{ "id": 11144846, "name": "STATE OF NORTH CAROLINA v. AARON PRETTY", "name_abbreviation": "State v. Pretty", "decision_date": "1999-08-03", "docket_number": "No. COA98-1094", "first_page": "379", "last_page": "391", "citations": [ { "type": "official", "cite": "134 N.C. App. 379" } ], "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": "444 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "336 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537586 ], "year": 1994, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0321-01" ] }, { "cite": "446 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "3" }, { "page": "3" } ], "opinion_index": 0 }, { "cite": "336 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535590 ], "year": 1994, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0748-01" ] }, { "cite": "354 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169578 ], "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0001-01" ] }, { "cite": "441 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527776, 2528749, 2526514, 2529939, 2526391 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0562-05", "/nc/335/0562-04", "/nc/335/0562-02", "/nc/335/0562-03", "/nc/335/0562-01" ] }, { "cite": "435 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "802", "parenthetical": "an expert may express her opinion as to whether the victim exhibited characteristics \"similar\" to an abused child" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522033 ], "year": 1993, "pin_cites": [ { "page": "461", "parenthetical": "an expert may express her opinion as to whether the victim exhibited characteristics \"similar\" to an abused child" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0454-01" ] }, { "cite": "357 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "320 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729914 ], "year": 1987, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0020-01" ] }, { "cite": "341 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700970 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0337-01" ] }, { "cite": "350 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] }, { "cite": "501 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "345" }, { "page": "345" }, { "page": "345", "parenthetical": "stating that \" [t]he first part of the Strickland test is not satisfied where defendant cannot even establish that an error occurred\"" } ], "opinion_index": 0 }, { "cite": "348 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659843 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "491" }, { "page": "491" }, { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0474-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "562-63" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "128 L. Ed.2d 495", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "pin_cites": [ { "parenthetical": "holding that the trial court's finding of incompetence is not \"inconsistent as a matter of law with a finding that the child may nevertheless be qualified as a declarant out of court to relate truthfully personal information and belief\"" } ], "opinion_index": 0 }, { "cite": "114 S. Ct. 1875", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1994, "pin_cites": [ { "parenthetical": "holding that the trial court's finding of incompetence is not \"inconsistent as a matter of law with a finding that the child may nevertheless be qualified as a declarant out of court to relate truthfully personal information and belief\"" } ], "opinion_index": 0 }, { "cite": "511 U.S. 1102", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147201, 1147012, 1146585 ], "year": 1994, "pin_cites": [ { "parenthetical": "holding that the trial court's finding of incompetence is not \"inconsistent as a matter of law with a finding that the child may nevertheless be qualified as a declarant out of court to relate truthfully personal information and belief\"" } ], "opinion_index": 0, "case_paths": [ "/us/511/1102-02", "/us/511/1102-03", "/us/511/1102-01" ] }, { "cite": "435 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531234, 2531972, 2532363, 2530606, 2529022 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0625-02", "/nc/334/0625-03", "/nc/334/0625-01", "/nc/334/0625-04", "/nc/334/0625-05" ] }, { "cite": "428 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525843 ], "year": 1993, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0491-01" ] }, { "cite": "340 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "742" } ], "opinion_index": 0 }, { "cite": "316 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697175 ], "year": 1986, "pin_cites": [ { "page": "10-11" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0001-01" ] }, { "cite": "338 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "112" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522737 ], "year": 1985, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0565-01" ] }, { "cite": "504 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "88" }, { "page": "88" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468692 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "494" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0488-01" ] }, { "cite": "506 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11198977 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/131/0285-01" ] }, { "cite": "450 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "339 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558726 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "473-74" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0469-01" ] }, { "cite": "376 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "holding that a four-year-old victim who was unable to respond to questions because of fear was \"unavailable\" within meaning of hearsay rule and thus, her testimony from defendant's first trial was admissible in a subsequent retrial" } ], "opinion_index": 0 }, { "cite": "324 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486178 ], "year": 1989, "pin_cites": [ { "parenthetical": "holding that a four-year-old victim who was unable to respond to questions because of fear was \"unavailable\" within meaning of hearsay rule and thus, her testimony from defendant's first trial was admissible in a subsequent retrial" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0172-01" ] }, { "cite": "455 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "669" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918500 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0389-01" ] }, { "cite": "427 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174831 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "107" }, { "page": "2399" }, { "page": "351-52" } ], "opinion_index": 0, "case_paths": [ "/us/427/0097-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 4, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "503 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "103", "parenthetical": "emphasis added" }, { "page": "106" } ], "opinion_index": 1 }, { "cite": "348 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659841 ], "year": 1998, "pin_cites": [ { "page": "647", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/348/0644-01" ] }, { "cite": "517 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "446 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "65", "parenthetical": "quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694" } ], "opinion_index": 1 }, { "cite": "337 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549398 ], "year": 1994, "pin_cites": [ { "page": "177-78", "parenthetical": "quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694" } ], "opinion_index": 1, "case_paths": [ "/nc/337/0165-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "247" }, { "page": "248" } ], "opinion_index": 1 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "689" }, { "page": "694" }, { "page": "689" }, { "page": "694" } ], "opinion_index": 1, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 1054, "char_count": 27964, "ocr_confidence": 0.75, "pagerank": { "raw": 2.8941069231636534e-07, "percentile": 0.8445457630927518 }, "sha256": "85afdfae90d7affd47f50963d0669432769a0ad82827082be9a09ce28c73ba7e", "simhash": "1:953fc462626f8ef6", "word_count": 4489 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs in the result in a separate opinion.", "Judge MARTIN concurs." ], "parties": [ "STATE OF NORTH CAROLINA v. AARON PRETTY" ], "opinions": [ { "text": "WYNN, Judge.\nThe State of North Carolina tried Aaron Pretty in 1991 on charges of first-degree-statutory rape, first-degree-statutory sex offense, taking indecent liberties with a minor, and incest with his five-year-old daughter. Upon his conviction on all charges, the trial judge sentenced him to consecutive-life sentences for the rape and sex offenses, and concurrent sentences of ten years for indecent liberties and fifteen years for incest. Our review of his trial finds no error in either his conviction or sentence.\nThe evidence presented at trial showed that at the time of the alleged misconduct, the defendant\u2019s daughter lived in a foster home. The Durham County Department of Social Services had removed the child from her mother\u2019s custody due to allegations of sexual abuse by another man while the child stayed with her mother. However, a juvenile court ordered the Durham County Department of Social Services to allow the defendant to have unsupervised visits with the child.\nFollowing one of those visits, the child\u2019s foster mother became concerned that the child had been sexually abused. She testified at trial that while bathing the child she noticed that the child\u2019s vaginal area was red. She further testified that the child, referring to the defendant as \u201cJune\u201d, told her that \u201cit hurt down there where June was playing\u201d and also stated that during her visit the defendant got on top of her, \u201cplayed mama and daddy\u201d, and put his private part in her vagina.\nAccording to the foster mother, the child\u2019s behavior substantially changed following this unsupervised visit. In particular, the child began having nightmares during which time she would say: \u201cStop, June.\u201d Additionally, the child, who had previously been shy and manageable, began misbehaving at home and school. In fact, a school counselor testified that as a result of a drastic change in her behavior \u2014 including the child\u2019s actions of crying very easily and touching the private parts of little boys \u2014 the school began having major problems with the child in January 1991.\nOn 31 January 1991, the Duke Child Protection Team performed a medical evaluation of the child which revealed abnormal physical findings consistent with penile penetration of the vagina. Further physical findings included: a vaginal discharge; the hymenal tissue was narrowed and the rim thickened; the vaginal opening was 8-9mm, which was the upper limit or greater than upper limit of normal for a five-year-old child. Based on these physical findings, Dr. Thomas Frothingham, the Director of the Duke Child Protection Team, concluded that the findings were consistent with an evaluation that the child had been sexually abused.\nFollowing this evaluation, the Durham County Department of Social Services reported the findings to the Durham Police Department. Thereafter, Detective McDonald Vick, of the Durham Police Department, along with a female officer, interviewed the child. During this interview, the child used anatomically correct dolls to show the officers what had occurred during her unsupervised visit with the defendant. At trial, Detective Vick demonstrated the child\u2019s use of the anatomical dolls which included the placing of the \u201cdaddy\u201d doll on top of the \u201cchild\u201d doll with no clothes and moving back and forth, to simulate vaginal intercourse and digital penetration.\nJeanne Neimeyer, a clinical social worker at the Duke Child Protection Team, also testified as to the child\u2019s statements made to her during two interview sessions which occurred in March of 1991. She testified that the child told her that she slept with her daddy in his bed during this visit and while in the bed her daddy put \u201chis dink-a-link right there\u201d pointing to the genital area of the girl doll. During her cross examination, Ms. Neimeyer stated: \u201cI wouldn\u2019t expect a child to make a statement that [her] daddy put [his penis] in [her] mouth because a child wants to protect the people that she\u2019s close to and the people that take care of her. So I wouldn\u2019t have expected her to say it if it didn\u2019t happen.\u201d\nNotwithstanding the defense counsel\u2019s objections to the child\u2019s out-of-court statements made to the school counselor, police detective, and social worker, the trial court allowed these statements after determining that the child was incompetent as a witness and unavailable to testify.\nMoreover, the trial court denied defendant\u2019s pretrial motion to voir dire each of the State\u2019s expert witnesses \u2014 on the underlying basis of their opinion \u2014 before the witnesses gave their testimony. The, court, however, informed counsel that he could voir dire the witnesses as to their qualifications.\nThe trial court also denied the defendant\u2019s motion to dismiss the charges against him.\nOn appeal, the defendant contends that: (1) his pretrial request for voir dire of the State\u2019s expert witnesses should have been granted; (2) his motion to dismiss should have been granted; (3) the child\u2019s hearsay statements made to the school counselor, police detective, and social worker should not have been admitted into evidence; and (4) his counsel\u2019s failure to object to the social worker\u2019s testimony that the child was believable constituted ineffective assistance of counsel. We address each respectively.\nI.\nDefendant first argues that the trial court should have allowed his counsel to voir dire the State\u2019s expert witnesses before they testified at trial to determine the underlying basis of their opinion. We disagree.\nUnder North Carolina law, an expert may testify,\nin terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless an adverse party requires otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion. The expert may in any event be required to disclose the underlying facts or data on cross-examination.\nN.C. Gen. Stat. 8C-1, rule 705 (1992).\nThus, while rule 705 provides for the disclosure of the underlying facts or data forming the basis of expert testimony upon an adverse party\u2019s request, it permits the trial court to require such disclosure either on direct or cross-examination, or on voir dire before stating the opinion. In the case sub judice, the disclosure of the underlying facts or data forming the basis of the experts\u2019 opinions occurred during direct and cross-examination testimony. Moreover, the defendant has not shown any prejudice from the delay in obtaining this evidence during direct and cross-examination testimony. Accordingly, we find no merit to defendant\u2019s first assignment of error.\nII.\nNext, the defendant contends that the trial court should have dismissed the charges against him because the delay in receiving access to the Durham Community Guidance Clinic\u2019s records violated his constitutional right to due process by hindering his preparation of a defense.\nIn Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963), the United States Supreme Court held that the prosecution\u2019s suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. See id. However, a general request for all Brady information or all exculpatory information does not create a prosecutorial duty to respond with the production of all evidence. See United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct 2392, 2399, 49 L.Ed.2d 342, 351-52 (1976).\nBefore the subject trial, the defendant moved for the production of the confidential records of the Durham Community Guidance Clinic. However, since the State did not have access to these records, the trial court ordered and reviewed in camera the files of the Durham County Department of Social Services which contained the Durham Community Guidance Clinic\u2019s records. Upon its review, the trial court determined that most of these records were not relevant to the matter before the court. Nonetheless, the trial court allowed both the prosecutor and the defense to inspect all of the records. The trial court also allowed the defense to review the State\u2019s subpoenaed records from the Durham Community Guidance Center received after the defendant\u2019s pre-trial discovery motion. In fact, these records were available to the defense during the weekend recess of trial.\nIn denying the defense\u2019s motion, the trial court determined that the defendant had ample time to review the records and offered him more time if needed, stating:\nAnd the court finds that counsel for the defendant has had an opportunity, an adequate opportunity to review any and all records concerning this matter. And the Court further finds as fact that if the defendant needs a delay in trial to go over these records more in order to recall any witnesses to question them about any of these records the Court will be willing to do so.\nThus, the defendant had ample access and adequate time to review the Durham Community Guidance Center\u2019s records in preparing a defense. Because he has failed to show that the State withheld exculpatory evidence in violation of Brady, we reject defendant\u2019s second assignment of error.\nIII.\nThe defendant next asserts that the admission of the child\u2019s hearsay statements made to the school counselor, police detective, and social worker violated his constitutional right to confront witnesses. He argues first that the trial court erred in finding that the child was unavailable to testify. We disagree.\nThe determination of whether a child is competent to testify is a matter within the sound discretion of the trial court. See State v. Ward, 118 N.C. App. 389, 455 S.E.2d 666 (1995). Moreover, \u201c[t]he trial court\u2019s decision will not be reversed on appeal unless it is shown that it could not have been the result of a reasoned decision.\u201d Id. at 394, 455 S.E.2d at 669.\nBecause the defendant has failed to show that the trial court\u2019s decision was not the result of a reasoned decision, we will not disturb the trial court\u2019s finding that the child in this case was unavailable to testify. See State v. Chandler, 324 N.C. 172, 376 S.E.2d 728 (1989) (holding that a four-year-old victim who was unable to respond to questions because of fear was \u201cunavailable\u201d within meaning of hearsay rule and thus, her testimony from defendant\u2019s first trial was admissible in a subsequent retrial).\nNext, the defendant challenges the trial court\u2019s admission of these hearsay statements under the N.C. Gen. Stat. \u00a7 8C-1, Rule 804(b)(5) catchall exception.\nThis catchall exception permits the admission of statements having equivalent guarantees of trustworthiness where a declarant is unavailable. To determine whether the subject statements were admissible under the catchall exception, the trial court conducted a six-step inquiry, under the guidance of State v. Swindler, 339 N.C. 469, 450 S.E.2d 907 (1994), and found that:\n(1) The State gave the defense sufficient notice of intent of its use of these statements;\n(2) These statements were not specifically covered by any of the other exceptions to the hearsay rule under Rules 803 and 804;\n(3) These statements were trustworthy;\n(4) The proffered statements were offered as evidence of a material fact;\n(5) The statements were more probative on the point for which they were offered than any other evidence which the proponent could accrue through reasonable efforts;\n(6) The general purpose of these rules and the best interest of justice would be served by the admission of these statements into evidence.\nSee State v. Swindler, 339 N.C. 469, 473-74, 450 S.E.2d 907, 910 (1994); see also State v. Wagoner, 131 N.C. App. 285, 506 S.E.2d 738, 740 (1998); N.C. Gen. Stat. \u00a7 8C-1, Rule 804(b)(5) (1992).\nReviewing the record on appeal, we find evidence to support the trial court\u2019s assessment as to each of these particular findings which in turn supports the trial court\u2019s decision to allow the hearsay statements under the Rule 804(b)(5) catchall exception.\nNonetheless, we further address the issue of whether th\u00e9 admission of these hearsay statements violated the defendant\u2019s constitutional right to confront the declarant child.\n\u201cThe Confrontation Clauses in the Sixth Amendment to the United States Constitution and Article I Section 23 of the North Carolina Constitution prohibit the State from introducing hearsay evidence in a criminal trial unless the State: (1) demonstrates the necessity for using such testimony, and (2) establishes the inherent trustworthiness of the original declaration.\u201d State v. Waddell, 130 N.C. App. 488, 494, 504 S.E.2d 84, 88 (1998).\n\u201cIn the circumstance where the State\u2019s case depends in the main upon the child sex abuse victim\u2019s statements and the child is incompetent to testify \u2018[t]he unavailability of the victim due to incompetency and the evidentiary importance of the victim\u2019s statements adequately demonstrate the necessity prong of this test.\u201d Waddell, 130 N.C. App. at 494, 504 S.E.2d at 88. (quoting State v. Gregory, 78 N.C. App. 565, 568, 338 S.E.2d 110, 112 (1985)). In the subject case, because the unavailability of the child was due to her incompetency, it was necessary to allow the testimonies of the school counselor, police detective, and social worker. Thus, the necessity requirement was satisfied in the case sub judice.\nIn evaluating whether the hearsay testimony meets the circumstantial guarantees of trustworthiness, the trial court should consider the following factors:\n(1) assurances of the declarant\u2019s personal knowledge of the underlying event, (2) the declarant\u2019s motivation to speak the truth or otherwise, (3) whether the declarant has ever recanted the statement, and (4) the practical availability of the declarant at trial for meaning of cross examination.\nState v. Triplet, 316 N.C. 1, 10-11, 340 S.E.2d 736, 742 (1986).\nOur review of the record in this case, shows that the trial court\u2019s determination that the subject hearsay statements satisfied the circumstantial guarantees of trustworthiness was supported by evidence showing that the child \u2014 as the victim \u2014 had personal knowledge of the underlying incident at issue in this case. Further, there was no evidence in the record that the child had any motive for lying, nor that she had ever recanted these statements. Additionally, it was not practical for the child to testify in this case because of her incompetency.\nMoreover, the trial court\u2019s finding of incompetence under these circumstances did not as a matter of law invalidate the child\u2019s prior statements made with personal knowledge. See State v. Rogers, 109 N.C. App. 491, 498, 428 S.E.2d 220, 224, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1102, 114 S. Ct. 1875, 128 L. Ed.2d 495 (1994) (holding that the trial court\u2019s finding of incompetence is not \u201cinconsistent as a matter of law with a finding that the child may nevertheless be qualified as a declarant out of court to relate truthfully personal information and belief\u201d). Accordingly, we conclude that the second requirement of trustworthiness has also been satisfied.\nIn sum, since the trial court\u2019s admission of these hearsay statements did not infringe upon the defendant\u2019s constitutional right to confront witnesses, we reject the defendant\u2019s third assignment of error.\nIV.\nFinally, the defendant argues that his constitutional right to effective assistance of counsel at trial was violated because his trial attorney failed to object to the social worker\u2019s testimony that the child\u2019s statements were believable. In particular, the social worker stated during cross examination: \u201cI wouldn\u2019t expect a child to make a statement that [her] daddy put [his penis] in [her] mouth because a child wants to protect the people that she\u2019s close to and the people that take care of her. So I wouldn\u2019t have expected her to say it if it didn\u2019t happen.\u201d\nTo establish ineffective assistance of counsel, the defendant must satisfy a two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984). See State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985); State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998). Under this test, the defendant must show that: (1) the counsel\u2019s performance fell below an objective standard of reasonableness as defined by professional norms and (2) the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error. See Lee, 348 N.C. at 491, 501 S.E.2d at 345.\nUnder Rules 405 and 608 of the North Carolina Rides of Evidence, an expert witness may not testify that the prosecuting witness in a sexual abuse trial is believable, see State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986), nor that the child is lying about the alleged sexual assault, see State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986). However, an expert may testify as to the \u201ccharacteristics of sexually abused children\u201d and may express an opinion as to whether the characteristics of the child at issue are \u201cconsistent with\u201d the characteristics of sexually abused children. See State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 366 (1987); State v. Hammond, 112 N.C. App. 454, 461, 435 S.E.2d 798, 802 (1993) (an expert may express her opinion as to whether the victim exhibited characteristics \u201csimilar\u201d to an abused child), disc. review denied, 335 N.C. 562, 441 S.E.2d 126 (1994)).\nIn the instant case, the first part of the social worker\u2019s statements that \u201cI wouldn\u2019t expect a child to make a statement that [her] daddy put [his penis] in [her] mouth because a child wants to protect the people that she\u2019s close to and the people that take care of her\u201d is merely the social worker\u2019s opinion that abused children generally do not falsely accuse their parents \u2014 which is permissible testimony of the characteristics of abused children. The last part of the social worker\u2019s statements that she \u201cwouldn\u2019t have expected her to say it if it didn\u2019t happen\u201d constitutes impermissible expert testimony as to the credibility of this particular child. See State v. Oliver, 85 N.C. App. 1, 11, 354 S.E.2d 527, 533 (holding that an expert may testify as to \u201cthe general credibility of children who report sexual abuse,\u201d but not as to \u201cthe credibility of the specific victim\u201d).\nHowever, under certain circumstances, \u201cotherwise inadmissible evidence may be admissible if the door has been opened by the opposing party\u2019s cross examination of the witness.\u201d State v. Baymon, 336 N.C. 748, 752, 446 S.E.2d 1, 3 (1994). \u201c \u2018Opening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidence would be incompetent or irrelevant had it been offered initially.\u2019 \u201d Id. at 752-53, 446 S.E.2d at 3 (quoting State v. Sexton, 336 N.C. 321, 360, 444 S.E.2d 879, 901 (1994)).\nIn the case at hand, the testimony at issue was given by the social worker in response to the defense counsel\u2019s questions. Specifically, the following colloquy took place at trial:\nQ. You would not expect a five year old to say someone put their dink-a-link in her mouth unless it had happened.\nA. No. Because it is a very shameful thing for a child.\nQ. Unless they had experience before?\nA. I wouldn\u2019t expect a child to make a statement that their daddy put it in their mouth because a child wants to protect the people that she\u2019s close to and the people that take care of her. So. I wouldn\u2019t have expected her to say that if it didn\u2019t happen.\nQ. And unless they have experienced the dink-a-link in their mouth before or seen somebody put a dink-a-link in somebody\u2019s mouth before they wouldn\u2019t even know it ever went on any way, would they?\nThrough this line of questioning, the defense counsel attempted to show that the child\u2019s sexual knowledge resulted from a prior incident of sexual abuse occurring at her mother\u2019s home as oppose to the incident for which the defendant was being tried. Hence, the defense counsel opened the door to the social worker\u2019s testimony as to the child\u2019s statements being believable.\nWe, therefore, hold that the social worker\u2019s testimony was admissible. Consequently, the defendant\u2019s assertion that his counsel\u2019s failure to object to such testimony constituted ineffective assistance of counsel is without merit. See Lee, 348 N.C. at 492, 501 S.E.2d at 345 (stating that \u201c [t]he first part of the Strickland test is not satisfied where defendant cannot even establish that an error occurred\u201d).\nHaving summarily determined that the defendant\u2019s remaining assignments of error lack merit, we conclude that the defendant was given a fair trial, free of prejudicial error.\nNo error.\nJudge GREENE concurs in the result in a separate opinion.\nJudge MARTIN concurs.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge Greene\nconcurring in the result.\nAlthough I concur in the result reached by the majority, I must write separately because I do not agree that our inquiry into whether Defendant received effective assistance of counsel ends with the determination that defense counsel \u201copened the door\u201d to the admissibility of expert testimony as to the credibility of the child victim in this case. To the contrary, I believe opening the door to otherwise inadmissible testimony could be as indicative of ineffective assistance of counsel as the failure to object to its admission.\nThe majority holds, and I agree, that Defendant\u2019s trial counsel \u201copened the door\u201d to admission of this statement by asking the State\u2019s expert witness whether she would \u201cexpect a five year old to say someone put their dink-a-link in her mouth unless ... they had experience [d] [it] before.\u201d I do not believe, however, that our inquiry ends there. We must further determine whether defense counsel\u2019s elicitation of this statement constitutes ineffective assistance of counsel.\nA defendant\u2019s constitutional right to counsel includes the right to effective assistance of counsel. State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). To show that counsel was ineffective, a defendant must satisfy a two-part test. Id. at 562, 324 S.E.2d at 248.\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s error[s] were so serious as to deprive the defendant of a fair trial....\nId. (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). \u201c[E]very effort [should] be made to eliminate the distorting effects of hindsight\u201d in reviewing defense counsel\u2019s effectiveness \u201cand to evaluate the conduct from counsel\u2019s perspective at the time.\u201d State v. Mason, 337 N.C. 165, 177-78, 446 S.E.2d 58, 65 (1994) (quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694). There is a \u201cstrong presumption\u201d that, under the circumstances, the challenged action of defense counsel was sound trial strategy rather than ineffective assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694.\nIn this case, my review of the record reveals defense counsel herein was attempting to elicit favorable information from the expert when asking whether she would expect a five-year-old to make allegations of sexual abuse \u201c[u]nless they had experience^] [it] before.\u201d There was evidence before the jury that Defendant and the child\u2019s mother maintained separate residences, and that the child had previously been sexually abused while in her mother\u2019s care. Testimony of several witnesses, including experts, revealed that the child had told the same story of abuse by Defendant to each of them, and the physical evidence revealed that the child had been sexually abused. Defense counsel was therefore proceeding on the theory that the child was, at best, describing sexual acts committed by adults other than Defendant. Because the evidence supported this reasonable trial strategy, Defendant has not overcome the strong presumption that defense counsel acted reasonably in attempting to elicit this information. Accordingly, I agree with the majority that Defendant was not denied effective assistance of counsel.\nI also write separately to address the majority\u2019s statement that the Confrontation Clause prohibits \u201cthe State from introducing hearsay evidence in a criminal trial unless the State: (1) demonstrates the necessity for using such testimony, and (2) establishes the inherent trustworthiness of the original declaration.\u201d 134 N.C. App. 379, 385, 517 S.E.2d 677, \u2014 (1999). Our Supreme Court has explicitly held: \u201c[T]he Confrontation Clause of the North Carolina Constitution does not require a showing or finding of necessity before hearsay testimony may properly be admitted under a firmly rooted exception to the hearsay rule.\u201d State v. Jackson, 348 N.C. 644, 647, 503 S.E.2d 101, 103 (1998) (emphasis added). Necessity is a prerequisite to admission of hearsay testimony only when the testimony is offered under one of the \u201cresidual\u201d hearsay exceptions (i.e., Rule 803(24) and Rule 804(b)(5) of our Rules of Evidence). See id. at 652, 503 S.E.2d at 106. I agree with the majority that necessity was a prerequisite to admission of the hearsay testimony in this case because the hearsay testimony at issue was offered under the \u201cresidual\u201d hearsay exceptions rather than a \u201cfirmly rooted\u201d exception.", "type": "concurrence", "author": "Judge Greene" } ], "attorneys": [ "Mark E. Edwards for the defendant.", "Michael F. Easley, Attorney General, by Ellen B. Scouten, Special Deputy Attorney General, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. AARON PRETTY\nNo. COA98-1094\n(Filed 3 August 1999)\n1. Evidence\u2014 expert \u2014 underlying basis of opinion \u2014 voir dire not required \u2014 no prejudice from delay\nThe trial court did not err in failing to allow defense counsel to voir dire the State\u2019s expert witnesses before they testified at trial to determine the underlying basis of their opinion since the disclosure of these facts occurred during direct and cross-examination testimony, and defendant failed to show any prejudice from this delay.\n2. Evidence\u2014 hearsay \u2014 unavailable child \u2014 catchall exception\nThe trial court did not err in admitting the hearsay statements of the five-year-old child sex abuse victim in the trial of her father because the findings support the trial court\u2019s six-step inquiry assessing that the statements were admissible under the Rule 804(b)(5) catchall exception.\n3. Constitutional Law\u2014 hearsay \u2014 unavailable witness \u2014 right to confrontation not violated \u2014 incompetency of child\u2014 necessary evidence \u2014 trustworthiness satisfied\nThe trial court did not violate defendant-father\u2019s constitutional right to confront the five-year-old child sex abuse victim when it admitted the child\u2019s hearsay statements because the unavailability of the child was due to her incompetency and the evidentiary importance of the child\u2019s statements demonstrate their necessity. Further, the child victim\u2019s personal knowledge of the underlying incident and the fact she never recanted her statements satisfied the circumstantial guarantees of trustworthiness.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object \u2014 opened the door\nDefense counsel\u2019s failure to object to the social worker\u2019s testimony that the child sex abuse victim\u2019s statements were believable did not constitute ineffective assistance of counsel where defense counsel opened the door to this testimony by attempting to show the child\u2019s sexual knowledge resulted from a prior incident of sexual abuse occurring at her mother\u2019s home as opposed to the incident for which defendant-father was being tried.\nJudge Greene concurring in the result.\nAppeal by defendant from judgment entered 21 September 1993 by Judge J.B. Allen, Superior Court, Durham County. Heard in the Court of Appeals 8 June 1999.\nMark E. Edwards for the defendant.\nMichael F. Easley, Attorney General, by Ellen B. Scouten, Special Deputy Attorney General, for the State." }, "file_name": "0379-01", "first_page_order": 411, "last_page_order": 423 }