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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1658


Filed: 2 October 2007


     v.                            Caldwell County
                                No. 02 CRS 3663

    Appeal by defendant from judgment entered 6 April 2006 by Judge Yvonne Mims Evans in Caldwell County Superior Court. Heard in the Court of Appeals 24 September 2007.

    Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State.

    Thorsen Law Office, by Haakon Thorsen, for defendant.

    BRYANT, Judge.

    Mark Allen Morgan (defendant) was indicted on three counts of first degree statutory sexual offense, three counts of sexual activity by a substitute parent and four counts of taking indecent liberties with a child. The trial court dismissed all the charges except one of the indecent liberties charges at the close of the State's evidence. The jury convicted defendant of the remaining indecent liberties charge, and the trial court sentenced defendant to an active term of fifteen to nineteen months imprisonment. Defendant appeals.
    The State filed a motion for joinder of the ten charges prior to trial; the motion was heard at trial prior to the presentation of evidence. The indictments state the offenses occurred between February 2001 and January 2002. Each indictment gives the date ofthe offense as occurring “on or about” a one-month time period, and the offense is listed as it is described in the statute without further description or allegation. Only one indictment gives a specific date of 23 January 2002; this is the charge for which defendant was convicted.
    The State's evidence tends to show: during the time period in question, defendant's household consisted of himself, his wife M.M.   (See footnote 1)  , their seven-year-old daughter K.M. and M.M.'s ten-year old daughter C.L. On 25 January 2002 the Caldwell County Department of Social Services (“DSS”) interviewed C.L. regarding allegations of abuse by defendant after C.L. told a friend at school that her stepfather was touching her inappropriately. C.L. and K.M. were removed from the home that day and placed in foster care. C.L. testified she told her social worker defendant would touch, squeeze, and rub her vaginal area and her breasts. She also testified he kissed her on the neck and lips and that he exposed his genitals to her on one occasion. C.L. remembered two specific instances when defendant touched her inappropriately, but she was unable to say how old she was, when the incident occurred, what season of year it was, or whether it was during the day or at nighttime. She testified that he touched her “maybe once or twice a week.” She did not remember how old she was when the touching began happening, nor did she remember telling her school friend about defendant. A doctor and a social worker corroborated thetestimony by recalling that C.L. told each of them defendant inappropriately touched her. The social worker stated C.L. told her it last happened two days before DSS came to interview her.
    At the close of the State's evidence, defendant moved to dismiss all the charges for insufficient evidence. The trial court granted the motion as to nine of the ten charges; leaving in place the tenth charge alleging indecent liberties occurring on 23 January 2002. Defendant presented evidence in his defense that he never inappropriately touched C.L. and that on 23 January 2002 he had a migraine headache which prevented him from attending church or doing much of anything else, and he did not touch C.L. on that day.


    On appeal, defendant argues the trial court erred by: (I) allowing the State's motion for joinder because the charges were not specific enough to determine if a transactional connection existed between all of the offenses and (II) allowing hearsay evidence to be admitted pursuant to the catchall residual hearsay exception in N.C. Gen. Stat. § 8C-1, Rule 803 (24) (2005). For the reasons stated herein, we find no error.

    Joinder is governed by section 15A-926 of the North Carolina General Statutes. That section provides: “Two or more offenses may be joined . . . for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together orconstituting parts of a single scheme or plan.” N.C. Gen. Stat. § 15A-926(a) (2005). The decision whether to grant or deny a motion for joinder is within the sound discretion of the trial court. State v. Miller, 61 N.C. App. 1, 4-5, 300 S.E.2d 431, 435 (1983) (citations omitted). The determination of whether a group of offenses are transactionally related is a question of law reviewable on appeal. State v. Williams, 74 N.C. App. 695, 329 S.E.2d 705 (1985). The test is whether the offenses were so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial to the defendant. State v. Fultz, 92 N.C. App. 80, 83, 373 S.E.2d 445, 447 (1988). Absent a showing that the defendant has been deprived of a fair trial, the trial court's ruling will be upheld on appeal. Miller, 61 N.C. App. at 4-5, 300 S.E.2d at 435 (citations omitted). If a serious question of prejudice arises, an appellate court must determine whether the case meets the statutory criteria. State v. Wilson, 57 N.C. App. 444, 448, 291 S.E.2d 830, 832, disc. review denied, 306 N.C. 563, 294 S.E.2d 375 (1982). Cases should not be consolidated if the defendant is deprived of his ability to present his defense. Id. at 448, 291 S.E.2d at 832-33 (citations omitted).
    “Public policy strongly favors consolidation because it expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once.” State v. Jenkins,83 N.C. App. 616, 617-18, 351 S.E.2d 299, 301 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987). “This last factor is especially compelling when the trials involve young children testifying about sexual abuse.” Id. at 618, 351 S.E.2d at 301.
    Defendant argues the charges were so vague the trial court could not have determined there was a transactional connection between them. He contends he was prejudiced by the joinder because the jury felt it had to convict him of something, and since nine of the ten charges were dropped after the close of the State's evidence, the jury chose its only remaining option and convicted defendant of the one indecent liberties charge.
    We are unable to say the trial court abused its discretion by allowing the joinder of the ten offenses for one trial. A transactional connection between the offenses is supported by the fact the alleged offenses: (1) involved sexual abuse, (2) were committed against one victim, defendant's stepdaughter, (3) all occurred in the family home, (4) and occurred within a one-year period. Appellate courts have found a transactional connection in cases involving sexual abuse of children where the offenses occurred over many months. State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988) (no error where two alleged offenses of sexual abuse occurred a week apart against the same victim); State v. Bruce, 90 N.C. App. 547, 552, 369 S.E.2d 95, 99, disc. review denied, 323 N.C. 367, 373 S.E.2d 549 (1988) (consolidation proper where four sexual offenses occurred in same location with same victim six months apart); State v. Street, 45 N.C. App. 1, 6, 262S.E.2d 365, 368, cert. denied, 301 N.C. 104, 273 S.E.2d 311 (1980) (consolidation of multiple sexual offenses proper where offenses involved two different children over five months). In light of our case law precedent finding consolidation of multiple sexual offenses proper, the public policy favoring consolidation in cases involving young victims of sexual abuse, and our determination that a transactional connection between the offenses existed, we find the trial court did not abuse its discretion in allowing the State's motion for joinder.

    Defendant also assigns error to the trial court's decision to allow the State's witness to testify to statements made to her by C.L. under the residual hearsay exception. Admissibility of testimony is governed by the North Carolina Rules of Evidence. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801 (2005). Hearsay is inadmissible unless the trial court determines the statements fall within one of the exceptions listed in Rules 803 or 804. N.C. Gen. Stat. § 8C-1, Rule 802 (2005). Two different residual hearsay exceptions exist, one which requires the declarant to be unavailable, N.C. Gen. Stat. § 8C-1, Rule 804(b)(5) (2005), and one which does not, N.C. Gen. Stat. § 8C-1, Rule 803(24) (2005). Otherwise the requirements for meeting both these exceptions are identical. State v. Castor, 150 N.C. App. 17, 25-26, 562 S.E.2d 574, 580 (2002), cert. denied, 357N.C. 508, 587 S.E.2d 885 (2003). Both require “equivalent circumstantial guarantees of trustworthiness.” We note the trial court specifically found C.L. was an available witness; therefore, the relevant rule is 803(24) and not Rule 804(b)(5).
    The analysis for determining if the catchall exception applies includes the following inquiries as to whether: (1) proper notice was given by the State of its intention to offer hearsay evidence; (2) no other hearsay exceptions apply; (3) the hearsay possesses certain “circumstantial guarantees of trustworthiness”; (4) the evidence is material to the case at bar; (5) the evidence is more probative on an issue than any other evidence procurable through reasonable efforts; and (6) admission of the evidence will best serve the interests of justice. State v. Agubata, 92 N.C. App. 651, 656, 375 S.E.2d 702, 705 (1989). Guarantees of trustworthiness are indicated by the following factors: (a) assurance of personal knowledge of the declarant of the underlying event; (b) the declarant's motivation to speak the truth; (c) whether the declarant ever recanted the statement; and (d) the reasons for the declarant's unavailability. Id. at 658, 375 S.E.2d at 706. Even if a trial court fails to make the necessary findings, an appellate court may review the record to make its own determination regarding whether the “equivalent circumstantial guarantees of trustworthiness” exist. State v. Valentine, 357 N.C. 512, 518-19, 591 S.E.2d 846, 853 (2003).
    At trial the State called witness Dr. DeVries, who related the results of a medical exam performed on C.L. in February 2002 andher observations stemming from that exam. Defendant then objected to the introduction of testimony of hearsay statements made by C.L. to Dr. DeVries at the beginning of the medical exam. The trial court ruled the hearsay did not meet the criteria for the medical diagnosis hearsay exception in Rule 803. The State then requested admission of the testimony pursuant to the residual hearsay exception. The State noted it had given defendant written notice prior to trial of its intent to use this statement under the residual hearsay exception. The trial court analyzed the evidence for trustworthiness as follows:
            The first test is whether or not the statement of [C.L.] was trustworthy. And there are four things to consider with respect to that.    
            One of [the steps] is the assurance of personal knowledge. She, of course, is the only person who would have personal knowledge of it other than the defendant. And I think that the Court can determine that that would make her statement trustworthy, or at least that I could consider that her statement is trustworthy.
            The Court has heard nothing up to this point which would suggest that I should not believe that she wanted to speak the truth. She seems to be a competent witness in the sense that she can remember certain things, but there are other things she cannot remember. She has a detailed memory. She has been available for cross-examination.
            The third issue and the fourth issues were [whether] or not she has recanted. I don't know that she has ever recanted her statement.
            And the fourth is that she is unavailable. I cannot make that determination, clearly she is available.
            So, based on everything that has been presented this morning the Court finds that her statement to the doctor would be trustworthy. The next two issues that have to be considered is whether or not this out ofcourt statement is more probative than anything else the State can provide. At this point I think it probably is the only probative evidence that the State can provide.
            And finally the Court has to determine whether the interest of justice will be served. And I think they will be.
            So, for those reasons the doctor will be permitted to testify about the conversation that she had with the child at the time that she started her examination.

    Defendant concedes the trial court made findings as to trustworthiness, probativeness, and interests of justice. However, defendant maintains the trial court's findings were insufficient and cites to State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, 490 U.S. 1101, 104 L. Ed. 2d 1009 (1989), which reiterates the test outlined above for allowing hearsay under the catchall exception. We find the trial court's findings adequately support its decision to allow Dr. DeVries' testimony of C.L.'s hearsay statements. The trial court properly analyzed the trustworthiness of the statements using the requisite four criteria, and found the evidence to be probative and that its introduction would serve the interests of justice. The transcript also shows and defendant does not dispute, that the State properly noticed defendant of its intent to introduce the statement. The remaining two criteria, that no other hearsay exception applies, and that the evidence is material, are implicated by the trial court's analysis. We are unable to say the trial court failed to make the necessary findings. Therefore, this assignment of error is overruled.
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    Initials are used throughout the opinion to protect the identity of the juveniles.

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