An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-896


Filed: 20 September 2005


v .                         McDowell County
                            Nos. 01 CRS 52387
PAUL WILLIAM PAINTER, SR.,            01 CRS 52389
        Defendant.                02 CRS 2020
                                03 CRS 1091
                                03 CRS 1092

    Appeal by defendant from judgments dated 10 November 2003 by Judge E. Penn Dameron in McDowell County Superior Court. Heard in the Court of Appeals 9 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General E. Clementine Peterson, for the State.

    Leslie C. Rawls for defendant.

    BRYANT, Judge.
    Paul William Painter, Sr. (defendant), appeals judgments dated 10 November 2003, entered consistent with jury verdicts finding him guilty of two counts of first-degree sexual offense and three counts of indecent liberties with a child.

    The male victims in this case are brothers - A.M.   (See footnote 1)  (age 6), and C.M. (age 3). Starting in 2000, and including the fall of 2001, the boys visited with their father every other weekend. Their father was then living with his mother (the boy's paternalgrandmother) and defendant. Defendant is married to the children's paternal grandmother; the children call him “pawpaw.”
    Initial allegations of abuse in this case were made by B.M. (age 7), the female cousin of A.M. and C.M. who also spent the night at the defendant's home. B.M. told her mother that defendant had touched her private parts and her mother reported the allegations to the Burke County Department of Social Services (DSS). Burke County DSS faxed a report concerning the allegations and possible connection to A.M. and C.M. to Mitchell County DSS which was received by Samantha Phipps, a social worker.
    Phipps testified that on 8 November 2001, she went to A.M.'s school where she met with A.M. Later that day, Phipps talked with A.M.'s mother. Phipps, credentialed in North Carolina regarding sexual abuse cases, was accepted by the court as an expert in social work. At the time of trial she had been involved in 120 to 140 sexual abuse investigations. After spending time getting acquainted with A.M., Phipps read to A.M. a booklet called My Body Belongs to Me which is used in sexual abuse cases involving young children who may or may not have sexual knowledge. Phipps asked A.M. if any secret touching had happened to him. A.M., who was “very somber and thoughtful,” said “yes.” Pulling at his crotch area, A.M. told her that pawpaw “made me touch my private part,” and that “I didn't like it.”
    When asked to tell what happened, “A.M. touched his crotch area and said, pawpaw touched me right here” and said pawpaw made him touch papaw's private part and his own private part. A.M. saidthat it happened only on Fridays, every Friday when he was visiting at his grandparents' house, and that when it first occurred they were in the computer room. A.M. described pawpaw's penis, and demonstrated jerking motions used on the penis and said that white stuff came out. Defendant told A.M. not to tell because it's a secret.
    A.M. told Phipps that pawpaw had done the same thing to C.M.,
with pawpaw on top of C.M., and that A.M. tried to stop pawpaw. “I tried to pull pawpaw off of C.M. but pawpaw is heavy,” A.M. said. A.M. told Phipps that pawpaw “was doing the same to me. He was up and down, up and down, up and down. C.M. was crying, he keep [sic] a doing it.” A.M. told Phipps that pawpaw liked kissing mouth to mouth and wanted him do it with his “wormy.” Sometimes A.M. did not want to do it, but pawpaw made him. Also, “C.M. had to do that too and that he didn't like it either.”
    A.M. described another act, “like you're doing something to girls,” and pointed to his bottom. A.M. said that his pawpaw did that to C.M. too, using “his wormy thing,” pointing to his crotch, and demonstrated by doing a humping motion, and said “he goes up and down like this, up and down, over and over,” and that “[a]t first he keeps it [his private part] staying in and I don't like it and it comes out. I didn't like it and it hurts really bad.”
    When asked how many times it was done in his back side, A.M. said, “I don't know, one hundred times? I don't know” and that “[a]fter we finish the up and down thing, he does it. His head goes up and down on our wormies like this.” According to Phipps,while A.M. was making the above statement, A.M. “demonstrated with his head moving up and down with his mouth puckered.” A.M. also told her that “[m]y mouth on his wormy feels gross. Sometimes when he does it to me, I can't hold my wormy and I let it go, the yellow stuff comes out of my wormy.” Phipps testified that six-year-old children generally do not lie about sexual abuse.
    Carolyn Ray Cort, a medical doctor and expert in pediatrics with experience and training with sexually abused children, performed medical examinations on A.M. and C.M. on 9 November 2001. Before the exam, she explained to A.M. and C.M. why they were there, and asked them questions to obtain a patient history important for medical treatment. She asked A.M. if anyone had touched his private parts, and he answered that his pawpaw does. He nodded yes when asked if his pawpaw hurt him. Pointing to his anus, A.M. told the doctor that his pawpaw used his “wormy,” to hurt him. A.M. also told Dr. Cort that white stuff comes out of the wormy when defendant shakes it, and that these things happened “[a] long, long time ago and last weekend,” at “the Ford place   (See footnote 2)  , Nolan's office, the computer room” at his grandparents' and “the bedroom when his grandmother was not there.” His pawpaw told him not to tell and kept telling him not to tell. A.M. told Dr. Cort that his pawpaw did the same things to C.M.
    Although, the physical exams of C.M. and A.M. were normal, Dr. Cort concluded that A.M. had been sexually abused, and that it was probable that C.M. also had been sexually abused. The doctortestified that anal penetration of a child can heal very quickly, within three days depending on the type of penetration and on the circumference of the object that penetrates. According to the doctor, “[a] normal exam does not mean that penetration did not occur.”
    Defendant's wife testified that on a visit to her husband, who had been hospitalized for a seizure and later committed to Broughton Hospital, “[h]e told me that part of it was true, that he had molested A.M.” While at the hospital, defendant asked to speak with Detective Carpenter. Defendant was read his Miranda rights which he signed. According to Detective Carpenter:
        After I advised him of his rights and he signed a waiver of those rights, [defendant] stated he was guilty of the allegations being made against him by his step-[grand]children. [Defendant] indicated that the molestation of [A.M.] and [C.M.] had been going on for approximately six months to a year. [Defendant] stated this began just wrestling with the boys and at some point he began getting sexually aroused. [Defendant] said shortly after that one thing led to another especially with [A.M.] He stated that he did not have any sexual contact with [B.M.], but did state that he was sure there were incidents with the children that he does not remember. [Defendant] stated he does not think he ever penetrated [A.M.], because he would ejaculate before it got to that point. But he did state that he probably penetrated him digitally. [Defendant] stated that he had fondled [C.M.] also, but does not think he digitally penetrated him. [Defendant] stated that these incidents usually occurred on Friday nights when the children came for their weekend visit with their father . . . . He stated that they usually occurred in the computer room where the boys sleep on the futon.

Procedural History
    Defendant was indicted for two counts of first-degree sexual offense against A.M. (01 CRS 52387; 02 CRS 02020); and three counts of indecent liberties with a child against A.M., B.M. and C.M. (01 CRS 1091, 01 CRS 52839, and 01 CRS 1092, respectively). These matters came for jury trial at the 27 October 2003 criminal session of McDowell County Superior Court with the Honorable E. Penn Dameron presiding. Defendant was found guilty as charged. The trial court found defendant had no prior record points, and the aggravating factors outweighed the mitigating factors on all counts. Defendant was sentenced to 300-369 months imprisonment (first-degree sex offense); 300-369 months imprisonment (first- degree sex offense); 20-24 months imprisonment (indecent liberties with a child); 20-24 months imprisonment (indecent liberties with a child); 20-24 months imprisonment (indecent liberties with a child). All sentences were to run consecutively.
    Defendant gave notice of appeal in open court.

    The issues on appeal are whether the trial court erred by: (I) denying defendant's motion to strike the testimony of A.M.; (II) overruling the defendant's objections to testimony of Samantha Phipps and Dr. Carolyn Cort with regard to statements allegedly made by A.M., because the statements were not corroborative and amounted to testimonial hearsay; and (III) sentencing defendant in the aggravated range, as the facts used to enhance the sentence beyond the maximum range were neither admitted by defendant nor found by the jury.
    Defendant first argues the trial court erred when it denied defendant's motion to strike the testimony of A.M. because the testimony showed that the child was not competent to testify and his lack of responsiveness to cross-examination attempts deprived the defendant of the right to confront and cross-examine the witnesses against him in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
    Rule 104(a) of the North Carolina Rules of Evidence provides that questions concerning the qualification of a person to be a witness shall be determined by the court. N.C. Gen. Stat. § 8C-1, Rule 104(a) (2003). Determining competency of a witness is within the trial court's discretion. In re Will of Leonard, 82 N.C. App. 646, 649, 347 S.E.2d 478, 480 (1986); see also N.C. Gen. Stat. § 8C-1, Rule 601 (“Every person is competent to be a witness except as otherwise provided in [the North Carolina Rules of Evidence].”). Further, the competency of a witness is determined at the time the witness is called upon to testify. Leonard, 82 N.C. App. at 649, 347 S.E.2d at 480.
    Defendant moved to strike A.M.'s testimony on the ground that A.M. was not competent to testify, because he appeared to be forgetful or hesitant to respond to defense counsel's questioning.
Following a voir dire examination of A.M., the trial court ruled that A.M. was competent to testify. In making that ruling, the trial court stated:
        The [c]ourt would find pursuant to Rule 601, Rules of Evidence, based on the Court'sobservation of [A.M.] and [A.M.'s] responses to the questions, not only what is said but in the way that he said it, the [c]ourt finds that [A.M.] is capable of expressing himself so that he can be understood. I further find that [A.M.] is capable of understanding the duty to tell the truth as a witness pursuant to Rule 601. I find him to be competent to testify at trial.

    At trial, A.M. testified he and his brother spent the night with their pawpaw and grandmother; that A.M. and C.M. slept in the computer room, and pawpaw was there. Using a male anatomical doll, with its pants pulled down, A.M. identified the front as “private” and the back as “behind.” A.M. testified that pawpaw touched A.M.'s behind, stuck his finger in A.M.'s behind, and had A.M. to put his mouth on pawpaw's private. Also, more than once, pawpaw put his mouth to A.M.'s private part and put his private part in A.M.'s behind. A.M. also saw pawpaw put his private in C.M.'s mouth more than once, and A.M. saw C.M. stuck underneath pawpaw and crying. Pawpaw told A.M. to keep what he had done a secret
    Defendant asserts that during cross-examination A.M. was unable to identify pawpaw. When asked the question “Who's pawpaw?,” A.M. responded, “I can't remember.” Defense counsel also asked A.M. to tell “one last time” what pawpaw did to him. A.M. replied “I forget.” However, when asked whether he remembered what pawpaw did to him, A.M. responded “Yes” and when A.M. was asked why he did not love his pawpaw anymore, his response was: “[b]ecause he done [sic] something real bad to me.”
    The trial court, in denying defendant's motion to strike A.M.'s testimony, noted the following:        [B]oth at voir dire and during the testimony of [A.M.] the [c]ourt had the opportunity to observe him, both his demeanor and his manner in responding to questions. And I would note that although he appeared to be reluctant to respond to questions, particularly on, for one example but not intending to be exhaustive, I think he was, asked what if any nickname he might have for private parts. And he appeared at that time to the [c]ourt to understand the question but really to be in some genuine embarrassment and unwilling to discuss it at that time.
            Both because of the youth of the witness, who the [c]ourt finds to be eight years old and in the second grade, and the sensitive nature of the subject matter and his response to it, the [c]ourt found that it would be appropriate to allow both the State and the defendant to ask leading questions of the defendant. And I did permit both the State -- certainly the State was given more leeway than would have been allowed with an adult witness. However, I think the same leeway was given to the defendant in terms of asking leading questions.
            And I will note that although [A.M.] responded certainly more emphatically and more directly to leading questions, which again, I think is not unexpected from an eight year old witness, I will note that on occasion he was unable to respond to leading questions. And the [c]ourt would find that on those occasions typically A.M. indicated that either he didn't remember or did not know the answer to those questions . . . .
            . . . [A]nd that it would be the [c]ourt's evaluation of that testimony that he was responding truthfully and was doing the best that he could.
            However, the ultimate issue and the ultimate judge of the weight to be given the evidence in my view and in my discretion would be the jury.

    Based on the foregoing, we conclude the trial court properly exercised its discretion and did not err in denying defendant's motion to strike A.M.'s testimony. This assignment of error is overruled.
    Defendant next argues the trial court erred by overruling defendant's objections to testimony of social worker, Samantha Phipps, and treating physician, Dr. Carolyn Cort, with regard to statements allegedly made by A.M., because the statements were not corroborative and amounted to testimonial hearsay. Defendant further argues admission of the testimony based upon the trial court's determination of trustworthiness deprived defendant of his constitutional rights to due process of law and to confront and cross-examine the witnesses against him in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
    Defendant argues A.M.'s statements to Phipps and Dr. Cort were “testimonial” statements which, under the United States Supreme Court's ruling in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), should be disallowed because A.M.'s “lack of responsiveness during cross-examination rendered him unavailable” and thereby “deprived Defendant of the opportunity to cross-examine the child.” Defendant's argument, however, is inappropriate as A.M. testified at trial and defendant had ample opportunity to cross-examine him. When the declarant appears for cross- examination at trial, the Confrontation Clause places no constraints on the use of his prior testimonial statements, and the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9.    The testimony of Phipps and Dr. Cort also corroborated A.M.'s trial testimony. Our Supreme Court has defined corroborate as “to strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.” State v. Higginbottom, 312 N.C. 760, 769, 324 S.E.2d 834, 840 (1985) (quotation marks and citation omitted); see also State v. Aguallo, 322 N.C. 818, 825, 370 S.E.2d 676, 679 (1988) (concluding testimony was corroborative if it tended to add weight or credibility to earlier testimony of witness); State v. Riddle, 316 N.C. 152, 159-60, 340 S.E.2d 75, 79 (1986) (holding the trial court did not err in admitting testimony of protective services worker as corroborating evidence of testimony of victim). Pursuant to Rule 613 of the North Carolina Rules of Evidence, prior consistent statements by a witness are admissible to corroborate sworn trial testimony. See State v. Gell, 351 N.C. 192, 204, 524 S.E.2d 332, 340 (2000). “[P]rior consistent statements are admissible even though they contain new or additional information so long as the narration of events is substantially similar to the witness' in-court testimony.” State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992). A trial court has “wide latitude in deciding when a prior consistent statement can be admitted for corroborative, non[-]hearsay purposes.” State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998).
    Here, the trial court determined Phipps' testimony should be allowed because her testimony “is generally within the bounds of what would be admissible as corroboration.” Following a voir direof Phipps, the trial court made the following comments:
        I would find that prior to talking to [A.M.], the witness identified herself, showed her badge, and was interviewing him privately in the teacher's lounge, and under circumstances which indicated he was telling the truth. And I would find that the statements as made to her are trustworthy. I would find that those proposed statements are material to these matters that we're trying now, that also the statements are more probative on the issues of whether these offenses were committed or not, that any other evidence which the proponent makes, that is the State, may be able to procure through reasonable efforts, and that the interest of justice will be served by their admission. For all those reasons I would find that the proposed testimony is admissible.

    Dr. Cort was accepted as an expert in pediatrics, with experience and training with sexually abused children. Before doing a medical exam of A.M. and C.M., Dr. Cort asked them questions to obtain a patient history important for medical treatment. Dr. Cort's testimony regarding hearsay statements made to her by A.M. was allowed into evidence by the trial court, pursuant to Rule of Evidence 803(4) which allows the admission of hearsay statements made for the purposes of medical diagnosis and treatment. N.C. Gen. Stat. § 8C-1, Rule 804(3) (2003). Additionally, with regard to the use of expert testimony to corroborate the testimony of A.M., the trial court charged the jury as follows:
        Expert opinion testimony that one exhibits symptoms that are consistent with sexual abuse may be considered by you only if you find that it does corroborate such victim's testimony at this trial. That is, if you believe this opinion testimony tends to support the testimony of [A.M.], the testimony is admittedsolely for the purpose of corroboration as I have explained that term, and not as substantive evidence.

    The evidence defendant challenges was allowed by the trial court for purposes other than for the truth of the matter asserted. Furthermore, A.M., Phipps, and Dr. Court all testified at trial and were available for cross-examination. Such testimony was not in violation of the Confrontation Clause. The trial court did not err in allowing into evidence the statements made by A.M. to Phipps and Dr. Cort. This assignment of error is overruled.
    Defendant lastly argues the trial court erred when it sentenced defendant in the aggravated range, because the facts used to enhance the sentence beyond the maximum range were neither admitted by defendant nor found by a jury, thereby violating his right to trial by jury under the United States Constitution.
    In the instant case, the trial court found a factor in aggravation (“defendant took advantage of a position of trust or confidence to commit the offense”), without stipulation or admission by defendant, or without being reflected in the jury's verdict, and sentenced defendant in the aggravated range. Pursuant to this Court's mandate in State v. Allen, 166 N.C. App. 139, 147- 48, 601 S.E.2d 299, 305-06 (2004), aff'd in part and modified in part, 359 N.C. 425, 615 S.E.2d 256 (2005), citing Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), this case is remanded for resentencing.
    No error at trial; remanded for resentencing.    Judges McGEE and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
    Initials have been used throughout to protect the identity of the juveniles.
Footnote: 2
    Defendant was a car salesman.

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