An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-778

NORTH CAROLINA COURT OF APPEALS

Filed: 19 April 2005

STATE OF NORTH CAROLINA

v .                         Davie County
                            No. 02 CRS 50450
TRAVIS LEE COOLEY,                    
    
    Defendant.

    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.

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    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
    The State argued that Defendant had failed to preserve his first two arguments, relating to Ms. Hooper's testimony, for review due to his stipulation during voir dire. We disagree. While Defendant stipulated to M.C.'s incompetence to testify at trial, he did not stipulate as to the admissibility of Ms. Hooper's statements as medical diagnosis/treatment and excited utterance hearsay exceptions. Indeed, Defendant objected at length during voir dire regarding the inapplicability of the medical diagnosis/treatment and excited utterance exceptions to Ms. Hooper's testimony.

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