{ "id": 11241294, "name": "STATE OF NORTH CAROLINA v. JOHN PHILLIP FORD", "name_abbreviation": "State v. Ford", "decision_date": "2000-02-16", "docket_number": "No. COA99-53", "first_page": "634", "last_page": "642", "citations": [ { "type": "official", "cite": "136 N.C. App. 634" } ], "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": "502 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551245, 551312, 551313, 551120, 551352 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0584-01", "/nc/347/0584-04", "/nc/347/0584-02", "/nc/347/0584-03", "/nc/347/0584-05" ] }, { "cite": "492 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "368" }, { "page": "368" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798972 ], "year": 1997, "pin_cites": [ { "page": "596-97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0592-01" ] }, { "cite": "372 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "323 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560790 ], "year": 1988, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0350-01" ] }, { "cite": "309 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "pin_cites": [ { "page": "774" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "460 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "child's statement regarding child's sexual abuse admissible as excited utterance when made four to five days after the startling event" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917335 ], "year": 1995, "pin_cites": [ { "parenthetical": "child's statement regarding child's sexual abuse admissible as excited utterance when made four to five days after the startling event" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0708-01" ] }, { "cite": "367 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "child's statement to mother regarding sexual abuse made ten hours after leaving defendant's custody held admissible as excited utterance" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524160 ], "year": 1988, "pin_cites": [ { "parenthetical": "child's statement to mother regarding sexual abuse made ten hours after leaving defendant's custody held admissible as excited utterance" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0584-01" ] }, { "cite": "376 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "735" } ], "opinion_index": 0 }, { "cite": "324 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486178 ], "year": 1989, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0172-01" ] }, { "cite": "159 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "311" }, { "page": "311" } ], "opinion_index": 0 }, { "cite": "273 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574745 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "129" }, { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0128-01" ] }, { "cite": "417 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501957, 2498451, 2497272, 2497849, 2501053 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0287-01", "/nc/331/0287-02", "/nc/331/0287-03", "/nc/331/0287-05", "/nc/331/0287-04" ] }, { "cite": "411 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523656 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0675-01" ] }, { "cite": "499 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656721 ], "year": 1998, "pin_cites": [ { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0710-01" ] }, { "cite": "352 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "426" }, { "page": "426" } ], "opinion_index": 0 }, { "cite": "319 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745368 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "89" }, { "page": "88-89" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0084-01" ] }, { "cite": "507 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "307" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200012 ], "year": 1998, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0370-01" ] }, { "cite": "314 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "533" }, { "page": "633", "parenthetical": "finding as evidence of competency that the child knew that if she did not tell the truth she would get a spanking" } ], "opinion_index": 0 }, { "cite": "310 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401091 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "722" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0716-01" ] }, { "cite": "337 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "554", "parenthetical": "quoting State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984)" }, { "page": "555" } ], "opinion_index": 0 }, { "cite": "315 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716382 ], "year": 1985, "pin_cites": [ { "page": "173", "parenthetical": "quoting State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0167-01" ] }, { "cite": "342 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "512" } ], "opinion_index": 0 }, { "cite": "316 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702203 ], "year": 1986, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0497-01" ] }, { "cite": "319 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "quoting Goodwin, 457 U.S. at 382, n. 14, 73 L. Ed. 2d at 86" } ], "opinion_index": 0 }, { "cite": "311 N.C. 767", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682529, 4686537, 4683374, 4682478, 4679544 ], "year": 1984, "pin_cites": [ { "parenthetical": "quoting Goodwin, 457 U.S. at 382, n. 14, 73 L. Ed. 2d at 86" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0767-05", "/nc/311/0767-03", "/nc/311/0767-01", "/nc/311/0767-02", "/nc/311/0767-04" ] }, { "cite": "315 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "509", "parenthetical": "quoting Goodwin, 457 U.S. at 382, n. 14, 73 L. Ed. 2d at 86" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527265 ], "year": 1984, "pin_cites": [ { "page": "383", "parenthetical": "quoting Goodwin, 457 U.S. at 382, n. 14, 73 L. Ed. 2d at 86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0358-01" ] }, { "cite": "457 U.S. 368", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189309 ], "weight": 12, "year": 1982, "pin_cites": [ { "page": "371" }, { "page": "79" }, { "page": "379-80" }, { "page": "85" }, { "page": "382, n. 14" }, { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/us/457/0368-01" ] }, { "cite": "434 U.S. 357", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183444 ], "weight": 5, "year": 1978, "pin_cites": [ { "parenthetical": "footnotes omitted" }, { "parenthetical": "footnotes omitted" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/us/434/0357-01" ] } ], "analysis": { "cardinality": 799, "char_count": 17469, "ocr_confidence": 0.762, "pagerank": { "raw": 1.1124948736516194e-07, "percentile": 0.5710479645724519 }, "sha256": "833c310bf1f066741fcf0b298a1fa3df386e9bcd6ac1ad19ee5009cab0b65b04", "simhash": "1:8c3b402b0a7f85a2", "word_count": 2891 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN PHILLIP FORD" ], "opinions": [ { "text": "WALKER, Judge.\nDefendant was convicted of first degree sexual offense and taking indecent liberties with a child. He was sentenced to a minimum of 360 months and a maximum of 441 months in prison.\nThe State\u2019s evidence tended to show the following: On 6 January 1997, the child (A.C.) was at the home of Emma Williams. For several years, Williams provided day care for A.C. while A.C.\u2019s mother was at work. On this day, Williams was also looking after her great-grandson, J.P., and great-granddaughter, J.F. Defendant is the father of J.P. and J.F. A.C. was four years old at the time of the incident. Williams went to a bank with the defendant\u2019s wife and left defendant to watch the children while she was gone. Defendant took A.C. into the bathroom and sexually attacked her. The victim\u2019s mother picked her up at the end of the day and asked her about her day. The victim initially stated she did not want to talk about her day, but she eventually told her mother that she had choked that day because \u201cJ.P.\u2019s dad\u201d put \u201chis pee thing\u201d in her mouth. The next day, the victim repeated the same story to hospital personnel and to the detective investigating the matter.\nAfter a voir dire examination, the trial court found A.C. competent to testify. A.C. testified that \u201cJ.P.\u2019s dad\u201d had put \u201chis pee thing\u201d in her mouth, which choked her. A.C.\u2019s mother testified and corroborated what A.C. had told her about the attack. The social worker, who conducted an interview with A.C. at the hospital, testified that A.C. told her that the defendant \u201cput his pee-pee in her mouth until she choked and coughed on his pee-pee and then he offered her candy.\u201d The investigating detective testified that A.C. made similar statements to him regarding the attack.\nDefendant testified that, on this occasion, he went to the bathroom and that A.C. and his daughter entered the bathroom while he was there. Defendant denied ever touching A.C. The trial court denied defendant\u2019s motion to dismiss the charges.\nPrior to trial, defendant moved to dismiss the charge of first degree sexual offense on the basis of prosecutorial vindictiveness, which was denied by the trial court. Defendant contends the trial court\u2019s denial of his motion was error. Defendant was initially charged with taking indecent liberties with a child. When plea negotiations broke down, defendant was additionally indicted for first degree sexual offense. In denying defendant\u2019s motion, the trial court relied on Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604 (1978), and United States v. Goodwin, 457 U.S. 368, 73 L. Ed. 2d 74 (1982).\nIn Goodwin, the defendant was initially charged with several misdemeanors and petty offenses under federal law. The defendant entered plea negotiations regarding these charges but later refused to plead guilty to the charges and requested a jury trial. Id. at 371, 73 L. Ed. 2d at 79. Approximately six weeks later, the prosecutor sought and received an indictment including one felony count arising out of the same facts which constituted the lesser offenses. Id. The jury convicted the defendant on the felony count and the defendant moved to set aside the verdict based on prosecutorial vindictiveness. Id. In declining to apply a presumption of vindictiveness or make a finding of it, the Court recognized that:\n\u2018additional\u2019 charges obtained by a prosecutor could not necessarily be characterized as an impermissible \u2018penalty.\u2019 Since charges brought in an original indictment may be abandoned by the prosecutor in the course of plea negotiation \u2014 in often what is clearly a \u2018benefit\u2019 to the defendant \u2014 changes in the charging decision that occur in the context of plea negotiation are an inaccurate measure of improper prosecutorial \u2018vindictiveness.\u2019 An initial indictment \u2014 from which the prosecutor embarks on a course of plea negotiation \u2014 does not necessarily define the extent of the legitimate interest in prosecution. For just as a prosecutor may forego legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.\n457 U.S. at 379-80, 73 L. Ed. 2d at 84 (citing Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604 (1978) (footnotes omitted). Also, the Court stated that \u201ca change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pre-trial decision.\u201d Id. at 381, 73 L. Ed. 2d at 85.\nHere, the decision to charge defendant with first degree sexual offense was made before trial on the present charge. Defendant argues that since the State\u2019s indictment for first degree sexual offense was added only after plea negotiations broke down, a showing of vindictiveness was made. The State contends that the elements of first degree sexual offense have always been present and denies the failure to negotiate a plea played a part in the State seeking the indictment for first degree sexual offense.\n\u201cTo presume that every case is complete at the time an initial charge is filed [...] is to presume that every-prosecutor is infallible\u2014 an assumption that would ignore the practical restraints imposed by often limited prosecutorial resources.\u201d State v. Rogers, 68 N.C. App. 358, 383, 315 S.E.2d 492, 509, cert. denied, 311 N.C. 767, 319 S.E.2d 284 (1984) (quoting Goodwin, 457 U.S. at 382, n. 14, 73 L. Ed. 2d at 86). Additionally, it must be remembered that nothing else appearing, \u201ca mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.\u201d Id. Finding Goodwin controlling, defendant\u2019s assertions, without more, do not establish a showing of prosecutorial vindictiveness.\nDefendant next contends the trial court erred in finding A.C. competent to testify, arguing that she did not know what it meant to put her hand on the Bible and swear to tell the truth. The voir dire examination of A.C. produced, in part, the following:\nQ: Okay. And do you know what a lie is, [A.C.]?\nA: If you don\u2019t tell the truth, you\u2019ll go to jail.\nQ: And what happens if you don\u2019t tell the truth to your mommy?\nA: I get a whipping.\nQ: [A.C.], do you promise to tell the truth today about what happened between you and [the defendant]?\nA: Yes.\nQ: Do you know what it means when you put your hand on the Bible?\nA: No.\nAt the conclusion of the voir dire examination, the trial court found that:\nIn this matter, the Court has had an opportunity to observe the testimony of [A.C.] That the Court finds for the record that she was asked a series of questions by the prosecution and by the defense. That her answers to the questions were reasonable in light of the questions asked. That when asked specific questions, she appeared to know the answers to those questions including questions concerning her family, her.school, and a demonstration in the courtroom involving a pen and a cup. Including all those matters and the age of the child, the Court finds that she is a competent witness and entitled to testify in these proceedings and that her credibility should be for the jury to determine.\nThe competency of witnesses is determined by Rule 601 of the North Carolina Evidence Code, which provides in pertinent part that \u201c[e]very person is competent to be a witness\u201d except \u201cwhen the court determines that he is .. . (2) incapable of understanding the duty of a witness to tell the truth.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 601 (a), (b) (1999); State v. Gordon, 316 N.C. 497, 502, 342 S.E.2d 509, 512 (1986). Our Supreme Court has defined competency as \u201cthe capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide.\u201d State v. Fearing, 315 N.C. 167, 173, 337 S.E.2d 551, 554 (1985) (quoting State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984)). The trial court \u201cmust rely on [its] personal observation of the child\u2019s demeanor and responses to inquiry on voir dire examination.\u201d Id. at 174, 337 S.E.2d at 555. The competency of a witness is a matter which rests in the sound discretion of the trial judge. State v. Andrews, 131 N.C. App. 370, 373, 507 S.E.2d 305, 307 (1998). \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).\nThe testimony in this case is similar to that in Hicks, where our Supreme Court affirmed the trial court\u2019s finding that a seven year old was competent to testify. The Court stated:\n[Although [the victim] did not understand her obligation to tell the truth from a religious point of view, and although she had no fear of certain retribution for mendacity, she knew the difference between the truth and a lie .... She indicated a capacity to understand and relate facts to the jury concerning defendant\u2019s assaults upon her, and a comprehension of the difference between truth and untruth. She also . . . affirmed her intention to [tell the truth].\n319 N.C. at 88-89, 352 S.E.2d at 426.\nA.C.\u2019s testimony met the standard of Rule 601 and thus we find there was no abuse of discretion by the trial court in finding her competent to testify. See Jones, 310 N.C. at 722, 314 S.E.2d at 633 (finding as evidence of competency that the child knew that if she did not tell the truth she would get a spanking).\nDefendant also argues that the trial court erred in admitting hearsay testimony. A.C.\u2019s mother testified that, while in the car after picking her up from day care, A.C. told her about the defendant\u2019s attack. While conceding the failure to object at trial, defendant argues that the trial court\u2019s admission of this hearsay testimony was plain and reversible error.\nEvidence of an out-of-court statement of a witness, related by the in-court testimony of another witness, may be offered as substantive evidence or offered for the limited purpose of corroborating the credibility of the witness making the out-of-court statement. See State v. Ferebee, 128 N.C. App. 710, 715, 499 S.E.2d 459, 462 (1998). Although the better practice calls for the party offering the evidence to specify the purpose for which the evidence is offered, unless challenged there is no requirement that the purpose be specified. See State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991), disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992). If the offering party does not designate the purpose for which the evidence is offered, the evidence is admissible if it qualifies either as corroborative evidence or competent substantive evidence. State v. Goodson, 273 N.C. 128, 129, 159 S.E.2d 310, 311 (1968); State v. Chandler, 324 N.C. 172, 182, 376 S.E.2d 728, 735 (1989). If admitted only for corroborative purposes and requested by a party, the trial court is required to instruct the jury that the evidence may be considered by them for the limited purpose of corroborating the witness making the out-of-court statement. Goodson, 273 N.C. at 129, 159 S.E.2d at 311. The trial court is not required to provide a limiting instruction unless requested by the party objecting to the use of the evidence as substantive evidence. Id.\nIn this case, although the State did not specify the purpose for which it offered A.C.\u2019s mother\u2019s testimony about A.C.\u2019s out-of-court statement and defendant did not request a limiting instruction, the trial court, in its final instructions to the jury, informed the jury that evidence of any out-of-court statement was to be received for corroborative purposes only. In that this testimony did tend to corroborate A.C.\u2019s in-court testimony, it was properly admitted for this purpose. In any event, we note that A.C.\u2019s mother\u2019s testimony relating the child\u2019s out-of-court statements could have qualified as substantive evidence under the excited utterance exception of Rule 803(2). See State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988) (child\u2019s statement to mother regarding sexual abuse made ten hours after leaving defendant\u2019s custody held admissible as excited utterance); State v. Thomas, 119 N.C. App. 708, 460 S.E.2d 349 (1995) (child\u2019s statement regarding child\u2019s sexual abuse admissible as excited utterance when made four to five days after the startling event).\nFinally, defendant contends that the trial court erred in denying his motions to dismiss for insufficient evidence. Defendant argues that A.C.\u2019s inability to identify defendant in court and her inherently incredible testimony was not sufficient to justify submitting the case to the jury.\nOn a defendant\u2019s motion to dismiss for insufficiency of the evidence, the trial court must consider \u201cwhether there is substantial evidence of each essential element of the offense charged, or of a lesser included offense of that charged.\u201d State v. Robbins, 309 N.C. 771, 774, 309 S.E.2d 188, 190 (1983). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference. State v. Wright, 127 N.C. App. 592, 596-97, 492 S.E.2d 365, 368 (1997), disc. review allowed, 347 N.C. 584, 502 S.E.2d 616 (1998). Further, if the trial court determines that a reasonable inference of the defendant\u2019s guilt may be drawn from the evidence, it must deny the defendant\u2019s motion even though the evidence may also support reasonable inferences of the defendant\u2019s innocence. Id. at 597, 492 S.E.2d at 368.\nA.C.\u2019s testimony that \u201cJ.P.\u2019s dad\u201d sexually attacked her was corroborated by her mother, the social worker, and the detective. Williams testified that she left A.C. in the care of the defendant at her home. Taken in the light most favorable to the State, there was sufficient evidence from which the trial court could deny defendant\u2019s motion to dismiss.\nNo error.\nJudges GREENE and TIMMONS-GOODSON concur.\n. The evidence would qualify as substantive evidence if it was offered for the truth of the matter asserted and qualified as an exception under our hearsay rules. N.C. Gen. Stat. \u00a7 8C-1, Rule 803 (1999).\n. If offered simply as corroborative evidence and admitted for this limited purpose, the evidence does not constitute hearsay evidence because it is not offered to prove the truth of the prior out-of-court statement. As such this evidence does not qualify as an exception to the hearsay rale.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Sue Y. Little, for the State.", "Urs R. Gsteiger for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN PHILLIP FORD\nNo. COA99-53\n(Filed 16 February 2000)\n1. Criminal Law\u2014 prosecutorial vindictiveness \u2014 additional charge\nThe trial court did not err in denying defendant\u2019s motion to dismiss a charge of first-degree sexual offense based on prosecu-torial vindictiveness when defendant was initially charged with taking indecent liberties with a child before plea negotiations broke down because the decision to charge defendant with first-degree sexual offense was made before trial and defendant\u2019s assertions, without more, do not establish a showing of prosecu-torial vindictiveness.\n2. Witnesses\u2014 child \u2014 competency\nThe trial court did not abuse its discretion in a first-degree sexual offense and taking indecent liberties with a child case by finding the four-year-old female victim competent to testify, even though she did not know what it meant to put her hand on the Bible and swear to tell the truth, because voir dire examination revealed that she knew what it meant to tell the truth since she stated, among other things, that she would get a spanking if she did not tell the truth. N.C.G.S. \u00a7 8C-1, Rule 601.\n3. Evidence\u2014 hearsay \u2014 corroboration\u2014excited utterance\nThe trial court did not commit plain error in a first-degree sexual offense and taking indecent liberties with a child case by admitting the testimony of the minor victim\u2019s mother, relating what the minor victim said about the attack when the child was picked up from day care, because: (1) even though the State did not specify the purpose for which the testimony was offered and defendant did not object or request a limiting instruction, the trial court informed the jury during its final instruction that the evidence of any out-of-court statement was to be received for corroborative purposes only, and this testimony did tend to corroborate the victim\u2019s in-court testimony; and (2) this testimony could have qualified as substantive evidence under the excited utterance exception of N.C.G.S. \u00a7 8C-1, Rule 803(2).\n4. Sexual Offenses\u2014 first-degree sexual offense \u2014 indecent liberties \u2014 sufficiency of evidence\nThe trial court did not err in a first-degree sexual offense and taking indecent liberties with a child case by denying defendant\u2019s motion to dismiss because viewed in the light most favorable to the State, the evidence reveals: (1) the victim\u2019s testimony that defendant sexually attacked her was corroborated by the victim\u2019s mother, the social worker, and the detective; and (2) a witness testified she left the victim alone in defendant\u2019s care.\nAppeal by defendant from judgment entered 30 July 1998 by Judge Thomas W. Ross in Forsyth County Superior Court. Heard in the Court of Appeals 26 October 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Sue Y. Little, for the State.\nUrs R. Gsteiger for defendant-appellant." }, "file_name": "0634-01", "first_page_order": 668, "last_page_order": 676 }