STATE OF NORTH CAROLINA
v
.
Hyde County
No. 03 CRS 50058
DONALD ALISON BLOUNT, JR.,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Celia Grasty Lata, for the State.
Nora Henry Hargrove, for defendant-appellant.
STEELMAN, Judge.
S.F. (victim or child) was three years old when her mother
(mother) began living with defendant (who is not the child's
father). Defendant and mother smoked marijuana and used cocaine on
a regular basis. In November of 2002 they were living with
defendant's mother because neither of them were employed.
Defendant and mother shared a bed, and the victim slept in a
child's bed in the same room.
One evening, about the sixteenth of November, 2002, defendant
and mother went to bed after using marijuana and cocaine. The
victim was already asleep in her bed. At trial, mother testified
that she awoke to see defendant standing at the foot of the
victim's bed. She saw defendant remove the victim's clothes,remove his clothes, apply lotion to her and himself, and briefly
insert his penis into the child's vagina. Defendant left the room,
returned, re-dressed and returned to bed. Mother went back to
sleep without saying anything, because she feared defendant.
The victim eventually told what had happened to her to four
different people. The victim moved in with her maternal
grandmother (grandmother), because her mother and defendant had no
stable housing. Grandmother testified that though the victim had
been a happy-go-lucky child before, when she came to live with her
after 16 November 2002 she clung to the grandmother and did not eat
or sleep well. The victim complained of pain in her vaginal area,
which was red, and stated she was having difficulty urinating.
In December of 2002, grandmother took the child to a
pediatrician, who informed grandmother that the child had
gonorrhea. Grandmother did not know who had given the victim
gonorrhea, but on 25 January 2003 the child told her that she had
a secret. She climbed onto grandmother's lap, crying, and told her
that her mother had held her down while defendant inserted a “black
needle with white medicine” into her vagina. The victim then
stated that her mother and defendant took her into the bathroom and
cleaned her up, that her vagina hurt and bled a little, and that
they told her what had happened was a big secret and that she would
have her toys taken away and be punished if she told anyone.
A friend (Lisa) was living with grandmother on 25 January 2003
when the victim told grandmother what had happened to her, and sheheard the conversation. Her account of what the victim said that
night was consistent with that of the grandmother.
Wendy Meadows (Meadows) was a counselor working for Kids First
child advocacy center in December 2002 when the victim was referred
to her by Department of Social Services. She testified that the
victim told her in their second session: “They gave me candy and
told me not to tell.” In their third session, the victim told
Meadows that, while holding her legs, defendant put a black needle
with white medicine in her vagina, while her mother held her down
by the neck. Meadows had two sets of anatomical dolls, one a white
family and one a black family. Meadows asked the victim to show
her what had happened using the dolls. The victim chose a girl
doll and laid it on the table, saying the doll was lying on a bed,
she then chose an adult female doll, indicated that it was her
mother, and used the hands of that doll to press down on the neck
of the girl doll. She then chose a black doll, and indicated it
was defendant. She first had the male doll touch the girl doll in
the area of its vagina, then she told Meadows that defendant put a
needle in her. When asked to show how defendant did this, the
child “took the black adult male doll and laid it on top of the
girl doll that was lying on the table.” Finally, the victim told
Meadows that “it hurt, and I cried.”
The victim was referred to another counselor, Kelly Roberts
(Roberts). According to Roberts' testimony, on their sixth
session, the victim told Roberts the same story she had told the
other women: her mother held her down by the neck and arms, whiledefendant first touched her vagina then inserted a black needle
with white medicine into her. After her first revelation to
Roberts, the victim repeatedly said, “[Mother] and [defendant] hurt
me.” The victim repeated this story multiple times in following
sessions, and her story remained consistent. The victim also drew
pictures depicting the events she had described.
The State called the victim at trial, but the child was unable
to respond in any meaningful manner to questions posed to her. The
trial court determined that she was unavailable as a witness, and
defendant does not contest this ruling.
Dare County Department of Social Services became involved in
the matter in December of 2002, after it was informed that the
child had gonorrhea. Department of Social Services arranged for
both defendant and mother to be tested for gonorrhea, but neither
kept the appointments. Mother was never tested for gonorrhea.
Pursuant to a court order, defendant was tested on 15 March 2004
(approximately sixteen months after the event in question), and the
results were negative for gonorrhea. Dr. Lisa M. Johnson testified
that if a person had been successfully treated for gonorrhea, any
later test would be negative.
Defendant was charged with first-degree rape of a child,
first-degree sex offense, and taking indecent liberties with a
child. He was tried before a jury commencing 21 June 2004, and was
found guilty on all charges on 23 June 2004. Defendant was
sentenced to a presumptive range active sentence of 336 to 413
months imprisonment. From this judgment defendant appeals. In defendant's first argument, he contends the trial court
committed prejudicial error by admitting hearsay statements of the
victim. We disagree.
Defendant objected on the grounds of hearsay to the testimony
of four witnesses who related the victim's statements: the victim's
grandmother; the grandmothers's friend, Lisa; and the two
counselors, Meadows and Roberts.
First, defendant argues that hearsay statements of the victim,
as testified to by grandmother and Lisa, were improperly admitted
because they lacked the “guarantees of reliability or
trustworthiness” required by Rule 804(b)(5) of the North Carolina
Rules of Evidence. “To be admissible [under Rule 804(b)(5)], the
trial court must determine that the declarant is unavailable, and
the statement must meet a six-step analysis:” State v. Isenberg,
148 N.C. App. 29, 35, 557 S.E.2d 568, 572-73 (2001).
(1) Whether the proponent of the hearsay
provided proper notice to the adverse party of
his intent to offer it and of its particulars;
(2) That the statement is not covered by any
of the exceptions listed in Rule 804(b)(1)-
(4); (3) That the statement possesses
“equivalent circumstantial guarantees of
trustworthiness”; (4) That the proffered
statement is offered as evidence of a material
fact; (5) Whether the hearsay is “more
probative on the point for which it is offered
than any other evidence which the proponent
can produce through reasonable means”; and (6)
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.”
Id. Defendant does not contest the trial courts finding that the
victim was unavailable for Rule 804(b)(5) purposes. Defendantlimits his argument on appeal to his contention that the statements
lacked “equivalent circumstantial guarantees of trustworthiness.”
In order to make a showing of the requisite trustworthiness, there
must be: “(1) assurances of the declarant's personal knowledge of
the underlying events, (2) the declarant's motivation to speak the
truth or otherwise, (3) whether the declarant has ever recanted the
statement, and (4) the practical availability of the declarant at
trial for meaningful cross-examination.” Id. at 36, 557 S.E.2d at
573.
The record in the instant case reveals that the victim was
personally present at the events she described to her grandmother
and Lisa; there is no evidence suggesting any motive for the victim
to falsify her statements; there is no evidence that the victim
ever recanted her statements; and it is apparent from her inability
to testify at trial that the victim was unavailable for meaningful
cross-examination. These facts are sufficient to establish the
necessary “equivalent circumstantial guarantees of
trustworthiness.” Id.
Defendant further argues that the trial court violated his
right to confrontation as guaranteed by the Sixth Amendment to the
United States Constitution by improperly considering extraneous
evidence in making a determination of trustworthiness. Idaho v.
Wright, 497 U.S. 805, 822, 111 L. Ed. 2d 638, 657 (1990). At
trial, the trial court stated that it considered the fact that the
victim contracted gonorrhea, and also considered the partially
corroborative testimony of the victim's mother, in making itsdetermination that the victim's hearsay testimony to grandmother
and Lisa was trustworthy.
Because defendant did not raise this constitutional argument
at trial, he now contends that the error amounts to plain error.
The plain error rule applies only in truly
exceptional cases. Before deciding that an
error by the trial court amounts to “plain
error,” the appellate court must be convinced
that absent the error the jury probably would
have reached a different verdict. In other
words, the appellate court must determine that
the error in question “tilted the scales” and
caused the jury to reach its verdict
convicting the defendant.
State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 60-61 (2000).
Having determined that adequate evidence of the
trustworthiness of the victim's hearsay statements to grandmother
and Lisa was presented at trial, we further hold that any error in
considering the statement of the victim's mother, or the victim's
gonorrhea, does not rise to the level of plain error. See State v.
Tyler, 346 N.C. 187, 202-03, 485 S.E.2d 599, 607 (1997) (where
hearsay statement was properly admitted under Rule 804(b)(5), fact
that trial court also considered improper corroborating evidence in
making its determination held harmless beyond a reasonable doubt).
Defendant next argues that the trial court erred in admitting
the victim's hearsay statements to Meadows and Roberts because
their admission violated his Sixth Amendment right to confrontation
as recently addressed in Crawford v. Washington, 541 U.S. 36, 158
L. Ed. 2d 177 (2004). “The Confrontation Clause of the Sixth
Amendment to the United States Constitution provides that 'in all
criminal prosecutions, the accused shall enjoy the right . . . tobe confronted with the witnesses against him.' This constitutional
guarantee applies to both federal and state prosecutions.” State v.
Sutton, __ N.C. App. __, __, 609 S.E.2d 270, 274 (2005) (citations
omitted). “Following Crawford, the determinative question with
respect to confrontation analysis is whether the challenged hearsay
statement is testimonial.” State v. Lewis, __ N.C. __, __, __
S.E.2d __, __, 2005 N.C. LEXIS 1000, 27 (7 October 2005). “The
United States Supreme Court determined in Crawford that 'at a
minimum' the term testimonial applies to 'prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and
to police interrogations.'” Id. at 29-30.
Our Supreme Court has also recognized in Crawford an
additional prong necessary to show that a statement is testimonial.
This “additional prong of the analysis for determining whether a
statement is 'testimonial' is, considering the surrounding
circumstances, whether a reasonable person in the declarant's
position would know or should have known his or her statements
would be used at a subsequent trial. This determination is to be
measured by an objective, not subjective, standard.” Id. at 42.
In the instant case, defendant argues that the victim's
statements to the counselors were testimonial, because they were de
facto police interrogations. We do not reach this argument. We
hold, considering the surrounding circumstances, that a reasonable
child in the victim's position would have no reason to know or
believe her statements would be used in a subsequent trial. The victim was referred to Meadows, then a counselor at a
private, non-profit child counseling center, by Department of
Social Services social worker Angela Beasley. Meadows testified
that in her sessions the child is never encouraged to disclose
abuse, but is given the opportunity to do so in an environment
where she feels secure enough to speak freely. Meadows testified
that not all children disclose any abuse. There is no evidence in
the record that Meadows ever discussed the potential for any
criminal consequences for defendant. There is no evidence that
Meadows ever discussed with the victim any potential punishment for
the defendant.
Roberts is a therapist in Dare County. The victim was
referred to Roberts for follow up counseling after her sessions
with Meadows, and at the time of trial had participated in
approximately forty sessions with Roberts. Roberts testified that
she assured the victim that their conversations were confidential,
and that Roberts could not disclose their conversations to anyone.
There is no evidence in the record that the victim was made aware
in any way that her statements could be used against defendant for
prosecution, or that Roberts ever discussed any potential
consequences to defendant. In fact, review of the entire record
reveals no evidence that the victim was ever made to understand by
anyone that defendant could face criminal trial and punishment as
a result of what he had done to her.
The victim was three or four years old when she made her first
statements to Meadows and Roberts implicating defendant (the recorddoes not include the child's date of birth, but she was five at the
time of the trial, and first spoke with Meadows and Roberts some
fourteen months previously). It is “highly implausible” that a
three or four year old would have reason to know, nor even
understand, that her statements might be used in a later trial. See
State v. Brigman, __ N.C. App. __, __, 615 S.E.2d 21, 25-26 (2005).
In light of the fact that the young victim in the instant case was
speaking with therapists, not police officers, and that the record
is devoid of any evidence that she had the slightest inkling that
defendant faced criminal charges, or even that she understood what
criminal charges were, we hold that her statements to Meadows and
Roberts were not testimonial for Confrontation Clause purposes.
See Id. A reasonable three or four year old in the victim's
situation would not have had any reason to know that her statements
would be used at a subsequent trial. This argument is without
merit.
In defendant's second argument, he contends that he is
entitled to a new trial because of two alleged “outbursts” by the
trial court that he asserts “denigrated counsel and deprived the
defendant of his right to trial before a fair and impartial
tribunal.” We have thoroughly reviewed the record and find this
argument to be completely without merit.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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