An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1452


Filed: 3 January 2006

In the Matter of:                 Durham County
                            No. 03-J-264             

     Appeal by the juvenile from an adjudication of delinquency entered 5 May 2004 by Judge Richard G. Chaney and a final juvenile delinquency disposition and order signed 13 July 2004 by Judge Elaine M. O'Neal in Durham County Juvenile Court. Heard in the Court of Appeals 15 June 2005.
    Attorney General Roy Cooper, by Assistant Attorney General Barry Bloch, for the State.     

    Brannon Strickland, PLLC, by Anthony M. Brannon for the juvenile-appellant.

    BRYANT, Judge.

    A.L.   (See footnote 1)  (the juvenile) appeals from an adjudication of delinquency entered 5 May 2004 and a final juvenile delinquency disposition and order signed 13 July 2004 placing him in Level I supervised probation for a period of one year .
    On 14 January 2004, A.L. was charged as a juvenile with having committed assault by pointing a gun, a violation of N.C. Gen. Stat. § 14-34, a misdemeanor, Class A1. The charge was set forth in ajuvenile petition for misdemeanor assault and filed on 23 January 2004. On 5 May 2004, the juvenile's case was heard in Durham County Juvenile Court, before the Honorable Richard G. Chaney.
    The State's evidence tended to show: Officer Daniel Gomez, of the Durham Police Department, testified that on the evening of 7 January 2004, he was dispatched to respond to a call reporting property damage. Mr. Sanchez met Officer Gomez at the scene and was asked what happened. According to Officer Gomez, Mr. Sanchez reported he heard a loud bang coming from outside the apartment and saw four males standing in the street throwing rocks at the apartment window. When he yelled at them to stop, one of the males pulled out what appeared to be a gun and said, “What you want?” Mr. Sanchez said that he got scared and went back inside the house. The four males walked away. Officer Gomez testified Mr. Sanchez told him one of the males was wearing an orange shirt or jacket. After getting a description of the males, Officer Gomez went to look for them. When he saw four males running on foot, one who was wearing an orange jacket, he pursued them and caught A.L. While searching the juvenile, Officer Gomez found a toy gun in his pocket.
    A.L. testified that on the evening of 7 January 2004, he had a toy gun and was with three boys. Another boy also had a toy gun and yet another boy threw rocks at Mr. Sanchez's window. Accordingto A.L., when Mr. Sanchez came out of the apartment, another boy in the group pulled out his toy gun and said, “What then?” A.L. stated he ran when he saw Officer Gomez because he “didn't want to get caught for something that [he] didn't do.” A.L. also stated Officer Gomez drove him back to the apartment where Mr. Sanchez identified him. A.L. denied having pulled out his toy gun while outside Mr. Sanchez's house. At the close of the State's evidence, A.L. moved to dismiss, arguing the evidence was insufficient to establish that A.L. had been the individual who pointed a gun at Mr. Sanchez. The trial court denied the motion, found the juvenile guilty of assault by pointing a gun and adjudicated him delinquent.
    On 13 July 2004, A.L. appeared for disposition before Judge Elaine M. O'Neal. The juvenile was placed in Level I supervised probation for a period of one year, conditioned upon his attendance at school, passing his classes, compliance with laws and curfews, submission to substance abuse monitoring and treatment, and other conditions. The juvenile appeals.
    A.L. raises two issues on appeal: whether the trial court erred in (I) admitting Officer Gomez's testimony regarding the victim's assault and (II) denying the juvenile's motion to dismiss the assault by pointing a gun charge based on insufficient evidence.     The juvenile argues the trial court erred inadmitting Officer Gomez's testimony regarding the assault of Mr. Sanchez because it was inadmissible hearsay. He also claims Mr. Sanchez's identification of defendant was “unreliable, not within a proper exception, and unfairly prejudicial.” We determine Officer Gomez's testimony regarding the assault of Sanchez was properly admitted. However, because the identification testimony was unfairly prejudicial, we reverse and remand this case back to the juvenile court.
    In a juvenile adjudicatory hearing, the respondent is entitled to have the evidence evaluated by the same standards as apply in criminal proceedings against adults. In re Meaut, 51 N.C. App. 153, 275 S.E.2d 200 (1981); In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904 (1985). “The Sixth Amendment's Confrontation Clause bars the use of a testimonial statement made by a witness who does not appear at a criminal trial, unless the witness is unavailable to testify at trial and was subject to cross-examination at the time the statement was made.” State v. Forrest, 164 N.C. App. 272, 278 , 596 S.E.2d 22, 26 (2004) (quotation omitted). The trial court must first determine whether the offered hearsay is testimonial in nature, and then decide whether it contains “particularized guarantees of trustworthiness.” Forrest at 280 , 596 S.E.2d at 27 (holding Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) did not apply to a spontaneous statement made to police bya woman who contacted the police and “immediately abruptly started talking” before being questioned by the police).
     Our Supreme Court determined in State v. Lewis:
        Police who respond to emergency calls for help and ask preliminary questions to ascertain whether the victim, other civilians, or the police themselves are in danger are not obtaining information for the purpose of making a case against a suspect. [Statements made as a result of these questions are] not made in anticipation of eventual prosecution, but [are] made to assist in securing the scene and apprehending the suspect. . . . [Such statements] are not testimonial because they are not, by their very nature, considered structured police questioning.

Lewis, 360 N.C. 1, 19, 619 S.E.2d 830, 842 (2005) (citations omitted). “[A] line [characterizing statements as testimonial] is crossed when police questioning shifts from mere preliminary fact-gathering to eliciting statements for use at a subsequent trial.” Id. at 20, 619 S.E.2d at 842.
    In the instant case, Officer Gomez responded to a call to the police regarding property damage. Upon arrival, he noted the victim, Mr. Sanchez, was upset and excited. Officer Gomez asked “What happened?” and the victim immediately responded and explained to the officer what happened, noting that only about five minutes had passed since the incident. Officer Gomez then left in pursuit of the four black males described by the victim.     Considering the circumstances of this case, we hold that the victim's response to Officer Gomez's question “What happened?” was non-testimonial. Mr. Sanchez's statement to Officer Gomez was a part of the criminal incident, not a part of the prosecution. See Forrest at 279, 596 S.E.2d at 27 (A call to the police is non- testimonial and, therefore, statements made immediately upon arrival at the crime scene are non-testimonial. “[A] 911 call can usually be seen as part of the criminal incident itself, rather than as part of the prosecution that follows.”); but compare State v. Allen, ___ N.C. App. ___, 614 S.E.2d 361 (2005) (where an officer took witnesses ' statements twenty minutes after shootings -- statements were held to be testimonial under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004) as they were not given during the criminal incident itself, but rather with the officer's anticipation toward trial ). Further, we find the non- testimonial statement in the case sub judice was properly admitted as an excited utterance exception to the hearsay rule pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(2) .
    However, based on our Supreme Court's recent holding in State v. Lewis, Mr. Sanchez's show-up identification of defendant as the perpetrator was testimonial and not subject to any hearsay exception. Lewis, 360 N.C. 1, 619 S.E.2d 830 (2005). In Lewis the identification of the defendant by the victim was held to betestimonial as part of police procedure where the identification took place while the victim was in the hospital, yet in a calm state of mind.
    In the instant case Officer Gomez testified that of the four males he observed running, he only apprehended defendant and found a toy gun in defendant's possession. Officer Gomez then returned to Mr. Sanchez's apartment, with defendant handcuffed and in the backseat of the police cruiser . Officer Gomez asked Mr. Sanchez whether defendant was the individual who had pointed the gun, and Mr. Sanchez affirmatively identified defendant. Mr. Sanchez's show-up identification of defendant was not “a spontaneous utterance” but was made in response to structured police questioning. Therefore, Officer Gomez's testimony is hearsay which does not fall within an exception and should have been excluded. “Unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.” Lewis at 12 , 619 S.E.2d at 837. The present case is unlike State v. Lewis , where the victim's identification of the defendant from a photo lineup at the hospital was held to be harmless error in light of other overwhelming evidence of the defendant's guilt, and also unlike State v. Morgan,where “[the witness'] statement to [law enforcement, while] testimonial in nature because it was 'knowingly given in response to structured police questioning, '” was nevertheless harmless error in light of other evidence of defendant's guilt. See State v. Morgan, 359 N.C. 131, 155-56, 604 S.E.2d 886, 901 (2004) . Here, on this record, we can find no reliable evidence of the juvenile's identification other than that offered through Officer Gomez. Therefore , the trial court's admission of Officer Gomez's testimony of the show-up identification by the victim is prejudicial error.
    Because we find the admission of Officer Gomez's identification testimony to be hearsay and unfairly prejudicial, we decline to address the juvenile's second argument. We reverse and remand the trial court's judgment.     
    Reversed and remanded.
    Judges MCCULLOUGH and TYSON concur.
    Report per Rule 30(e).

Footnote: 1
    Initials used to protect the identity of the juvenile.

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