NO. COA06-1658
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.
I
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.
II
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