{ "id": 8522033, "name": "STATE OF NORTH CAROLINA v. NICKY JAY HAMMOND, Defendant", "name_abbreviation": "State v. Hammond", "decision_date": "1993-11-02", "docket_number": "No. 9226SC524", "first_page": "454", "last_page": "462", "citations": [ { "type": "official", "cite": "112 N.C. App. 454" } ], "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": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "309 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760895 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0742-01" ] }, { "cite": "378 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 552", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528254 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0552-01" ] }, { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "296 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560679 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0087-01" ] }, { "cite": "278 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "203", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "303 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572694 ], "year": 1981, "pin_cites": [ { "page": "240", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0235-01" ] } ], "analysis": { "cardinality": 776, "char_count": 17414, "ocr_confidence": 0.772, "pagerank": { "raw": 2.587167448673442e-07, "percentile": 0.8177507646198678 }, "sha256": "0a1a920f0c2ff13f67a59879c555ea6faf9cc50fc4f97d855ad288fd02bb1f3b", "simhash": "1:7e18a74a60f212ce", "word_count": 2834 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and McCRODDEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. NICKY JAY HAMMOND, Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nDefendant Nicky Jay Hammond was indicted on 31 December 1990 for attempted first degree rape, first degree sexual offense, and taking indecent liberties with a child. The State filed a motion for joinder of these three offenses on 16 December 1991, which was granted. State\u2019s evidence tended to show the following: The minor child who is the subject of the charges against defendant lived with her mother, Felicia Sims, her younger brother and her father, defendant. The minor child first talked about this sexual abuse which was performed by the defendant while she was riding in a car with her aunt (her mother\u2019s half sister), Angela Mosier, on 5 October 1990. The minor child and her aunt were driving to pick up the minor child\u2019s mother from work. Mosier testified the minor child told her that defendant touched her private parts, and that defendant \u201cwould stick his thing in her butt, and . . . would use Vaseline\u201d on both of them.\nIn response to these statements, Mosier and the minor child\u2019s mother went home and called the police. After they and the minor child were interviewed by the police, they took the minor child to the hospital to be examined.\nDr. Gary M. Howchins examined the minor child at the hospital. As a result of this examination, Dr. Howchins found no evidence of any general abuse, or forcible entry of the rectum, or tears or bleeding of the minor child\u2019s rectal or vaginal area. Dr. Howchins noted the vaginal lips were open, and that ordinarily in a young child, these lips stayed closed.\nThe minor child testified at trial that defendant would wait until everyone was asleep, then wake her and make her engage in sexual acts with him. She said defendant touched her on \u201c[t]he back and front ... of [her] private parts\u201d and \u201c[her] mouth.\u201d She was given anatomical drawings of a female child and a male adult to illustrate her testimony. She identified the appropriate areas on the drawings as private parts, and noted that defendant would stick his private part in her mouth and \u201cmake me suck the pee. Sometimes I get choke [sic].\u201d The sexual acts were alleged to have taken place over a ten month period from January 1990 to September 1990.\nLinda Ellis, a counselor who performs investigations for the Victim Assistance Rape Crisis Program, testified about her interactions with the minor child from 22 October 1990 to 30 April 1991. At one session, Ms. Ellis asked the minor child to draw and then explain a picture of what defendant had done to her. The minor child drew a picture of herself, crying, on top of the defendant, who was smiling because he \u201cgets to do what he wants.\u201d\nPatricia Mauney, a therapist for the Mecklenburg County Center for Mental Health, testified the minor child was involved in individual and group therapy with four to five other children ranging in age from six to eleven. Ms. Mauney\u2019s evaluation was that the minor child had a tendency to engage in sexual play with other children and had an age-inappropriate knowledge of sexual behavior. Ms. Mauney also testified the minor child exhibited low self esteem, anger, tearfulness, shame and hiding, depression, nightmares-, and had delayed reporting the child abuse. In her expert opinion, Ms. Mauney testified all of these symptoms taken together suggested a very high probability that the minor child had been sexually abused.\nPatricia Lampkin, the minor child\u2019s foster mother, testified about an incident she observed involving the minor child and her younger brother. Ms. Lampkin saw the younger brother on top of the minor child in a bedroom one afternoon; both children had their pants down, and their private parts were touching. Ms. Lampkin testified she asked the minor child why she was doing that, and that she said she was doing it because that is what her daddy did to her.\nAngela Mosier testified that she and the minor child\u2019s mother took the minor child to the hospital on 5 October 1990 to have her examined. Ms. Mosier, on cross-examination, acknowledged she did not like defendant, and that she had tried on more than one occasion to get her half sister to separate from defendant.\nThe State also presented testimony from Felicia Sims, the minor child\u2019s mother; Anne Dodd from Mecklenburg County Youth and Family Services; and Jean Hall, a protective service investigator for the Department of Social Services.\nDefendant testified on his own behalf, and denied these charges which were filed against him. Defendant further testified that he and Angela Mosier did not get along; that he and Felicia Sims had dated for almost ten years and had three children, one of whom was the minor child; that during the time he lived with Felicia Sims, the minor child came into their bedroom and observed him having sexual intercourse with Felicia Sims; and that the minor child had been exposed to male sexual organs because she had observed the boys next door urinating in the front yard. Defendant admitted to being convicted of assault on an officer on 23 June 1991. On cross-examination, defendant also acknowledged a similar conviction on 23 February 1988, a 1988 charge for obstructing an officer, and various other charges occurring from 1988 to 1991.\nMimi 0. Whitler testified for defendant. Ms. Whitler testified that she babysat the minor child for defendant and Felicia Sims and that on one occasion, she entered a bedroom and observed the minor child on the bed on top of a little boy. Defendant\u2019s mother, brother, sister, and a neighbor, Shirley Robinson, also testified on his behalf.\nDefendant was found guilty of first degree sexual offense and of taking indecent liberties with a child. From these judgments, defendant appealed to our Court.\nDefendant first argues the trial court abused its discretion by allowing the charges against defendant to be joined for trial. Defendant asserts that because the State could not identify the specific dates of the charges, the State could not join these charges as being closely connected in time, place and occasion.\nNorth Carolina General Statutes \u00a7 15A-926(a) (1988) states in pertinent part: \u201cJoinder of Offenses. \u2014Two or more offenses may be joined in one pleading or 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 or constituting parts of a single scheme or plan.\u201d Our Supreme Court has held:\n[I]n deciding whether two or more offenses should be joined for trial, the trial court must determine whether the offenses are \u2018so separate in time and place and so distinct in circumstances as to render the consolidation unjust and prejudicial to defendant.\u2019 (Citation omitted.) Thus, there must be some type of \u2018transactional connection\u2019 between the offenses before they may be consolidated for trial. (Citation omitted.) In addition, the trial judge\u2019s exercise of discretion in consolidating charges will not be disturbed on appeal absent a showing that the defendant has been denied a fair trial by the order of consolidation. (Citations omitted.)\nState v. Oxendine, 303 N.C. 235, 240, 278 S.E.2d 200, 203 (1981) (emphasis in original). The circumstances of the particular case must be considered in determining whether to grant a motion for joinder. State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982).\nWe find the trial judge did not err in ruling that the charges of taking indecent liberties with a child and first degree sexual offense could properly be joined, as we find an adequate \u201ctransactional connection\u201d exists in that these charges involved the same defendant, the same victim, and the same surrounding circumstances. (See State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988), where our Supreme Court upheld the joinder of two charges of first degree sexual offense and two charges of taking indecent liberties with a child between the same defendant and the same victim on more than one occasion.) We find no abuse of discretion by the trial judge as to this ruling.\nDefendant next argues the trial court erred by denying defendant\u2019s motion to dismiss where the indictments and the testimony presented were insufficient for defendant to effectively defend against the charges. Defendant claims \u201c[a] more specific date was necessary for defendant to adequately prepare his defense. . . . Without a more specific date or dates, defendant was unable to offer an alibi for a nine month period or to offer proof that someone else around the child for a specific period may have committed the offenses.\u201d\nNorth Carolina General Statutes \u00a7 15A-924(a)(4) (Cum. Supp. 1992) states a criminal pleading must contain:\nA statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time. Error as to a date or its omission is not ground for dismissal of the charges or for reversal of a conviction if time was not of the essence with respect to the charge and the error or omission did not mislead the defendant to his prejudice.\nIn State v. Reynolds, 93 N.C. App. 552, 378 S.E.2d 557 (1989), the defendant was found guilty of attempted first degree rape of a nine year old child. The State could not establish the specific time the offense occurred, only that it took place during the summer of 1986. Our Court held, pursuant to North Carolina General Statutes \u00a7 15A-924(a)(4), \u201c[t]he State is not required to establish a specific date; . . . the State must only provide a statement of the approximate date or period of time during which the alleged offense occurred.\u201d Reynolds, 93 N.C. App. at 557, 378 S.E.2d at 560. (Emphasis in original.) Further, our Supreme Court has also considered the difficulty of young children attempting to identify exact dates crimes may have occurred. E.g., State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983).\nIn the case sub judice, the minor child testified that the sexual acts committed by defendant occurred when she was in kindergarten. This established with some certainty the time frame during which the offenses occurred. We find defendant\u2019s motion to dismiss the indictment was properly denied.\nDefendant further argues the trial court erred by allowing testimony of prior uncharged acts allegedly committed by defendant. Specifically, defendant argues that on re-direct examination, Felicia Sims improperly testified that her husband \u201cbeat [her] all the time.\u201d Defendant argues that this \u201cis highly inflammatory and was overly prejudicial.\u201d We have reviewed the transcript of this re-direct examination which took place, and we find that Ms. Sims was only explaining the testimony she gave during cross-examination. No error.\nDefendant next argues the trial court erred by allowing a therapist to testify regarding the minor child\u2019s truthfulness. Specifically, defendant refers to the following colloquy between the district attorney and Patricia Mauney:\nQ. Ms. Mauney, based upon your training and experience, do you have an opinion whether the things that you\u2019ve just listed for me \u2014 the sexual play, age inappropriate knowledge, low self esteem, the anger, tearfulness, shame and hiding, depression, nightmares, delayed reporting, and the feeling of responsibility for the abuse, are consistent with a child who has been sexually abused?\nMS. BROOKS: Objection, Your Honor.\nCOURT: Overruled.\nA. Yes. I do have an opinion.\nQ. And what is your opinion?\nA. I think none of these symptoms by itself is a total indication that sexual abuse is present, but I think with the clustering of these symptoms that [the minor child] showed, that there is a very high probability that she had been sexually abused.\nDefendant asserts that this testimony \u201cis in essence that [the minor child] is telling the truth.\u201d We disagree.\nNorth Carolina General Statutes \u00a7 8C-1, Rule 702 (1992) states \u201c[i]f \u2022 \u2022 \u2022 specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\u201d The record indicates that Ms. Mauney, a therapist at the Mecklenburg County Center for Mental Health, was properly qualified as an expert witness, and therefore, it was proper for her to discuss the symptoms and characteristics of sexually abused children and to express, in her expert opinion, whether the minor child exhibited similar characteristics. See State v. Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987). We find this testimony was admissible expert opinion testimony, and we overrule this assignment of error.\nLastly, we address defendant\u2019s final two arguments. Defendant contends the trial court erred by allowing a counselor to testify regarding a picture drawn by the minor child and by allowing the picture, which had been \u201caltered and labeled\u201d by the counselor, into evidence. Specifically, defendant objects to the testimony of Linda Ellis, a counselor for the Victim\u2019s Assistance Program, as to a crayon picture drawn by the minor child.\nDuring a therapy session, Ms. Ellis asked the minor child to describe the drawing to her, and Ms. Ellis recorded the minor child\u2019s responses directly on the drawing. Defendant argues that this is inadmissible hearsay. We disagree. We find Ms. Ellis\u2019 testimony and the admittance of the drawing into evidence by the trial judge was properly allowed as a hearsay exception, namely, North Carolina General Statutes \u00a7 8C-1, Rule 803(4) (1992):\nStatements for Purposes of Medical Diagnosis or Treatment.\u2014 Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.\nAs a counselor for the Victim\u2019s Assistance Program, Ms. Ellis properly could make notations as to the minor child\u2019s statements concerning the various parts of the drawing which the minor child herself drew. The recordation of these comments for future analysis and medical discussion directly pertained to diagnosis or treatment relating to the minor child, and was not improper. We overrule this assignment of error.\nWe find that defendant received a fair trial free from prejudicial error.\nJudges ORR and McCRODDEN concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Special Deputy Attorney General W. Dale Talbert, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Anne Nicholson Hogewood, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NICKY JAY HAMMOND, Defendant\nNo. 9226SC524\n(Filed 2 November 1993)\n1. Criminal Law \u00a7 305 (NCI4th)\u2014 separate offenses \u2014same defendant, victim, and circumstances \u2014 joinder proper\nThe trial court did not err in ruling that the charges of taking indecent liberties with a child and first-degree sexual offense could properly be joined for trial, since an adequate transactional connection existed in that the charges involved the same defendant, the same victim, and the same surrounding circumstances. N.C.G.S. \u00a7 15A-926(a).\nAm Jur 2d, Actions \u00a7 159.5; Criminal Law \u00a7 20.\n2. Rape and Allied Offenses \u00a7 86 (NCI4th)\u2014 time of offenses \u2014 testimony sufficient\nIn a prosecution of defendant for attempted first-degree rape, first-degree sexual offense, and taking indecent liberties with a child, the trial court properly denied defendant\u2019s motion to dismiss the charges made on the ground that the indictments and testimony were not sufficiently specific as to when the offenses occurred, since the minor child testified that the sexual acts committed by defendant occurred when she was in kindergarten, and this testimony established with some certainty the time frame during which the offenses occurred. N.C.G.S. \u00a7 15A-924(a)(4).\nAm Jur 2d, Rape \u00a7\u00a7 88, 89.\n3. Evidence and Witnesses \u00a7 2332 (NCI4th)\u2014 characteristics of sexually abused children \u2014victim exhibiting characteristics \u2014 no expression of opinion on child\u2019s truthfulness \u2014 expert opinion admissible\nThe trial court did not err in allowing an expert witness to discuss the symptoms and characteristics of sexually abused children and to express, in her expert opinion, whether the minor child exhibited such characteristics, and this testimony was not an improper opinion as to the child\u2019s truthfulness.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 211, 214, 217, 220.\n4. Evidence and Witnesses \u00a7 962 (NCI4th)\u2014 sexual abuse victim\u2014 picture drawn by child \u2014counselor\u2019s testimony \u2014admission under medical diagnosis and treatment exception to hearsay rule\nIn a prosecution of defendant for attempted first-degree rape, first-degree sexual offense, and taking indecent liberties with a child, the trial court did not err by allowing a victim\u2019s assistance counselor to testify regarding a picture drawn by the minor child and by allowing the picture which had been labeled by the counselor into evidence, since the counselor\u2019s testimony and the picture on which the counselor had written the child\u2019s description of the drawing were properly allowed under the medical diagnosis and treatment exception to the hearsay rule. N.C.G.S. \u00a7 8C-1, Rule 803(4).\nAm Jur 2d, Evidence \u00a7\u00a7 718, 719.\nAppeal by defendant from judgments entered 18 December 1991 by Judge Forrest A. Ferrell in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 April 1993.\nLacy H. Thornburg, Attorney General, by Special Deputy Attorney General W. Dale Talbert, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Anne Nicholson Hogewood, for defendant-appellant." }, "file_name": "0454-01", "first_page_order": 484, "last_page_order": 492 }