{ "id": 11197996, "name": "STATE OF NORTH CAROLINA v. SHELLY WASHINGTON", "name_abbreviation": "State v. Washington", "decision_date": "1998-10-20", "docket_number": "No. COA97-838", "first_page": "156", "last_page": "168", "citations": [ { "type": "official", "cite": "131 N.C. App. 156" } ], "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": "475 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203799 ], "opinion_index": -1, "case_paths": [ "/us/475/0387-01" ] }, { "cite": "502 U.S. 346", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6226656 ], "opinion_index": -1, "case_paths": [ "/us/502/0346-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "139 L. Ed. 2d 647", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "118 S. Ct. 704", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1998, "opinion_index": 0 }, { "cite": "485 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "288" } ], "opinion_index": 0 }, { "cite": "346 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139325 ], "year": 1997, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0233-01" ] }, { "cite": "358 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "358 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729670, 4730118, 4726092, 4725548, 4724635 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0174-01", "/nc/320/0174-04", "/nc/320/0174-02", "/nc/320/0174-03", "/nc/320/0174-05" ] }, { "cite": "354 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169578 ], "year": 1987, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0001-01" ] }, { "cite": "450 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "884" } ], "opinion_index": 0 }, { "cite": "338 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519398 ], "year": 1994, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0394-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(4)", "parenthetical": "defining \"sexual act\"" }, { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "353 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "383" }, { "page": "384" } ], "opinion_index": 0 }, { "cite": "319 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743860 ], "year": 1987, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0152-01" ] }, { "cite": "104 L. Ed. 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", "year": 1988, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "323 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565899 ], "year": 1988, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0508-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "741", "parenthetical": "quoting Smith, 315 N.C. at 93, 337 S.E.2d at 845" } ], "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "year": 1986, "pin_cites": [ { "page": "9", "parenthetical": "quoting Smith, 315 N.C. at 93, 337 S.E.2d at 845" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "86" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "503 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "106" }, { "page": "107" } ], "opinion_index": 0 }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "815-16", "parenthetical": "expressly declining to address whether demonstrating a child declarant's unavailability is required to admit the child's statements under the residual hearsay exception" }, { "page": "652", "parenthetical": "expressly declining to address whether demonstrating a child declarant's unavailability is required to admit the child's statements under the residual hearsay exception" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" }, { "page": "65" }, { "page": "607", "parenthetical": "stating that \"the Sixth Amendment establishes a rule of necessity\" such that ordinarily, \"the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant\"" }, { "page": "66" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "380 U.S. 415", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525326 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "418" }, { "page": "937" } ], "opinion_index": 0, "case_paths": [ "/us/380/0415-01" ] }, { "cite": "352 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "426" } ], "opinion_index": 0 }, { "cite": "319 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745368 ], "year": 1987, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0084-01" ] }, { "cite": "337 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "315 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719180 ], "year": 1985, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0191-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 }, { "cite": "475 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203799 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/475/0387-01" ] }, { "cite": "502 U.S. 346", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6226656 ], "weight": 11, "pin_cites": [ { "page": "352-53" }, { "page": "856-57" }, { "page": "356" }, { "page": "859" }, { "page": "357" }, { "page": "860" }, { "page": "354-55" }, { "page": "858-59", "parenthetical": "suggesting that a showing of declarant's unavailability is not required even if hearsay does not fall within a firmly rooted hearsay exception" }, { "page": "356" }, { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/us/502/0346-01" ] } ], "analysis": { "cardinality": 1067, "char_count": 29677, "ocr_confidence": 0.744, "pagerank": { "raw": 3.00825305137857e-07, "percentile": 0.8530086116989832 }, "sha256": "da201f26a240fd2b7305e50088e101871fb6271880b8c0cee4cd45096b56d666", "simhash": "1:8f214d20d6d886ca", "word_count": 4797 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C. and MARTIN, Mark D., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SHELLY WASHINGTON" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant appeals from his convictions of second-degree rape in violation of N.C. Gen. Stat. \u00a7 14-27.3 (1993) and second-degree sexual offense in violation of N.C. Gen. Stat. \u00a7 14-27.5 (1993). The State\u2019s evidence tended to show that on the evening of 25 December 1994, A.W. was raped by defendant at the residence of A.W.\u2019s mother, Ethel, and sister, Luttrell. Defendant was Ethel\u2019s boyfriend. The facts of the case will be described in greater detail in the discussion below.\nI. Determination That A.W. Was Incompetent to Testify\nBefore trial, the State moved to have A.W. declared incompetent to testify. After a hearing, the trial court found that A. W. was not competent to testify because she was \u201cincapable of expressing [herself] concerning the matter as to be understood, either directly or through interpretation by one who can understand [her].\u201d N.C.R. Evid. 601(b). Defendant argues that it was error to grant the motion.\nThe determination of whether a witness is competent to testify rests within the sound discretion of the trial judge, who has the opportunity to observe the witness first-hand. State v. Fields, 315 N.C. 191, 204, 337 S.E.2d 518, 526 (1985). \u201cAbsent a showing that the ruling as to competency could not have been the result of a reasoned decision, the ruling must stand on appeal.\u201d State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426 (1987).\nAt the competency hearing, the court received testimony from Dr. Monty Grubb, an expert in the psychology of mentally retarded individuals. Dr. Grubb is a consultant to an organization that provides health care services to A.W. He testified that his job involves reviewing A.W.\u2019s psychological evaluations and providing psychological therapy, that he has been working in this position for a year, and that he is reasonably familiar with A.W.\u2019s medical history. Dr. Grubb stated that over the past year, he had spoken with A.W. at six or seven sessions for ten to thirty minutes per session. He further stated that he has brief contact with A.W. weekly \u201cwhere we may not exchange words but we see each other.\u201d\nDr. Grubb indicated that although A. W. \u201cunderstands most of simple conversation,\u201d she cannot speak in a manner that is easily understood. He testified that A.W.\u2019s cerebral palsy impairs her ability to speak and makes it \u201cvery difficult to understand much of what she says.\u201d\nThe only other witness to testify at the competency hearing was A.W. herself. Based on his observation of A.W., the trial judge stated that \u201cthe court had a very difficult time understanding what [A.W.] was actually saying in response to the questions.\u201d\nBased on the evidence presented at the competency hearing, we cannot say that the trial court abused its discretion in ruling that A.W. was incapable of effectively communicating at trial and was therefore incompetent to testify.\nII. Hearsay Statements Challenged bv Defendant\nDefendant next argues that the trial court erred by allowing several witnesses to testify regarding statements made by A. W. about the alleged rape. Defendant argues that because hearsay statements by A.W. were admitted into evidence at trial, and because defendant had no opportunity to cross-examine A.W., his right of confrontation under the Sixth Amendment was violated.\nA criminal defendant has the \u201cright... to be confronted with the witnesses against him.\u201d U.S. Const, amend VI. See also N.C. Const, art. I, \u00a7 23 (similar). The right of confrontation guaranteed by the Sixth Amendment includes the right to cross-examine adverse witnesses. Douglas v. Alabama, 380 U.S. 415, 418, 13 L. Ed. 2d 934, 937 (1965). A person is a \u201cwitness against\u201d a criminal defendant not only when she testifies at trial, but also when statements of hers that are adverse to the defendant are admitted as hearsay. See White v. Illinois, 502 U.S. 346, 352-53, 116 L. Ed. 2d 848, 856-57 (1992).\nA defendant\u2019s right to cross-examine the witnesses against him is not absolute. For example, the admission of hearsay that \u201ccome[s] within a firmly rooted exception to the hearsay rule\u201d generally does not violate the defendant\u2019s right of confrontation even if the defendant has no opportunity to cross-examine the declarant. Id. at 356, 116 L. Ed. 2d at 859. This is because statements that fall within firmly rooted hearsay exceptions are deemed \u201cso trustworthy that adversarial testing can be expected to add little to [their] reliability.\u201d Id. at 357, 116 L. Ed. 2d at 860.\nFurthermore, some hearsay that does not fall within a firmly rooted hearsay exception may be admitted without violating the Confrontation Clause. Such hearsay must be marked by \u201cparticularized guarantees of trustworthiness.\u201d See Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608 (1980). Whether such hearsay must also be \u201cnecessary\u201d to the prosecution\u2019s case is debatable. See id. at 65, 65 L. Ed. 2d at 607 (stating that \u201cthe Sixth Amendment establishes a rule of necessity\u201d such that ordinarily, \u201cthe prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant\u201d); Idaho v. Wright, 497 U.S. 805, 815-16, 111 L. Ed. 2d 638, 652 (1990) (expressly declining to address whether demonstrating a child declarant\u2019s unavailability is required to admit the child\u2019s statements under the residual hearsay exception); White, 502 U.S. at 354-55, 116 L. Ed. 2d at 858-59 (suggesting that a showing of declarant\u2019s unavailability is not required even if hearsay does not fall within a firmly rooted hearsay exception). Nevertheless, our state Supreme Court has interpreted the relevant United States Supreme Court opinions as holding that where hearsay does not fall within a firmly rooted exception to the hearsay rule, its admission violates the Confrontation Clause unless the State establishes not only the reliability of the hearsay, but also its necessity. State v. Jackson, 503 S.E.2d 101, 106 (N.C. 1998).\nIn Jackson, our state Supreme Court also held that it would interpret a criminal defendant\u2019s right of confrontation under the North Carolina Constitution by applying the same reasoning of the United States Supreme Court in White v. Illinois, supra, and in United States v. Inadi, 475 U.S. 387, 89 L. Ed. 2d 390 (1986). Specifically, the Jackson Court held that \u201cwhere hearsay proffered by the prosecution comes within a firmly rooted exception to the hearsay rule, the Confrontation Clause of the North Carolina Constitution is not violated, even though no particularized showing is made as to the necessity for using such hearsay or as to its reliability or trustworthiness.\u201d Jackson, 503 S.E.2d at 107. With these principles in mind, we turn to the statements by A.W. that were admitted as hearsay over defendant\u2019s objection.\nA. Statements to Luttrell and Ethel\nA.W.\u2019s sister, Luttrell, testified that on the evening of the alleged rape, she left her mother\u2019s house to visit a next-door neighbor, locking the door and leaving A.W. behind. Fifteen to twenty minutes later, A.W. arrived at the neighbor\u2019s house. At first, Luttrell could not understand what A.W. was trying to tell her because A.W. was upset and crying. Then A.W. said, \u201cMy mama friend, right. Shelton raped me.\u201d Luttrell told her to stop lying, but A.W. said, \u201cNo. He stuck his d\u2014 in me.\u201d According to Luttrell, when Luttrell brought A.W. back to her mother\u2019s house, A.W. told her that Shelton had \u201ckissed her in the mouth\u201d and had given her perfume and fifteen dollars and told her not to tell her sister or mother that he had given her those items. Luttrell stated that A.W. was upset and crying when she said these things.\nLuttrell telephoned their mother, Ethel, and told Ethel what A.W. had said. Ethel testified that when she arrived home about five minutes later, A.W. was shaking and crying and \u201c[h]ad a scared look on her face.\u201d Ethel testified that A.W. told her what had happened. The account that A.W. gave Ethel was almost exactly what she had told Luttrell. According to Ethel, A.W. was upset and crying and \u201cshaking like a leaf\u201d when she was describing what had occurred.\nThe trial court held, and we agree, that A.W.\u2019s statements to Ethel and Luttrell were excited utterances, admissible as exceptions to the general rule prohibiting hearsay testimony. See N.C.R. Evid. 803(2). A statement is an excited utterance if it is the result of an \u201coccurrence or event sufficiently startling to render inoperative the normal reflective processes of the observer,\u201d and, more specifically, it is \u201ca spontaneous reaction to the occurrence or event and not the result of reflective thought.\u201d 2 Kenneth S. Broun et al., McCormick on Evidence \u00a7 272 (John William Strong ed., 4th ed. 1992); see State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985). In this case, A.W.\u2019s statements to Luttrell and Ethel explained that she had been raped by Ethel\u2019s boyfriend less than thirty minutes before. Both Luttrell and Ethel testified that A.W. was visibly shaken when she made the statements. This testimony, collectively, was sufficient to support the court\u2019s ruling.\nB. Statements to Officer Fev and Investigator Vincent\nShortly after she arrived home, Ethel dialed 911 and told the operator her daughter had been raped. Officer Fey of the Wilmington Police Department was dispatched at 10:30 p.m. When he arrived about five minutes later, Officer Fey took a statement from A. W. using Ethel as an interpreter. Shortly after 11:00 p.m., Investigator Sharon Vincent of the Wilmington Police Department interviewed A.W. The statements A.W. made to Officer Fey and Investigator Vincent were essentially the same as those she made to Luttrell and Ethel.\nOver defendant\u2019s objection, the court admitted A.W.\u2019s statements to Officer Fey and Investigator Vincent. The court concluded that these statements fell within the residual exceptions to the hearsay rule, N.C.R. Evid. 803(24) and 804(b)(5), which allow the admission of hearsay not falling within well-established hearsay exceptions but \u201chaving equivalent circumstantial guarantees of trustworthiness.\u201d In ruling these statements admissible, the trial court concluded only that the statements were \u201ctrustworthy,\u201d and the court made no findings of fact supporting that conclusion.\nThe trial court failed to make the necessary \u201cfindings of fact and conclusions of law that the statements] possess [] \u2018equivalent circumstantial guarantee^] of trustworthiness.\u2019 \u201d State v. Triplett, 316 N.C. 1, 9, 340 S.E.2d 736, 741 (1986) (quoting Smith, 315 N.C. at 93, 337 S.E.2d at 845). For this reason, it was error to admit the statements of A.W. to Officer Fey and Investigator Vincent.\nC. Statements to Nurse Madeiros\nEthel took A. W. to the emergency room at New Hanover Regional Medical Center and requested that A.W. be examined for possible rape injuries. Nurse Bernadine Madeiros met with A.W. at the hospital. Nurse Madeiros described her role in examining A.W. and other potential rape victims as follows:\nIt is actually a combined effort with Rape Crisis. We make sure the patient is okay. That she is not injured. We get as much detail as we can about the situation so that we can make sure that something didn\u2019t occur that we need to call a physician immediately. We get a reasonable detail of the situation so I know that she isn\u2019t bleeding or hysterical or anything immediately.\nNurse Madeiros stated that A.W. described her encounter with \u201cShelton\u201d and what Shelton had done. A.W.\u2019s description was consistent with her statements to Luttrell and Ethel. In addition, Nurse Madeiros testified that A.W. told her Shelton had penetrated her vagina with his finger. She also testified that A.W. identified her assailant as a black male whom she knew.\nAlthough A.W.\u2019s statements to Nurse Madeiros were hearsay, they were clearly made for purposes of medical diagnosis or treatment and the trial court correctly admitted them under Rule of Evidence 803(4).\nD. Confrontation Clause Analysis\nBecause A.W.\u2019s statements to Luttrell, Ethel, and Nurse Madeiros fell within firmly rooted exceptions to the hearsay rule, their admission did not violate defendant\u2019s Sixth Amendment right to cross-examine the declarant. See White, 502 U.S. at 356, 116 L. Ed. 2d at 859. In contrast, A.W.\u2019s statements to Officer Fey and Investigator Vincent were not found to fall within a firmly rooted hearsay exception. The court stated in conclusory fashion that these statements were \u201ctrustworthy,\u201d but it failed to make the necessary, particularized findings that the statements possessed circumstantial guarantees of trustworthiness. See Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608; State v. Deanes, 323 N.C. 508, 515, 374 S.E.2d 249, 255 (1988), cert. denied, 490 U.S. 1101, 104 L. Ed. 2d 1009 (1989). The record before us does not affirmatively demonstrate that such \u201ccircumstantial guarantees of trustworthiness\u201d exist. It was therefore error to admit these statements under the residual hearsay exceptions. This error violated defendant\u2019s Sixth Amendment right of confrontation.\nNevertheless, the trial court\u2019s error could not have prejudiced defendant. The testimony of Officer Fey and Investigator Vincent regarding A.W.\u2019s description of the rape was almost entirely repetitive of the testimony of Ethel, Luttrell, and Nurse Madeiros, all of which was properly admitted. For this reason, the admission of the testimony of Officer Fey and Investigator Vincent, though error, was harmless beyond a reasonable doubt. See N.C. Gen. Stat. \u00a7 15A-1443(b) (1997).\nIII. Trial Testimony of Dr. Grubb\nAt trial, Dr. Monty Grubb testified for the State as an expert witness in the field of psychology, specifically in the field of working with, counseling, and treating mentally retarded people. Dr. Grubb has undergraduate, masters, and doctoral degrees in psychology. He is a member of the American Psychological Society and a member of the American Association on Mental Retardation. He has worked in the field of mental retardation as a psychologist since 1976 and has a total of fourteen years of experience working directly with mentally retarded persons. For the past six years before trial, Dr. Grubb worked as a consultant to several organizations in North Carolina that provide group homes for people with mental retardation.\nDr. Grubb testified that over the year he had known A.W., he met with her about once a month for counseling sessions lasting twenty to thirty minutes. He probably \u201cmade eye contact\u201d with A.W. at least once a week. Dr. Grubb testified that A.W. was mentally retarded. Based on his experiences and on his review of psychological evaluations performed on A.W., Dr. Grubb testified that A.W. functions around the level of an eight-year-old, both mentally and emotionally. He testified that A.W.\u2019s ability to make informed decisions about \u201canything complicated\u201d is significantly decreased by her mental retardation. In Dr. Grubb\u2019s words, \u201c[S]he can\u2019t evaluate a lot of different things and put it together and make a decision in her own best interest most of the time. Weighing all the consequences and all the information is something that she is not very capable of doing.\u201d\nDr. Grubb was asked if he had an opinion about how A.W. would react to a sexual advance made by an adult with whom she was only vaguely familiar. He answered, over defendant\u2019s objection, that in his opinion A.W. would \u201crespond similarly to an individual who corresponds to her intellectual and adaptive behavior age. She would respond very similar [sic] to an eight-year-old.\u201d Dr. Grubb stated that A.W. might be somewhat intimidated and that she might freeze up. According to Dr. Grubb, A.W. might consider the person making the advance \u201cas someone that she is supposed to show respect for because he was a normal functioning adult.\u201d\nDr. Grubb went on to testify that in his experience, A.W. is more relaxed around adults with whom she is familiar and that she is more tense around strangers. On redirect, Dr. Grubb reiterated that if sexual advances were made to A.W. by a person with whom she was not substantially familiar, she might \u201cfreeze,\u201d because her \u201cinitial reaction could be so emotionally laden, not realizing what was happening, . . . given the emotional nature of the situation.\u201d Dr. Grubb also read into evidence, without objection, part of a psychological evaluation indicating that A.W. might easily be taken advantage of by a stranger.\nDefendant argues that it was error to allow Dr. Grubb to give an opinion about how A.W. would have reacted to a sexual advance. Expert testimony is admissible if it \u201ccan assist the jury in drawing certain inferences from facts and the expert is better qualified than the jury to draw such inferences.\u201d State v. Evangelista, 319 N.C. 152, 163, 353 S.E.2d 375, 383 (1987); see N.C.R. Evid. 702. The trial court is given wide discretion in applying this rule and will be reversed only for an abuse of discretion. Id. at 164, 353 S.E.2d at 384.\nWe cannot say that the trial court abused its discretion in allowing Dr. Grubb to answer the State\u2019s hypothetical question. Based on his knowledge of psychology, his many years of experience with mentally retarded persons, his knowledge of A.W.\u2019s psychological evaluations, and his personal interactions with A.W., the trial court correctly allowed him to express an opinion regarding how A.W. would likely have reacted to a sexual advance.\nIV. Motion to Dismiss\nDefendant was charged in separate indictments with two counts of second-degree rape. The first count alleged that defendant had vaginal intercourse with A.W. by force and against her will, in violation of G.S. 14-27.3(a)(l). The second count alleged that, in violation of G.S. 14-27.3(a)(2), defendant had vaginal intercourse with A.W., that A.W. was mentally defective, and that A.W.\u2019s mental defect was known or should have been known to defendant.\nSimilarly, defendant was charged in separate indictments with two counts of second-degree sexual offense: engaging in a sexual act by force and against the will of the victim, G.S. 14-27.5(a)(l), and engaging in a sexual act with a victim who was mentally defective, G.S. 14-27.5(a)(2). The record clearly indicates that the two counts of second-degree rape were based on the same act of vaginal intercourse, and the two counts of second-degree sexual offense were based on the same sexual act.\nThe jury was instructed on all four counts. Defendant was convicted on all four counts. The trial court arrested judgment on the counts alleging violations of G.S. 14-27.3(a)(l) and G.S. 14-27.5(a)(l).\nThe only issue raised by defendant with respect to the submission of the four counts to the jury is whether the trial court erred by denying his motion to dismiss all charges. A motion to dismiss on the ground of insufficient evidence should be denied if there is substantial evidence of each element of the offense charged and that defendant was the perpetrator. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). In deciding the motion, a court must consider the evidence in the light most favorable to the State. Id.\nGeneral Statutes section 14-27.3, which defines the crime of second-degree rape, reads in relevant part:\n(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\n(1) By force and against the will of the other person; or\n(2) Who is mentally defective . .. and the person performing the act knows or should reasonably know the other person is mentally defective....\nGeneral Statutes section 14-27.5, which defines the crime of second-degree sexual offense, reads in relevant part:\n(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:\n(1) By force and against the will of the other person; or\n(2) Who is mentally defective ... and the person performing the act knows or should reasonably know the other person is mentally defective ....\nSee also N.C. Gen. Stat. \u00a7 14-27.1(4) (defining \u201csexual act\u201d). The crimes of second-degree rape and second-degree sexual offense thus differ only with respect to the conduct prohibited.\nA person is \u201cmentally defective\u201d if she \u201csuffers from mental retardation . . . which temporarily or permanently renders [her] substantially incapable of appraising the nature of . . . her conduct, or of resisting the act of vaginal intercourse or a sexual act, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act.\u201d N.C. Gen. Stat. \u00a7 14-27.1(1) (1993). Our Supreme Court has indicated that one who is \u201cmentally defective\u201d under the sex offense laws is \u201cstatutorily deemed incapable of consenting\u201d to intercourse or other sexual acts. State v. Holden, 338 N.C. 394, 406, 450 S.E.2d 878, 884 (1994). It has further indicated that force is \u201cinherent to having sexual intercourse with a person who is deemed by law to be unable to consent.\u201d Id.\nAccordingly, if there is substantial evidence that a person has engaged in prohibited sexual conduct in violation of G.S. 14-27.3 or 14-27.5, and that the victim was mentally defective, and that the person performing the act knew or reasonably should have known that the victim was mentally defective, then ipso facto, there is substantial evidence that the person has engaged in such conduct \u201cby force and against the will\u201d of the victim.\nIn this case, there was substantial evidence that defendant engaged in both vaginal intercourse and a \u201csexual act\u201d with A.W. There was also substantial evidence that A. W. was mentally retarded, and that defendant knew of A.W.\u2019s retardation. Finally, there was substantial evidence that A.W.\u2019s mental retardation rendered her substantially incapable of \u201cresisting the act of vaginal intercourse or a sexual act.\u201d See State v. Oliver, 85 N.C. App. 1, 20, 354 S.E.2d 527, 538, disc. review denied, 320 N.C. 174, 358 S.E.2d 64, supersedeas denied, 320 N.C. 174, 358 S.E.2d 65 (1987). The trial court correctly denied defendant\u2019s motion to dismiss.\nV. Jury Instructions\nThe trial court admitted evidence that at the time defendant committed the sexual offenses against A.W., he was on furlough from prison, where he was serving a sentence for armed robbery. Defendant orally requested that the trial court instruct the jury not to consider this fact in its deliberations, but that motion was denied. Because defendant failed to submit his request for instructions in writing in compliance with General Statutes section 15A-1231(a) (1997), the trial court\u2019s denial of defendant\u2019s motion was not error. See State v. McNeill, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997), cert. denied, 118 S. Ct. 704, 139 L. Ed. 2d 647 (1998).\nFinally, defendant argues that the trial court committed plain error by referring to A. W. as a \u201cvictim\u201d in its charge to the jury. On the evidence presented, we cannot say that this is one of those rare cases in which the defendant probably would have acquitted had the trial court omitted the word \u201cvictim\u201d from its charge to the jury. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).\nNo error.\nJudges MARTIN, John C. and MARTIN, Mark D., concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Jane Ammons Gilchrist, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SHELLY WASHINGTON\nNo. COA97-838\n(Filed 20 October 1998)\n1. Witnesses\u2014 competency \u2014 rape victim with cerebral palsy \u2014 speech not clear\nThe trial court did not abuse its discretion in a prosecution for second-degree rape and second-degree sexual offense against a mentally retarded victim by granting the State\u2019s motion to have her declared incompetent to testify. An expert in the psychology of mentally retarded individuals who is a consultant to the organization providing health care services to the victim testified that he was familiar with the victim\u2019s history, that he had had six or seven sessions with her over the past year, and that her cerebral palsy impaired her ability to speak and made it difficult to understand much of what she said. The only other witness at the competency hearing was the victim herself, and the judge stated that he had had a difficult time understanding what the victim was actually saying.\n2. Constitutional Law\u2014 Confrontation Clause \u2014 admission of hearsay testimony\nAlthough a criminal defendant has the constitutional right to confront and cross-examine witnesses against him, the right to cross-examine is not absolute. The admission of hearsay within a firmly rooted exception generally does not violate the right of confrontation but hearsay which does not fall within a firmly rooted exception violates the Confrontation Clause unless the State establishes the reliability of the hearsay and its necessity.\n3. Constitutional Law\u2014 State \u2014 confrontation clause \u2014 admission of hearsay testimony\nA criminal defendant\u2019s right'of confrontation under the North Carolina Constitution will be interpreted by applying the reasoning of the United States Supreme Court in White v. Illinois, 502 U.S. 346, and United States v. Inadi, 475 U.S. 387. Specifically, where hearsay proffered by the prosecution comes within a firmly rooted exception of the hearsay rule, the Confrontation Clause of the North Carolina Constitution is not violated, even though no particularized showing is made as to the necessity for using such hearsay or as to its reliability or trustworthiness.\n4. Evidence\u2014 hearsay \u2014 excited utterances\nThe trial court did not err in a prosecution for second-degree rape and second-degree sexual offense against a mentally retarded victim by holding that the victim\u2019s statements to her sister and mother on the evening of the rape were excited utterances where the victim\u2019s statements explained that she had been raped by the mother\u2019s boyfriend less than thirty minutes before and both witnesses testified that the victim was visibly shaken when she made the statements.\n5. Evidence\u2014 hearsay \u2014 residual exception \u2014 no findings \u2014 not prejudicial\nThere was no prejudicial error in a second-degree rape and sexual offense prosecution where the court admitted statements by an officer and investigator who took statements from the victim under the residual exception to the hearsay rule without making findings of fact supporting the conclusion that the officers\u2019 statements were trustworthy. The officers\u2019 testimony was almost entirely repetitive of other testimony which was properly admitted.\n6. Evidence\u2014 hearsay \u2014 medical treatment exception\nThe trial court did not err in a prosecution for second-degree rape and sexual offense by admitting statements the victim made to a nurse who examined her at a hospital. The statements were clearly made for the purposes of medical diagnosis or treatment.\n7. Constitutional Law\u2014 right of confrontation \u2014 hearsay testimony\nStatements made by a second-degree rape and sexual offense victim to her mother, sister, and a nurse fell within firmly rooted exceptions to the hearsay rule and their admission did not violate defendant\u2019s Sixth Amendment right to cross-examine the declar-ant. However, statements which were erroneously admitted under the residual exception because the court did not make the necessary, particularized findings that the statements possessed circumstantial guarantees of trustworthiness violated defendant\u2019s Sixth Amendment right of confrontation.\n8. Evidence\u2014 expert opinion \u2014 psychologist\u2014mentally retarded victim \u2014 likely reaction to sexual advance\nThe trial court did not abuse its discretion in a prosecution for second-degree murder and sexual offense against a mentally retarded defendant by allowing a psychologist to answer the State\u2019s hypothetical question concerning the victim\u2019s likely reaction to a sexual advance. The court correctly allowed the witness to express an opinion based on his knowledge of psychology, his many years of experience with mentally retarded persons, his knowledge of the victim\u2019s psychological evaluations, and his personal interactions with the victim.\n9.Rape; Sexual Offenses\u2014 retarded victim \u2014 acts by force\u2014 evidence sufficient\nIn a prosecution for second-degree rape and sexual offense against a mentally retarded victim, the trial court correctly denied defendant\u2019s motion to dismiss where counts of rape by vaginal intercourse by force and against the victim\u2019s will and having vaginal intercourse with a victim who was mentally retarded were based on one act, and counts of second-degree sexual offense by force and with a mentally defective victim were also based on one act. There was substantial evidence that defendant engaged in both vaginal intercourse and a sexual act with the victim, that the victim was mentally retarded, that defendant knew of her retardation, and that her mental retardation rendered her substantially incapable of resisting.\n10. Criminal Law\u2014 instructions \u2014 request not in writing\nThe trial court did not err in a prosecution for second-degree rape and second-degree sexual offense by denying defendant\u2019s request that the jury be instructed to disregard the fact that the offenses occurred while he was on furlough from prison where the request for the instruction was not in writing.\n11. Criminal Law \u2014 jury charge \u2014 use of victim \u2014 no plain error\nThere was no plain error in a prosecution for second-degree rape and second-degree sexual offense against a mentally retarded victim in the court\u2019s use of \u201cvictim\u201d in its charge to the jury.\nAppeal by defendant from judgments entered 1 August 1996 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 19 March 1998.\nAttorney General Michael F. Easley, by Assistant Attorney General Jane Ammons Gilchrist, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant." }, "file_name": "0156-01", "first_page_order": 190, "last_page_order": 202 }