{ "id": 8371819, "name": "STATE OF NORTH CAROLINA v. TERRY J. BURGESS AKA TERRY JOEL COOPER BURGESS", "name_abbreviation": "State v. Burgess", "decision_date": "2007-01-02", "docket_number": "No. COA05-1529", "first_page": "27", "last_page": "41", "citations": [ { "type": "official", "cite": "181 N.C. App. 27" } ], "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": "636 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637133, 12637134, 12637135 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/636/0813-01", "/se2d/636/0813-02", "/se2d/636/0813-03" ] }, { "cite": "632 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636318 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0498-01" ] }, { "cite": "627 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635399 ], "year": 2006, "pin_cites": [ { "parenthetical": "Lawrence II" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0609-01" ] }, { "cite": "627 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635401 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/627/0615-01" ] }, { "cite": "619 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634040, 12634041, 12634042 ], "year": 2005, "pin_cites": [ { "parenthetical": "internal citations and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0854-01", "/se2d/619/0854-02", "/se2d/619/0854-03" ] }, { "cite": "614 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633129 ], "year": 2005, "pin_cites": [ { "page": "316", "parenthetical": "internal citations and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0313-01" ] }, { "cite": "616 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633459 ], "year": 2005, "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0001-01" ] }, { "cite": "616 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633599 ], "year": 2005, "pin_cites": [ { "page": "619", "parenthetical": "reaching the defendant's assignment of error where Rule 103 was presumed to be constitutional at the time of trial" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0615-01" ] }, { "cite": "615 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633348 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "692-93" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0688-01" ] }, { "cite": "489 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "186" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794356 ], "year": 1997, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0252-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "468 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "237", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "343 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798779 ], "year": 1996, "pin_cites": [ { "page": "36", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0029-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "61", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "236", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "289 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "362" } ], "opinion_index": 0 }, { "cite": "305 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569965 ], "year": 1982, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0378-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "337 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "554-55" } ], "opinion_index": 0 }, { "cite": "315 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716382 ], "year": 1985, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0167-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "360 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790179, 3789479, 3790731, 3791023, 3787343, 3795793, 3793041, 3794710, 3787542 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0650-08", "/nc/360/0650-09", "/nc/360/0650-02", "/nc/360/0650-06", "/nc/360/0650-03", "/nc/360/0650-01", "/nc/360/0650-07", "/nc/360/0650-05", "/nc/360/0650-04" ] }, { "cite": "178 N.C. App. 78", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376280 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/178/0078-01" ] }, { "cite": "360 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788582 ], "year": 2006, "pin_cites": [ { "parenthetical": "Lawrence II" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0368-01" ] }, { "cite": "360 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794875 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0393-01" ] }, { "cite": "599 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "165 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8999162 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/165/0548-01" ] }, { "cite": "359 N.C. 854", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794241, 3795978, 3795640, 3794159, 3804820, 3803221, 3797622, 3804214, 3801560, 3797850, 3798013 ], "year": 2005, "pin_cites": [ { "parenthetical": "internal citations and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0854-03", "/nc/359/0854-06", "/nc/359/0854-05", "/nc/359/0854-11", "/nc/359/0854-09", "/nc/359/0854-08", "/nc/359/0854-07", "/nc/359/0854-01", "/nc/359/0854-04", "/nc/359/0854-02", "/nc/359/0854-10" ] }, { "cite": "170 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006213 ], "year": 2005, "pin_cites": [ { "page": "589", "parenthetical": "internal citations and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0584-01" ] }, { "cite": "595 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "718" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896816 ], "year": 2004, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0254-01" ] }, { "cite": "463 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "\"In the circumstances of this case, we do not believe the passage of four or five days detracts from the 'spontaneity' of [the child's] response.\"" } ], "opinion_index": 0 }, { "cite": "342 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795944, 795980, 796020, 795902, 796063 ], "year": 1995, "pin_cites": [ { "parenthetical": "\"In the circumstances of this case, we do not believe the passage of four or five days detracts from the 'spontaneity' of [the child's] response.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0196-02", "/nc/342/0196-03", "/nc/342/0196-01", "/nc/342/0196-04", "/nc/342/0196-05" ] }, { "cite": "460 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "353", "parenthetical": "\"In the circumstances of this case, we do not believe the passage of four or five days detracts from the 'spontaneity' of [the child's] response.\"" } ], "opinion_index": 0 }, { "cite": "119 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "year": 1995, "pin_cites": [ { "page": "713", "parenthetical": "\"In the circumstances of this case, we do not believe the passage of four or five days detracts from the 'spontaneity' of [the child's] response.\"" } ], "opinion_index": 0 }, { "cite": "504 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "801", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470144 ], "year": 1998, "pin_cites": [ { "page": "710", "parenthetical": "internal citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0702-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "841" }, { "page": "843", "parenthetical": "statements made by small children \"between two and three days\" after the startling event were properly admitted pursuant to Rule 803(2)" } ], "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": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "561 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220001, 220008, 219916, 219925, 219991 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0288-04", "/nc/355/0288-05", "/nc/355/0288-02", "/nc/355/0288-03", "/nc/355/0288-01" ] }, { "cite": "557 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363550 ], "year": 2001, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0029-01" ] }, { "cite": "172 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8318869 ], "year": 2005, "pin_cites": [ { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0097-01" ] }, { "cite": "161 L. Ed. 2d 737", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "544 U.S. 982", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5874339, 5870103, 5880101, 5867654, 5883943, 5889629, 5869963, 5902317, 3537662, 5869172, 5881815, 3538585, 5922106, 5889341, 5869630 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/544/0982-04", "/us/544/0982-07", "/us/544/0982-09", "/us/544/0982-14", "/us/544/0982-08", "/us/544/0982-12", "/us/544/0982-10", "/us/544/0982-03", "/us/544/0982-15", "/us/544/0982-13", "/us/544/0982-05", "/us/544/0982-01", "/us/544/0982-11", "/us/544/0982-02", "/us/544/0982-06" ] }, { "cite": "523 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "667" }, { "page": "669" }, { "page": "669" } ], "opinion_index": 0 }, { "cite": "351 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155670 ], "year": 2000, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0277-01" ] }, { "cite": "172 N.C. App. 801", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321543 ], "year": 2005, "pin_cites": [ { "page": "806", "parenthetical": "reaching the defendant's assignment of error where Rule 103 was presumed to be constitutional at the time of trial" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0801-01" ] }, { "cite": "171 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438167 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "524" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0518-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 1165, "char_count": 32768, "ocr_confidence": 0.754, "pagerank": { "raw": 9.162659086142635e-08, "percentile": 0.5084916147620961 }, "sha256": "c7180b5e4c60c5c3ab1bfcfb5ede02a81d9e1bc77fe07ce3ebde198e8543ee31", "simhash": "1:852b342a766356d2", "word_count": 5361 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY J. BURGESS AKA TERRY JOEL COOPER BURGESS" ], "opinions": [ { "text": "McGEE, Judge.\nTerry J. Burgess (Defendant) was convicted of six counts of first-degree sexual offense of a child under the age of thirteen years and sentenced to three consecutive sentences of a minimum of 288 months and a maximum of 355 months in prison. Defendant appeals.\nPrior to trial, Defendant moved to suppress certain videotaped interviews between pediatric nurses and the victims as inadmissible hearsay. The trial court denied Defendant\u2019s motion, and found the videotaped interviews admissible as statements made to obtain medical diagnosis or treatment pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4).\nAt trial, the State\u2019s evidence tended to show the following. S.V. and V.V., both minors, lived with their parents, A.V. and F.V., in Cabarrus County. In June 2002, AV.\u2019s sister, S.P., S.P.\u2019s two minor children, Y.V. and A.P., and Defendant relocated to North Carolina from Tennessee. They moved in with A.V. and her family. Defendant is not the father of Y.V. and A.P., and the children referred to Defendant as \u201cBird\u201d or \u201cUncle Bird.\u201d For a time while the two families were living together, Defendant was the only adult not employed outside the home. In mid-September 2002, Defendant, S.P., Y.V., and A.P. rented a nearby mobile home. S.P. continued to work outside the home and Defendant remained unemployed. Defendant watched Y.V. and A.P., and during September and October 2002, A.V. and F.V. paid Defendant to babysit V.V.\nS.P. observed Y.V. placing her dolls in a suggestive position in April 2003 and made an appointment for Y.V. and A.P. at the Children\u2019s Advocacy Center at NorthEast Medical Center (the Children\u2019s Center). Defendant was later arrested and charged with eight counts of first-degree sexual offense. S.V. and V.V. were also seen at the Children\u2019s Center shortly thereafter.\nAt trial, the State offered the testimony of S.P. to explain the incident which led her to take Y.V. and A.P. to the Children\u2019s Center. Defendant objected to this testimony as inadmissible hearsay. After a voir dire hearing outside the presence of the jury, the trial court concluded the testimony was admissible as an excited utterance under N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2). S.P. testified before the jury that while she was in the car with Y.V. one evening in late April 2003, S.P. saw Y.V. position the head of one of her dolls near the genitalia of another doll. S.P. told Y.V. not to do that because it was \u201cnasty[.]\u201d The following morning, S.P. asked Y.V. if \u201canybody was touching her privates[.]\u201d Y.V. replied that \u201cBird\u201d was in Y.V.\u2019s room the night before and that he \u201chad touched her private and rubbed it\u201d and that \u201che scared her.\u201d When questioned by A.V. later in the day, Y.V. said \u201cBird\u201d had \u201crubbed her privates\u201d the night before while her mother was sleeping.\nThe State proffered the testimony of Y.V. After voir dire, the trial judge found Y.V., who was five years old at the time of trial, competent to testify. However, the trial court stated that it did not believe that Y.V. would be able to assist the jury with any substantive issues. The State called Y.V. to the stand in the presence of the jury to demonstrate her competency. While on the stand, Y.V. stated her age, counted to eleven, recited the alphabet, and demonstrated an ability to determine whether certain statements were the truth or lies. Defendant did not ask any questions of Y.V.\nCindy Fink (Nurse Fink), a nurse with the Children\u2019s Center, testified that she interviewed Y.V. before Y.V. was examined by the pediatrician. Nurse Fink testified that during this interview, Y.V. was informed that she was at the Children\u2019s Center for a check up with the doctor. Nurse Fink further testified that when she showed Y.V. a picture of a little girl, Y.V. indicated genitalia on the picture as her \u201cprivates\u201d and told Nurse Fink that \u201cBird\u201d had \u201crubbed it.\u201d Y.V. also said that \u201csomeone\u201d had touched her on her \u201chiney.\u201d A videotape of Nurse Fink\u2019s interview with Y.V. was shown to the jury.\nThe State also proffered the testimony of S.V., who was eight years old at the time of trial. The trial court found S.V. to be a competent witness. S.V. identified Defendant as \u201cBird\u201d while on the witness stand, and testified that \u201cBird\u201d touched her on her \u201cprivate . . . [i]n the bathroom\u201d of her house. S.V. testified she did not remember seeing Defendant touch her brother, V.V., or her cousins, Y.V. and A.P. Defendant asked no questions of S.V.\nSheri Cook (Nurse Cook), a nurse with the Children\u2019s Center, testified that she interviewed S.V. before S.V. was examined by the pediatrician. In the interview, S.V. stated that she \u201cwanted Uncle Bird to stop bad stuff like touching privates.\u201d A videotape of the interview was shown to the jury. During the recorded interview with Nurse Cook, S.V. said no one ever touched her \u201cprivate parts,\u201d but then also said Defendant only touched Y.V.\u2019s \u201cprivates.\u201d When asked how she knew that, S.V. replied that \u201c[her] mind just told [her].\u201d\nThe State attempted to admit into evidence a second videotaped interview, recorded six days after S.V.\u2019s initial visit to the Children\u2019s Center, as a recorded recollection, or alternatively, pursuant to the residual hearsay exception. At this second interview, a police detective was present and spoke with S.V. The trial court denied the State\u2019s request to admit the second videotape.\nDetective Carlos Roger Landers (Detective Landers), an investigator with the Concord Police Department, testified that he interviewed S.V. When Detective Landers asked S.V. if Defendant had touched her, S.V. nodded her head affirmatively, and pointed to her vaginal area.\nV.V., four years old at the time of trial, was also found to be a competent witness by the trial court. V.V. testified that \u201cBird\u201d touched him on- his \u201cprivate\u201d in the bathroom of V.V.\u2019s house, and V.V. identified \u201cBird\u201d as Defendant in the courtroom. T.275-76. Defendant asked no questions of V.V.\nJulie Brafford (Nurse Brafford), a nurse with the Children\u2019s Center, interviewed V.V. before V.V. was examined by the pediatrician. During the interview, V.V. told Nurse Brafford that \u201cUncle Bird peed on [V.V.\u2019s] back and butt and [that it] tickled.\u201d V.V. also said that \u201cUncle Bird\u201d touched him on his \u201cwinkie\u201d and his \u201cbutt\u201d in the bathroom of their house. While demonstrating his knowledge of body parts, V.V. named his genitalia \u201cwinkie\u201d and his buttocks \u201chiney or butt.\u201d A videotape of the interview was played for the jury.\nPatricia Mahaney (Mahaney), a licensed clinical social worker with NorthEast Psychiatric and Psychological Institute, testified for the State as an expert in the counseling and behavior of sexually abused children. Mahaney observed S.V. at a number of counseling sessions from June 2003 through August 2003, and testified that in her opinion S.V. exhibited some characteristics of post-traumatic stress, \u201cthe technical name for trauma related to abuse\u201d and S.V.\u2019s behavior was consistent with a child who had been sexually abused. Mahaney testified that she also saw V.V. during this time and that he told her that \u201cUncle Bird\u201d had touched his \u201cprivates, [his] winkie and [his] butt[,]\u201d at more than one of their sessions. Mahaney also offered her opinion that V.V\u2019s behavior was consistent with a child who had been sexually abused.\nDr. Carol Soucie (Dr. Soucie), a pediatrician with Piedmont Pediatric Clinic, testified for the State as an expert in general pediatrics. Dr. Soucie examined Y.V., S.V., and V.V. after each child was interviewed by a nurse. Dr. Soucie also examined A.P. who was not interviewed by a nurse because he was not yet verbal. Dr. Soucie testified that her examination of Y.V. revealed no abnormal findings, except during Y.V.\u2019s genital exam.- Dr. Soucie found bruising around Y.V.\u2019s vaginal opening, thickened areas of Y.V.\u2019s hymen, and small scars at two different positions on Y.V.\u2019s anus. Dr. Soucie testified that these physical findings were consistent with sexual abuse and that in her opinion there \u201cwas definite abuse.\u201d Dr. Soucie\u2019s examination of S.V. revealed that S.V.\u2019s vaginal area had \u201can area that was very thinned out and irregular as well as areas that were thickened from which we see oftentimes with repeated penetration.\u201d Dr. Soucie also observed scars on S.V.\u2019s perianal area that Dr. Soucie estimated were approximately three to four months old. Dr. Soucie testified that the physical findings from her examination of S.V. were consistent with sexual abuse. As to V.V., Dr. Soucie observed a scar in V.V.\u2019s anus and a \u201cpersistent kind of like a divot in the perianal area\u201d which she attributed to repeated penetration. Dr. Soucie testified that these physical findings were \u201cdefinitely\u201d consistent with anal penetration and repeated sexual abuse.\nDefendant testified that he moved with S.P. .to the home of A.V. and F.V., and that he helped to take care of the children. He denied ever being alone with S.V. and V.V. After Defendant and S.P. moved to their own home, Defendant watched Y.V. and A.P. for a short period of time before he began working with a roofing company from 5:00 a.m. to 7:00 p.m. In January 2003, Defendant began a new position with hours from 8:00 a.m. to 3:00 p.m, which he held until he was arrested. Defendant denied ever being alone with S.V. and V.V. during the time he lived in their home. Defendant denied doing anything of an improper or sexual nature to any of the children.\nAt the close of all the evidence, Defendant moved to dismiss each of the charges for insufficient evidence. The trial court denied the motion as to the charges pertaining to Y.V., S.V., and V.V., but granted the motion as to the charges pertaining to A.P. At the charge conference, Defendant requested an instruction on the lesser included offense of attempted sexual offense against a child. The trial court concluded that there was no substantial evidence, either direct or circumstantial, from which a jury could infer attempted sexual offense and therefore refused to give the instruction.\nDefendant first argues that his Sixth Amendment confrontation rights were violated when the trial court denied his motion to suppress the videotaped interviews between the nurses at the Children\u2019s Center and Y.V., S.V., and V.V. Defendant argues the statements of the children are testimonial in nature and barred by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). Further, Defendant urges that the videotaped statements are inadmissible hearsay not properly admitted as statements made for the purpose of medical diagnosis or treatment pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4). We disagree.\nIn Crawford, the United States Supreme Court held that \u201c[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.\u201d Id. at 68, 158 L. Ed. 2d at 203. The Supreme Court also noted, however, that \u201cwhen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.\u201d Id. at 59-60 n.9, 158 L. Ed. 2d at 197-98 n.9. Thus, to be barred by Crawford, the evidence offered must be testimonial, the declarant must be unavailable, and the defendant must have had no prior opportunity for cross-examination.\nThe State first argues that Defendant failed to properly preserve this issue for our review because Defendant failed to object when the videotapes were offered into evidence. We disagree. At the time of Defendant\u2019s pre-trial motion, the General Assembly had passed N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2005), which states in part \u201c[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.\u201d In State v. Tutt, 171 N.C. App. 518, 524, 615 S.E.2d 688, 692-93 (2005), this Court held that the statute failed because \u201cN.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) is inconsistent with N.C.R. App. R 10(b)(1)[.]\u201d However, at the time Defendant moved to suppress the videotapes, Rule 103 was presumed constitutional, and in our discretion we elect to review Defendant\u2019s assignment of error. See State v. Baublitz, 172 N.C. App. 801, 806, 616 S.E.2d 615, 619 (2005) (reaching the defendant\u2019s assignment of error where Rule 103 was presumed to be constitutional at the time of trial); Tutt, 171 N.C. App. at 524, 615 S.E.2d at 693.\nNonetheless, we find Defendant\u2019s Crawford argument unpersuasive. In the present case, S.V., V.V., and Y.V. each took the stand at trial and were therefore available for cross-examination. Defendant did not argue before the trial court, and does not argue before this Court, that the witnesses were \u201cunavailable\u201d for cross-examination. Accordingly, there was no violation of Defendant\u2019s right to confrontation under Crawford.\nDefendant also argues that the interviews were improperly admitted pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4). We disagree.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803 (2005) states\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n. . .\n(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.\nThe test to determine whether statements are admissible under Rule 803(4) is a two-part test: \u201c(1) whether the declarant\u2019s statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant\u2019s statements were reasonably pertinent to diagnosis or treatment.\u201d State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000), cert. denied, Hinnant v. North Carolina, 544 U.S. 982, 161 L. Ed. 2d 737 (2005). Testimony meeting this test \u201cis considered inherently reliable because of the declarant\u2019s motivation to tell the truth in order to receive proper treatment.\u201d Id. at 286, 523 S.E.2d at 669. Thus, \u201cthe proponent of Rule 803(4) testimony must affirmatively establish that the declarant had the requisite intent by demonstrating that the declarant made the statements understanding that they would lead to medical diagnosis or treatment.\u201d Id. at 287, 523 S.E.2d at 669.\nIn State v. Lewis, 172 N.C. App. 97, 103-04, 616 S.E.2d 1, 5 (2005), and State v. Isenberg, 148 N.C. App. 29, 38, 557 S.E.2d 568, 574 (2001), disc. review denied, 355 N.C. 288, 561 S.E.2d 268 (2002), this Court found that the Hinnant requirements were satisfied where the challenged statements were made to pediatric nurses at the Children\u2019s Center prior to examination by the doctor. We find the present case indistinguishable from Lewis and Isenberg, and affirm the trial court\u2019s admission of the videotaped interviews pursuant to Rule 803(4).\nDefendant next argues the trial court erroneously admitted, as an excited utterance under N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2), the testimony of Y.V.\u2019s mother that Defendant was in Y.V\u2019s room the previous night and had touched and scared Y.V. The trial court admitted the testimony as an excited utterance, finding Y.V.\u2019s statements were made after a \u201csufficiently startling experience suspending reflective thought and were a spontaneous reaction to questions asked by [S.P.] at a time temporally related to her having yelled at [Y.V.] for having positioned the dolls as she had.\u201d T.48.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803(2) (2005) excepts from the hearsay rule an excited utterance, which is \u201c[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\u201d In State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985), the Supreme Court held that \u201c[i]n order to fall within this hearsay exception, there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u201d In the context of statements made by children, \u201cthere is more flexibility concerning the length of time between the startling event and the making of the statements because the stress and spontaneity upon which the exception is based is often present for longer periods of time in young children than adults.\u201d State v. Boczkowski, 130 N.C. App. 702, 710, 504 S.E.2d 796, 801 (1998) (internal citation and quotation omitted).\nIn the present case, fewer than twenty-four hours had elapsed between the time S.P. yelled at Y.V., the sexual assault, and Y.V.\u2019s statements to her mother. Therefore, the trial court properly admitted the statements as excited utterances. See Smith, 315 N.C. at 90, 337 S.E.2d at 843 (statements made by small children \u201cbetween two and three days\u201d after the startling event were properly admitted pursuant to Rule 803(2)); State v. Thomas, 119 N.C. 708, 713, 460 S.E.2d 349, 353, disc. review denied, 342 N.C. 196, 463 S.E.2d 248 (1995) (\u201cIn the circumstances of this case, we do not believe the passage of four or five days detracts from the \u2018spontaneity\u2019 of [the child\u2019s] response.\u201d).\nDefendant next argues that the trial court erred by. permitting Mahaney to testify that S.V. suffered from post-traumatic stress, or \u201ctrauma related to abuse.\u201d Since Defendant did not object at trial, we analyze this under the plain error standard. N.C.R. App. R 10(c)(4). .\nDefendant cites State v. Bush, 164 N.C. App. 254, 258, 595 S.E.2d 715, 718 (2004) for the proposition that\n[i]n a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding the victim\u2019s credibility.\nWe find this language inapplicable to the present case because in the present case the State presented physical evidence supporting a diagnosis of sexual abuse with regard to each child. Further, \u201c[i]t is well settled that an expert medical witness may render an opinion pursuant to Rule 702 that sexual abuse has in fact occurred if the State establishes a proper foundation, i.e., physical evidence consistent with sexual abuse.\u201d State v. Goforth, 170 N.C. App. 584, 589, 614 S.E.2d 313, 316, cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005) (internal citations and quotation omitted). Further, the trial court instructed the jury that expert opinion testimony that a person suffers from post-traumatic stress syndrome may be considered only if it is found to corroborate a victim\u2019s statements. The trial court further charged: \u201cThe testimony is admitted solely for the purpose of corroboration and not as substantive evidence. You may not convict . . . [Defendant solely on this opinion testimony.\u201d This assignment of error is overruled.\nDefendant next argues that the jury instructions and verdict sheets violated his constitutional right to a unanimous verdict pursuant to N.C. Const. art. 1, \u00a7 24 (\u201cNo person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d). We disagree.\nSpecifically, Defendant argues the verdict sheets were deficient in that the date(s) of the acts alleged were not included, nor was the location of the acts. Therefore, Defendant argues, jurors may not have been unanimous about any particular sex act on a particular day, time, or location. Defendant relies on this Court\u2019s decision in State v. Lawrence, 165 N.C. App. 548, 599 S.E.2d 87 (2004). (Lawrence I), rev\u2019d in part and remanded, 360 N.C. 393, 627 S.E.2d 615 (2006). However, since Defendant filed his brief with this Court, the Supreme Court reversed Lawrence I for the reasons stated in State v. Lawrence, 360 N.C. 368, 627 S.E.2d 609 (2006) (Lawrence II). In Lawrence II, the Supreme Court found a defendant may be unanimously convicted pursuant to the indecent liberties statute even if \u201c(1) the jurors considered a higher number of incidents of immoral or indecent behavior than the number of counts charged, and (2) the indictments lacked specific details to identify the specific incidents\u201d because \u201cwhile one juror might have found some incidents of misconduct and another juror might have found different incidents of misconduct, the jury as a whole found that improper sexual conduct occurred.\u201d Lawrence II, 360 N.C. at 374-75, 627 S.E.2d at 612-13. In State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498, disc review denied, 360 N.C. 650, 636 S.E.2d 813 (2006), this Court applied the same rationale to charges of sex offense and overruled the defendant\u2019s jury unanimity argument where \u201c \u2018the jury was instructed on all issues, including unanimity; [and] separate verdict sheets were submitted to the jury for each charge.\u2019 \u201d Id. at 93-94, 632 S.E.2d at 508 (quoting Lawrence II, 360 N.C. at 376, 627 S.E.2d at 613)). We find these cases controlling and overrule Defendant\u2019s jury unanimity argument.\nDefendant next argues that it was plain error for the trial court to find Y.V., S.V., and V.V. competent to testify. Defendant made no objection to the testimony of any of the three children, and therefore, failed to preserve this error for our review. N.C.R. App. P. 10(b)(1). Accordingly, we review this argument for plain error only. N.C.R. App. P. 10(c)(4). To show plain error, Defendant must demonstrate that \u201cthe claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, ... or [that] the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings[.]\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations and quotations omitted).\nN.C. Gen. Stat. \u00a7 8C-1, Rule 601(a) (2005) provides that \u201c[e]very person is competent to be a witness except as otherwise provided in these rules.\u201d If the trial court determines that the witness is \u201cincapable of expressing himself concerning the matter[,]\u201d or \u201cincapable of understanding the duty of a witness to tell the truth,\u201d then the trial court may disqualify the witness. N.C.G.S. \u00a7 8C-1, Rule 601(b). This determination rests in the sound discretion of the trial court. State v. Fearing, 315 N.C. 167, 173, 337 S.E.2d 551, 554-55 (1985).\nAt trial, Y.V., S.V., and V.V., each took the stand outside the presence of the jury and were questioned by the State and the trial court. Each child demonstrated an ability to distinguish between the truth and a lie, stated that it was good to tell the truth, and bad to tell a lie, and understood that telling a lie led to some form of punishment. With each witness, the trial court made detailed findings of fact regarding the competency of each witness to testify. We conclude that it was not error to find the children competent to testify, and therefore, Defendant\u2019s plain error argument is without merit.\nDefendant next argues that the guilty verdict for sexual offense for penetration of the anal opening of S.V. was plain error because it was not charged in the indictment or described in the bill of particulars. Brief 30. Defendant fails to note that the State filed superceding indictments, which conformed to the language of N.C. Gen. Stat. \u00a7 14-27.4(a)(l). Our Supreme Court has held that an indictment which conforms to the requirements of N.C. Gen. Stat. \u00a7 15-144.2(b) need not specify which sexual act was committed to be sufficient to charge first-degree sexual offense. State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982). This assignment of error is overruled.\nDefendant next argues that the trial court erred when it denied Defendant\u2019s motion to dismiss each charge for insufficient evidence. Specifically, Defendant argues that there was insufficient evidence to support the element of penetration. \u201cUpon [a] defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (internal citation and quotation omitted). \u201cThe evidence must be viewed in the light most favorable to the State, and the State must receive every reasonable inference to be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.\u201d State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citations omitted).\nDefendant was charged with first-degree sexual offense pursuant to N.C. Gen. Stat. \u00a7 14-27.4(a)(l). To be convicted of this offense, the State must prove that (1) a defendant engaged in a sexual act, (2) the victim was under the age of thirteen years, and (3) at the time of the act the defendant was at least twelve years old and was at least four years older than the victim. N.C. Gen. Stat. \u00a7 14-27.4(a)(l) (2005). \u201c \u2018Sexual act\u2019 means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person\u2019s body[.]\u201d N.C. Gen. Stat. \u00a7 14-27.1(4) (2005).\nThe jury convicted Defendant of one count of first-degree sexual offense for penetration of the vaginal opening and one count of first-degree sexual offense for penetration of the anal opening as to Y.V. and S.V., and two counts of first-degree sexual offense of V.V. for penetration of the anal opening. Because we find all of the charges supported with sufficient evidence, we conclude that the trial court properly denied Defendant\u2019s motion to dismiss each of the charges.\nThe State\u2019s evidence with regard to the charges against Y.V. included the videotaped interview with Nurse Fink in which Y.V. states that \u201cBird\u201d touched Y.V. on her \u201cprivate\u201d with his fingers while her mother was at work. She also stated that someone touched her on her \u201chiney\u201d although she did not specifically state it was Defendant. Further, S.P. testified that Y.V. told her that Defendant had touched her \u201cprivatef,]\u201d rubbed it, and scared her. Dr. Soucie\u2019s examination revealed vaginal bruising and anal scars. Likewise, the charges of first-degree sexual offense of V.V. were supported by V.V.\u2019s videotaped interview with Nurse Brafford, and his in-court testimony. V.V. told Nurse Brafford that \u201cUncle Bird\u201d touched his \u201cwinkie\u201d and his \u201cbutt.\u201d V.V. also told her that \u201cBird\u201d \u201cpeed on his butt.\u201d Dr. Soucie observed that V.V. had a persistent anal scar which could have resulted from repeated penetration.\nThe State supported its allegations of sexual offense of S.V. with her videotaped interview with Nurse Cook, and S.V.\u2019s in-court testimony. S.V. testified that \u201cBird\u201d touched her \u201cprivates\u201d in the bathroom of her house. Further, Dr. Soucie\u2019s medical examination revealed that S.V. had scars on her perianal area. We find the statements of Y.V., S.V., and V.V., and the State\u2019s medical testimony sufficient to withstand Defendant\u2019s motion to dismiss as to each of the charges.\nFinally, Defendant argues that the trial court erred by failing to instruct the jury on attempted sexual offense because the evidence supported such an instruction. We disagree.\n\u201cA trial court is only required to instruct the jury on a lesser included offense when there is evidence presented from which the jury could find that such offense was committed.\u201d State v. Stinson, 127 N.C. App. 252, 258, 489 S.E.2d 182, 186 (1997). No evidence presented at trial would support a jury finding of attempted sexual offense. The State\u2019s evidence tended to show completed acts of penetration, which the State\u2019s medical evidence supported. Further, in his own testimony, Defendant denied any sexual contact with the children. We can see no evidence to support a finding of attempted sexual offense, and therefore, hold that the trial court did not err in refusing to instruct on attempted sexual offense.\nDefendant has failed to cite authority to support his remaining assignments of error in violation of N.C.R. App. R 28(b)(6) and we therefore decline to address them.\nNo error.\nChief Judge MARTIN and Judge WYNN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.", "M. Alexander Ghams for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY J. BURGESS AKA TERRY JOEL COOPER BURGESS\nNo. COA05-1529\n(Filed 2 January 2007)\n1. Appeal and Error\u2014 evidence objection not renewed at trial \u2014 statute then presumed constitutional\n' An assignment of error regarding videotapes was reviewed on appeal even though defendant did not object when the videotapes were offered into evidence. At the time, an evidence rule (N.C.G.S. \u00a7 8C-1, Rule 103(a)(2) (2005)) that did not require renewal of an objection was presumed constitutional.\n2. Constitutional Law\u2014 right to confrontation \u2014 videotapes of interviews \u2014 declarants available for cross-examination\nThere was no violation of defendant\u2019s right to confrontation in the admission of videotapes of interviews between child sexual abuse victims and nurses where the children took the stand and were available for cross-examination.\n3. Evidence\u2014 hearsay \u2014 videotapes of interviews with nurses \u2014 medical diagnosis exception\nVideotapes of interviews between child sexual abuse victims and nurses satisfied the requirements of the hearsay exception for medical diagnosis and treatment. N.C.G.S. \u00a7 8C-1, Rule 803(4).\n4. Evidence\u2014 hearsay \u2014 excited utterance exception \u2014 child\u2019s statements to mother\nA child sexual abuse victim\u2019s statements to her mother were properly admitted as an excited utterance. Fewer than twenty-four hours had passed between the time the child\u2019s mother yelled at her for putting dolls in a suggestive position, the assault, and the child\u2019s statements to her mother.\n5. Evidence\u2014 opinion about victim\u2019s credibility \u2014 child sexual abuse \u2014 testimony that victim suffering from post-traumatic stress\nThere was no plain error in allowing a licensed clinical social worker to testify that a child sexual abuse victim was suffering from post-traumatic stress or trauma related to abuse. The State presented physical evidence supporting a diagnosis of abuse, and the court instructed the jury that expert opinion that a person suffers from post-traumatic stress may be considered as corroboration and not as substantive evidence.\n6. Constitutional Law\u2014 right to unanimous verdict \u2014 multiple instances of child sexual abuse\nDefendant\u2019s right to a unanimous verdict was not violated in a prosecution for multiple counts of first-degree sexual offense of a child where the dates and locations of the acts alleged were not included on the verdict sheets.\n7. Witnesses\u2014 children \u2014 competency\nThere was no plain error in allowing the victims of child sexual abuse to testify where they each took the stand outside the presence of the jury and were questioned by the State and the trial court, each demonstrated an ability to distinguish between the truth and a lie, stated that it was good to tell the truth and bad to lie, and understood that telling a lie led to punishment. The court made detailed findings as to their competency.\n8. Sexual Offenses\u2014 against child \u2014 indictment\u2014specific sexual act not alleged \u2014 language of statute\nA superceding indictment for sexual offense against a child was sufficient where it conformed to the language of N.C.G.S. \u00a7 14-27.4(a)(l) even though it did not specify the sexual act of which defendant was found guilty.\n9. Sexual Offenses\u2014 penetration \u2014 evidence sufficient\nThere was sufficient evidence of penetration in a prosecution for first-degree sexual offenses against children and the trial court did not err by refusing to dismiss the charges.\n10.Sexual Offenses\u2014 first-degree \u2014 instruction on attempt not given \u2014 not supported by evidence\nThe trial court did not err by not instructing the jury on attempted sexual offense in a prosecution for first-degree sexual offenses against children. No evidence presented at trial would support a jury finding of attempted sexual offense.\nAppeal by Defendant from judgments dated 21 May 2004 by Judge W. David Lee in Superior Court, Cabarrus County. Heard in the Court of Appeals 10 October 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.\nM. Alexander Ghams for Defendant-Appellant." }, "file_name": "0027-01", "first_page_order": 59, "last_page_order": 73 }