three-and-a-half-year-old child
described an event with such sexual context.
Dr. Rosalina Conroy, a pediatrician with the Northeast Medical
Center's Child Advocacy Center, who was qualified at trial as an
expert in pediatrics and the evaluation and treatment of abused
children, examined M.C. on 19 April 2002.
M.C. told Dr. Conroy
that Defendant touched her bottom and that it hurt. M.C. pointed
to her genitals to indicate the place that hurt. Dr. Conroy found
no physical evidence of abuse, though explained that that was not
indicative of no abuse having occurred, given that children heal
very quickly.
Defendant
testified on his own behalf and denied the
allegations against him. However, on 6 November 2003, a jury found
him guilty of first-degree statutory sexual offense resulting in a
sentence of 173 to 217 months imprisonment. Defendant appealed to
this Court.
On appeal, Defendant argues that the trial court erred by
allowing into evidence hearsay testimony that failed to meet the
requirements for the medical diagnosis/treatment exception.
(See footnote 1)
Specifically, the trial court admitted under the medical diagnosis/
treatment
exception (as well as the excited utterance exception)
M.C.'s statements to Ms. Hooper that her bottom hurt, that her
bottom continued to hurt and she needed medicine on it, and that
her father touched her private area.
Hearsay statements are admissible under the medical
diagnosis/treatment exception where the statements were “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.”
N.C. Gen. Stat. § 8C-1, Rule 803(4) (2003);
State v. Hinnant, 351
N.C. 277, 284, 523 S.E.2d 663, 667 (2000) (“Rule 803(4) requires a
two-part inquiry: (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.” (citations omitted)). As our Supreme Court noted in
Smith, under the
medical treatment exception, “[s]tatements to
hospital attendants, ambulance drivers, or
even members of the family might be included.”
N.C.G.S. § 8C-1, Rule 803(4) commentary
(1992). The Court emphasized that statements
made by a young child to a family member may
be admissible under this exception even where
the child did not specifically request medical
attention because “young children cannot
independently seek out medical attention, but
must rely on their caretakers to do so.”
Smith, 315 N.C. at 84, 337 S.E.2d at 840. The
key factor in determining the admissibility of
such statements is whether the statements
resulted in the child receiving medical
treatment and/or diagnosis.
See id. at 84-85,
337 S.E.2d at 840;
Jones, 89 N.C. App. at
590-91, 367 S.E.2d at 143-44;
Lucas, 94 N.C.
App. at 446, 380 S.E.2d at 566.
State v. Rogers, 109 N.C. App. 491, 502-03, 428 S.E.2d 220, 227
(1993). Moreover, our Supreme Court has held that “[i]n the
context of child sexual abuse or child rape, a victim's statements
. . . as to an assailant's identity are pertinent to diagnosis and
treatment[,]” not least because the child's custody arrangements
may need to be modified.
State v. Bullock, 320 N.C. 780, 782-83,
360 S.E.2d 689, 690 (1987) (citing
State v. Aguallo, 318 N.C. 590,
597, 350 S.E.2d 76, 80 (1986)).
Here, M.C., a three-and-a-half-year-old at the time of the
alleged abuse, complained to Ms. Hooper, her mother, about pain she
was experiencing in her bottom. After M.C. again complained of
pain and said she needed medicine, Ms. Hooper looked at M.C.'s
vaginal and rectal area, saw that her vaginal area was red, and
applied Nystatin cream. While Ms. Hooper applied the cream to her
daughter, she had a conversation about inappropriate touching.
M.C. then told Ms. Hooper that Defendant, M.C.'s father and withwhom M.C. stayed approximately three days per week, had put his
finger into her vaginal area and hurt her. Later that same
morning, Ms. Hooper brought M.C. to see Dr. Franklin, a
pediatrician, for treatment and/or diagnosis. Given this evidence,
we hold that the trial court did not err in finding that the
medical diagnosis exception to the hearsay rule applied in this
case.
Defendant also argues that the trial court erred in allowing
into evidence Hooper's testimony about M.C.'s statements because it
failed to meet the requirements for the excited utterance
exception.
Hearsay is admissible under the excited utterance exception
where it is “[a] statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.” N.C. Gen. Stat. §
8C-1, Rule 803(2) (2003).
Here, even assuming for the sake of argument that the trial
court erred in finding that Ms. Hooper's testimony as to M.C.'s
statements regarding the alleged abuse and the pain M.C.
experienced as a consequence thereof fell under the excited
utterance exception, we must conclude that any such error was
harmless. The trial court admitted Ms. Hooper's testimony as to
M.C.'s statements under two hearsay exceptions, the medical
diagnosis/treatment exception and the excited utterance exception.
Because the statements were properly admissible under the medical
diagnosis/treatment exception, any error related to the admissionof the statements as excited utterances would have been harmless.
Finally, Defendant argues that the trial court erred by
denying his motion to dismiss for lack of sufficient evidence.
When reviewing a motion to dismiss, we view “the evidence in
the light most favorable to the State, giving the State the benefit
of all reasonable inferences.”
State v. Morgan, _ N.C. _, _, 604
S.E.2d 886
, 904 (2004) (citing
State v. Gladden, 315 N.C. 398, 430,
340 S.E.2d 673, 693,
cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166
(1986)). If we find that “substantial evidence exists to support
each essential element of the crime charged and that defendant was
the perpetrator, it is proper for the trial court to [have denied]
the motion.”
Id. (citing
State v. Malloy, 309 N.C. 176, 178, 305
S.E.2d 718, 720 (1983)). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984) (citing
State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164,
169 (1980)).
Under North Carolina General Statutes section 14-27.4, “[a]
person is guilty of a sexual offense in the first degree if the
person engages in a sexual act [ w]ith a victim who is a child
under the age of 13 years and the defendant is at least 12 years
old and is at least four years older than the victim . . ..” N.C.
Gen. Stat. § 14-27.4 (2003). “Sexual act” includes “the
penetration, however slight, by any object into the genital or anal
opening of another person's body . . ..” N.C. Gen. Stat. § 14-27.1
(2003). Here
,
Defendant does not dispute that he is more than four
years older than M.C. or that M.C. is under the age of thirteen.
The only element that Defendant contests is the occurrence of a
sexual act. Defendant contends that “the evidence introduced at
trial does not lead a reasonable mind to believe that there was
penetration into any opening of the child by defendant.” Viewing
the evidence in the light most favorable to the State, giving the
State the benefit of all reasonable inferences
, we disagree.
The State proffered evidence of penetration in the form of
M.C.'s statements to Ms. Hooper that Defendant “put his nasty
finger in me.” The statement was corroborated by M.C.'s statements
to Dr. Franklin, whom M.C. told that “her dad touched her with his
fingers in her bottom, and her bottom was the vaginal area.” The
statement was further corroborated by Dr. Conroy, who testified
that M.C. indicated that she was touched in her vaginal area
without underwear and that the touching hurt, and who also
testified that touching the hymen, which was still intact in M.C.'s
vagina, would hurt. Because there was evidence sufficient that a
reasonable jury could conclude that penetration occurred, we hold
that the trial court did not err in denying Defendant's motion to
dismiss.
For the foregoing reasons, we find no error and affirm
Defendant's conviction.
No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
Footnote: 1