{ "id": 5314144, "name": "STATE OF NORTH CAROLINA v. WILLIAM LESTER HOLDEN", "name_abbreviation": "State v. Holden", "decision_date": "1992-05-19", "docket_number": "No. 9129SC165", "first_page": "244", "last_page": "253", "citations": [ { "type": "official", "cite": "106 N.C. App. 244" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "31 ALR4th 120", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "396 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "no prejudice in admission of evidence already entered without objection in previous testimony" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526676 ], "year": 1990, "pin_cites": [ { "parenthetical": "no prejudice in admission of evidence already entered without objection in previous testimony" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0270-01" ] }, { "cite": "341 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "555", "parenthetical": "benefit of defendant's objection to introduction of letter lost when defendant later read from letter" } ], "opinion_index": 0 }, { "cite": "316 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697392 ], "year": 1986, "pin_cites": [ { "page": "362", "parenthetical": "benefit of defendant's objection to introduction of letter lost when defendant later read from letter" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0356-01" ] }, { "cite": "381 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "459", "parenthetical": "benefit of objection lost when same or similar evidence has been admitted or is later admitted without objection" } ], "opinion_index": 0 }, { "cite": "325 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491441 ], "year": 1989, "pin_cites": [ { "page": "196", "parenthetical": "benefit of objection lost when same or similar evidence has been admitted or is later admitted without objection" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0187-01" ] }, { "cite": "410 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "330 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508466 ], "year": 1991, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0273-01" ] }, { "cite": "365 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "566" } ], "opinion_index": 0 }, { "cite": "321 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569277 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0616-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "414 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 557", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524298 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0557-01" ] }, { "cite": "104 L.E.2d 1009", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "490 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605985, 605858, 606052, 605061, 605286, 605446, 604937, 604876, 605069, 605139, 605716, 605395, 605075, 604980, 605430, 605241 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1101-03", "/us/490/1101-05", "/us/490/1101-08", "/us/490/1101-12", "/us/490/1101-15", "/us/490/1101-14", "/us/490/1101-11", "/us/490/1101-13", "/us/490/1101-01", "/us/490/1101-09", "/us/490/1101-02", "/us/490/1101-10", "/us/490/1101-04", "/us/490/1101-07", "/us/490/1101-06", "/us/490/1101-16" ] }, { "cite": "374 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "255-56" }, { "page": "255" } ], "opinion_index": 0 }, { "cite": "323 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565899 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "516-17" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0508-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "844" }, { "page": "844-47" }, { "page": "844-45" }, { "page": "845" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "92" }, { "page": "92-96" }, { "page": "93-94" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "389 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308169, 5309842, 5308728, 5306427, 5306813 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0053-02", "/nc/326/0053-04", "/nc/326/0053-05", "/nc/326/0053-03", "/nc/326/0053-01" ] }, { "cite": "384 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520001 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0019-01" ] }, { "cite": "392 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "98 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525533 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/98/0658-01" ] }, { "cite": "348 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733537 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0370-01" ] }, { "cite": "414 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "105 N.C. App. 557", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524298 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/nc-app/105/0557-01" ] } ], "analysis": { "cardinality": 792, "char_count": 19377, "ocr_confidence": 0.753, "pagerank": { "raw": 2.9442489272657864e-07, "percentile": 0.8483513903706356 }, "sha256": "2d77539f1071a37e3f75b838e66a75335c99c2e5244eabb763627686798fe9ce", "simhash": "1:c63cc53a657e2cdf", "word_count": 3189 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK concurs.", "Judge WELLS concurring in the result." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM LESTER HOLDEN" ], "opinions": [ { "text": "JOHNSON, Judge.\nI.\nDefendant first contends that the trial court erred in excluding evidence of sexual abuse occurring prior to the incident for which defendant was on trial. Defendant contends that this evidence was admissible under G.S. \u00a7 8C-1, Rule 412(b) (1988), which states: \u201cNotwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior: ... (2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant^]\u201d\nDefendant presented the following evidence on voir dire. On 10 November 1986, two and a half years before the event at issue, the victim was returned to the defendant\u2019s house after staying with her mother as she normally did during the first 10 days of every month. Her grandmother, Minnie Holden, noticed dried blood on her panties. The next morning, Minnie took the victim to Dr. Volk, who examined her and noted swelling and an associated inflammation at the vaginal orifice but no bleeding. The blood, swelling and inflammation were consistent with sexual abuse but could have resulted from some trauma other than sexual abuse. Volk testified that the swelling could have been the result of a trauma occurring within the previous few days. Steven Lewis and Detective Smith testified that an investigation of the incident by the Department of Social Services and the sheriff\u2019s department included interviews with several family members but that a perpetrator could not be identified.\nDefendant contends that the excluded evidence points to someone other than the defendant as being the perpetrator of the abuse which occurred in June 1989 and thus should have been admitted under Rule 412(b)(2). We disagree.\nThe issue is whether the excluded testimony is relevant to show that someone other than the defendant sexually abused T.L. on 28 June 1989. We find that the evidence was properly excluded as being irrelevant and confusing to the jury.\nDefendant cites us to State v. Ollis, 318 N.C. 370, 348 S.E.2d 777 (1986), State v. Wright, 98 N.C. App. 658, 392 S.E.2d 125 (1990), and State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), disc, review denied, 326 N.C. 53, 389 S.E.2d 83 (1990). These cases do not help defendant. In all of them there is a temporal connection between the dates of the alleged offense and the evidence pointing to another perpetrator. Ollis, 318 N.C. 370, 348 S.E.2d 777 (evidence that another man abused victim during same time period as alleged against defendant held admissible to explain physical evidence); Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (evidence of abuse when victim was 4 is relevant because the victim alleged defendant had been molesting her since age 4); Wright, 98 N.C. App. 658, 392 S.E.2d 125 (evidence of masturbation occurring during same time period as alleged offense relevant to explain physical findings).\nIn the case sub judice, the abuse at issue occurred two and a half years before the incident resulting in the charge against defendant. Neither the indictment nor any evidence adduced at trial connects defendant with any incident occurring in 1986, therefore, any evidence that someone else may have abused T.L. in 1986 is irrelevant to show that defendant did not abuse her in 1989. This assignment is overruled.\nII.\nDefendant next contends that the trial court erred in denying his motion for a new trial. He alleges error in the exclusion of the Rule 412(b)(2) evidence which is the subject of his first argument. Having found that the exclusion of this evidence was not error, we find that the trial court did not err in denying defendant\u2019s motion for a new trial.\nDefendant also contends that the trial court erred in denying his motion without a hearing as required by G.S. \u00a7 15A-1420(c)(l) (1988). Under subsection (c)(3), \u201c[t]he court must determine the motion without a hearing when the motion and supporting and opposing information present only questions of law.\u201d G.S. \u00a7 15A-1420(c)(3). Here the only question to be decided by the trial court was whether it had properly excluded the Rule 412(b)(2) evidence, a question of law which defendant supported by supplying two cases to the trial judge for consideration. Because only a question of law was involved, a hearing was not required. G.S. \u00a7 15A-1420(c)(3). This assignment is overruled.\nIII.\nDefendant next contends that the trial court erred in admitting hearsay statements of the victim pursuant to the residual hearsay exception, G.S. \u00a7 8C-1, Rule 803(24) (1988). He contends that the trial court improperly found that the statements possessed \u201ccircumstantial guarantees of trustworthiness\u201d so as to satisfy due process requirements and the confrontation clause. We disagree.\nOn the first day of trial, the State served defendant with notice of its intention to offer statements of the victim by and through the testimony of Detective Smith and Judy Nebrig. The judge held an in camera examination of the child attended only by the judge, the child, the guardian ad litem and the court reporter. After the examination, the trial court placed in the record its conclusion that the victim was unavailable due to fear and trepidation in that she was \u201centirely incapable of going to the witness stand, taking the oath and relating the events in question.\u201d The trial court also found that the victim \u201cdid not seem to understand the consequences of not telling the truth.\u201d\nThe trial court then heard Smith, Nebrig and several other witnesses on voir dire, following which he held that the victim\u2019s hearsay statements to Smith and Nebrig were admissible under Evidence Rule 803(24). In his written order, Judge Owens made findings of fact and conclusions of law as required by State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). See also State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988), cert. denied, Deanes v. North Carolina, 490 U.S. 1101, 104 L.E.2d 1009 (1989). In his written order, Judge Owens made no mention of his previous statement in the record that T.L. \u201cdid not seem to understand the consequences of not telling the truth.\u201d\nWith regard to the trustworthiness factor, the trial court made the following findings of fact:\nthat the infant assuredly had personal knowledge of how and by whom she was being sexually abused, especially in light of the corroborating medical evidence. That the infant would have been motivated to deal truthfully with Officer Smith and Mrs. Nebrig as persons in authority. That the infant was specific as to the location where the alleged rape and sodomy took place. That the infant never recanted or substantially altered her statement. That, therefore, the totality of the circumstances in this case assure a high probability of the truthfulness of the statements made by the infant to Officer Smith and Mrs. Nebrig. . . . That the infant at all times identified her abuser as \u201cCricket.\u201d\nDefendant contends that the trial court erred in finding that the hearsay statements admitted through Detective Smith and Judy Nebrig possess sufficient indicia of reliability for admission under Rule 803(24). He points to the trial court\u2019s statement in the record that the victim \u201cdoes not seem to understand the consequences of not telling the truth.\u201d Defendant does not contest the trial court\u2019s finding that the child is unavailable.\nBefore hearsay statements may be admitted as substantive evidence under Rule 803(24), the trial judge must undertake a six part inquiry. Smith, 315 N.C. at 92, 337 S.E.2d at 844; Deanes, 323 N.C. 508, 374 S.E.2d 249. The trial judge must determine in the affirmative that (A) the proper notice has been given, (B) the hearsay is not specifically covered elsewhere, (C) the statement is trustworthy, (D) the statement is material, (E) the statement is more probative on the issue than any other evidence which the proponent can procure through reasonable efforts, and (F) the interests of justice will be best served by admission. Smith, 315 N.C. at 92-96, 337 S.E.2d at 844-47.\nWe need discuss only the trustworthiness factor.\nAlthough a hearsay statement is not specifically covered by any of the 23 \u201cpigeonhole\u201d exceptions, it may be admissible under the residual exception if it possesses \u201ccircumstantial guarantees of trustworthiness\u201d equivalent to those required for admission under the enumerated exceptions. This threshold determination has been called \u201cthe most significant requirement\u201d of admissibility under Rule 803(24). Courts and commentators have struggled with the meaning of this requirement, and certain factors are acquiring recognition as significant in guiding the trial judge\u2019s determination of the proffered statement\u2019s trustworthiness. Among these factors are (1) assurance of personal knowledge of the declarant of the underlying event; (2) the declarant\u2019s motivation to speak the truth or otherwise; (3) whether the declarant ever recanted the testimony; and (4) the practical availability of the declarant at trial for meaningful cross-examination[.] (Citations omitted.)\nSmith, 315 N.C. at 93-94, 337 S.E.2d at 844-45. As explained in Deanes, the first two factors, the assurance of personal knowledge and the declarant\u2019s motivation to speak the truth, bear upon the declarant at the time the hearsay statements are made. The second two factors, whether the declarant ever recanted the statement(s) and whether the declarant is available for cross-examination, go to the truthfulness of the statement, even though viewed in retrospect. Deanes, 323 N.C. at 516-17, 374 S.E.2d at 255-56.\nNone of these factors, alone or in combination, may conclusively establish or discount the statement\u2019s \u201ccircumstantial guarantees of trustworthiness.\u201d The trial judge should focus upon the factors that bear on the declarant at the time of making the out-of-court statement and should keep in mind that the peculiar factual context within which the statement was made will determine its trustworthiness.\nSmith, 315 N.C. at 94, 337 S.E.2d at 845. Thus, the emphasis in the analysis of the trustworthiness factor is on the circumstances surrounding the declarant at the time the statements were made, not the competency of the declarant at the time of trial. But see State v. Stutts, 105 N.C. App. 557, 414 S.E.2d 61 (1992).\nSpeaking of the standard of review on appeal, our Supreme Court has stated:\nThe trial court is required to make both findings of fact and conclusions of law on the issues of trustworthiness and probativeness, because they embody the two-prong constitutional test for the admission of hearsay under the confrontation clause, i.e., necessity and trustworthiness. On the other four issues, the trial court must make conclusions of law and give its analysis. We will find reversible error only if the findings are not supported by competent evidence, or if the law was erroneously applied. (Citations omitted.)\nDeanes, 323 N.C. at 515, 374 S.E.2d at 255.\nWe find no error in the admission of the victim\u2019s hearsay statements. The trial judge\u2019s findings of fact on the trustworthiness factor are supported by competent evidence. The trial judge\u2019s lone statement, found in the transcript of the in camera hearing, that the child \u201cdid not seem to understand the consequences of not telling the truth,\u201d standing alone and not made the basis for his finding that she was unavailable, is insufficient to overcome the other competent evidence which supports the admission of the hearsay statements under Rule 803(24). As explained in Smith and Deanes, the determination as to whether the hearsay statements are trustworthy must focus on the circumstantial guarantees of reliability which surround the declarant at the time the statement was made and not on the witness\u2019 competence at the time of the hearing.\nWe distinguish this case from Stutts, 105 N.C. App. 557, 414 S.E.2d 61. In Stutts, the trial court found that the child-witness was unavailable to testify because she could not understand the difference between truth and falsehood and because of her inability to understand what is reality and what is imagination. The trial court nevertheless found that her prior hearsay statements were admissible under Evidence Rule 804(b)(5). G.S. \u00a7 8C-1, Rule 804(b)(5) (1988). This Court found error, noting that the fourth \u201ctrustworthiness\u201d factor, common to both Rule 803(24) and Rule 804(b)(5), has been reworded to clarify its purpose in Rule 804(b)(5). Smith, 315 N.C. 76, 337 S.E.2d 833, (Rule 803(24)); State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986), (Rule 804(b)(5)); State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988). As applied to Rule 804(b)(5), the fourth factor now should be read as \u201cthe reason, within the meaning of Rule 804(a), for the declarant\u2019s unavailability.\u201d Nichols, 321 N.C. at 624, 365 S.E.2d at 566. Accord State v. Garner, 330 N.C. 273, 285, 410 S.E.2d 861, 867 (1991). The Stutts Court applied the fourth factor as reworded in Nichols, and held that finding a four year old witness unavailable because she could not tell truth from fantasy precluded her prior hearsay statements from possessing sufficient guarantees of trustworthiness to be admissible under Rule 804(b)(5).\nStutts does not require that we find error in the case before us. In the case sub judice, the trial court found the victim\u2019s hearsay statements admissible under Rule 803(24), not Rule 804(b)(5). The witness was found to be unavailable because of \u201cfear and trepidation\u201d and not because she could not distinguish truth from fantasy. The trial judge\u2019s statement in the voir dire transcript that the witness did not understand the consequences of not telling the truth, alone, is not sufficient to overcome the circumstantial indicia of reliability properly found by the trial judge in his order.\nWe also note that T.L.\u2019s hearsay statements naming \u201cCricket\u201d as her abuser were admitted without objection in the testimony of her mother and Dr. Wells. Thus, even assuming that their admission under Rule 803(24) was error, it was harmless error. State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (benefit of objection lost when same or similar evidence has been admitted or is later admitted without objection); State v. Moses, 316 N.C. 356, 362, 341 S.E.2d 551, 555 (1986) (benefit of defendant\u2019s objection to introduction of letter lost when defendant later read from letter); State v. Hyder, 100 N.C. App. 270, 396 S.E.2d 86 (1990) (no prejudice in admission of evidence already entered without objection in previous testimony).\nNo error.\nChief Judge HEDRICK concurs.\nJudge WELLS concurring in the result.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge WELLS\nconcurring in the result.\nOn the issue of trustworthiness, I find it difficult to distinguish this case from State v. Stutts, 105 N.C. App. 557, 414 S.E.2d 61 (1992). Because the defendant did not object to the testimony of the victim\u2019s mother and Dr. Wells, I concur in the result.", "type": "concurrence", "author": "Judge WELLS" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Ellen B. Scouten, for the State.", "V. Scott Peterson for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM LESTER HOLDEN\nNo. 9129SC165\n(Filed 19 May 1992)\n1. Evidence and Witnesses \u00a7 123 (NCI4th)\u2014 rape of child \u2014prior abuse of child by another \u2014 irrelevancy\nIn a prosecution for first degree rape of a child, evidence that someone else may have abused the child in 1986 was irrelevant and not admissible under N.C.G.S. \u00a7 8C-1, Rule 412(b)(2) to show that defendant did not abuse her in 1989.\nAm Jur 2d, Rape \u00a7 54.\n2. Criminal Law \u00a7 951 (NCI4th)\u2014 motion for new trial \u2014 question of law \u2014hearing not required\nThe trial court did not err in denying defendant\u2019s motion for a new trial without a hearing where only a question of law was presented as to whether the court had properly excluded certain evidence.\nAm Jur 2d, New Trial \u00a7 340.\n3. Evidence and Witnesses \u00a7 977 (NCI4th)\u2014 child\u2019s hearsay statements \u2014admission under residual exception \u2014circumstantial guarantees of trustworthiness\nA six-year-old rape victim\u2019s statements to an officer and a counselor naming \u201cCricket,\u201d the defendant, as her abuser possessed circumstantial guarantees of trustworthiness so as to support the trial court\u2019s admission of the statements under the Rule 803(24) residual exception to the hearsay rule where the trial court\u2019s findings on the trustworthiness factor were supported by competent evidence, and the witness was found to be unavailable because of \u201cfear and trepidation.\u201d The trial judge\u2019s statement in the transcript of the in camera hearing that the child \u201cdid not seem to understand the consequences of not telling the truth,\u201d standing alone and not made the basis for his finding that the child was unavailable, was insufficient to overcome the circumstantial indicia of reliability properly found by the trial judge in his order. Furthermore, any error in the admission of the victim\u2019s statements to the officer and counselor was rendered harmless when similar statements made by the victim to her mother and a pediatrician were admitted without objection. N.C.G.S. \u00a7 1A-1, Rule 803(24).\nAm Jur 2d, Rape \u00a7\u00a7 94, 95, 101.\nModern status of rule regarding necessity for corroboration of victim\u2019s testimony in prosecution for sexual offense. 31 ALR4th 120.\nJudge WELLS concurring in the result.\nAppeal by defendant from judgment entered 28 August 1990 by Judge Hollis M. Owens, J.r., in TRANSYLVANIA County Superior Court. Heard in the Court of Appeals 6 January 1992.\nDefendant is the grandfather of the victim. He was indicted on one count of first degree rape and one count of first degree sex offense and was convicted of first degree rape. Defendant appeals from the imposition of a life sentence.\nAt trial, the State\u2019s evidence tended to show the following. The six year old victim, whom we will call T.L., lived part of each month with her mother and the remainder of the month with her grandparents, Minnie Holden and the defendant, pursuant to a visitation order. In April 1989, Steve Lewis, a social worker with the Transylvania County Department of Social Services, investigated a report of possible physical abuse of the victim and as a result of his observations, referred her for a medical evaluation. Dr. Wells, a pediatrician, examined T.L. on 19 June 1989. His examination revealed abnormal findings in her vaginal and rectal areas consistent with sexual abuse. T.L. would not tell Dr. Wells who was responsible for the injuries. Dr. Wells saw T.L. again on 27 July 1989, during which visit she whispered to her mother that \u201cCricket\u201d had hurt her. \u201cCricket\u201d is \u201cpapaw,\u201d the defendant.\nT.L. was interviewed by Detective Rita Smith of the Transylvania County Sheriff\u2019s Department and by Judy Nebrig, a counselor at Trend Community Mental Health Services, both of whom testified at trial as to what T.L. told them \u201cCricket\u201d had done to her.\nSteve Lewis testified that T.L. exhibited the \u201cclassic behavior\u201d of a sexually abused child. Judy Nebrig testified that T.L. exhibited evidence of sexual abuse.\nSix family members and two Head Start workers testified for defendant at trial. Their testimony was to the effect that they suspected and saw evidence that T.L. was being physically abused by her mother and stepfather. Defendant testified that he had never hurt T.L. and that he felt that T.L.\u2019s mother, Donna, and Donna\u2019s mother had plotted against him.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Ellen B. Scouten, for the State.\nV. Scott Peterson for defendant-appellant." }, "file_name": "0244-01", "first_page_order": 274, "last_page_order": 283 }