{ "id": 4165765, "name": "STATE OF NORTH CAROLINA v. VANDEL NORMAN", "name_abbreviation": "State v. Norman", "decision_date": "2009-05-05", "docket_number": "No. COA08-1165", "first_page": "779", "last_page": "788", "citations": [ { "type": "official", "cite": "196 N.C. App. 779" } ], "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": "627 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635399 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/627/0609-01" ] }, { "cite": "360 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788582 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0368-01" ] }, { "cite": "240 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572601 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0281-01" ] }, { "cite": "289 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "305 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569745 ], "year": 1982, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0308-01" ] }, { "cite": "361 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "728", "parenthetical": "citing State v. Poole, 305 N.C. 308, 324, 289 S.E.2d 335, 345 (1982)" } ], "opinion_index": 0 }, { "cite": "321 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571664 ], "year": 1987, "pin_cites": [ { "page": "59", "parenthetical": "citing State v. Poole, 305 N.C. 308, 324, 289 S.E.2d 335, 345 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0052-01" ] }, { "cite": "355 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "475" }, { "page": "476" }, { "page": "477" } ], "opinion_index": 0 }, { "cite": "319 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738889 ], "year": 1987, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0429-01" ] }, { "cite": "352 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "319 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4745368 ], "year": 1987, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0084-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "918", "parenthetical": "citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75", "parenthetical": "citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "557 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "147", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 766", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381593 ], "year": 2001, "pin_cites": [ { "page": "769", "parenthetical": "quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0766-01" ] }, { "cite": "184 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "279 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571231 ], "year": 1971, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0573-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117", "parenthetical": "citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971)" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98", "parenthetical": "citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "451 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "339 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558011 ], "year": 1994, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0114-01" ] }, { "cite": "523 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "667" }, { "page": "667" }, { "page": "670" }, { "page": "669" } ], "opinion_index": 0 }, { "cite": "351 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155670 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "284" }, { "page": "284" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0277-01" ] }, { "cite": "334 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "314 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694660 ], "year": 1985, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0359-01" ] } ], "analysis": { "cardinality": 862, "char_count": 23349, "ocr_confidence": 0.75, "pagerank": { "raw": 5.2472734955934965e-08, "percentile": 0.3301603684230239 }, "sha256": "8edae881c59f949d6ae92f5e4b9989b26edf53f4d992a15190ef0ec1154e5ee2", "simhash": "1:9d025d026f6b52f2", "word_count": 3821 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VANDEL NORMAN" ], "opinions": [ { "text": "McGEE, Judge.\nVandel Norman (Defendant) was convicted of three counts of first-degree rape, four counts of first-degree sexual offense, and four counts of taking indecent liberties with a child on 4 October 2007. The trial court entered five judgments on Defendant\u2019s convictions. In judgment number one, the trial court consolidated two of Defendant\u2019s first-degree rape convictions and sentenced Defendant to 240 months to 297 months in prison. In judgment number two, the trial court sentenced Defendant to 240 months to 297 months in prison on the third count of first-degree rape, to run consecutively to the first judgment. In judgment number three, the trial court consolidated two first-degree sexual offense convictions and sentenced Defendant to 240 months to 297 months in prison to run consecutively to the second judgment. In judgment number four, the trial court consolidated two first-degree sexual offense convictions and sentenced Defendant to 240 months to 297 months in prison to run consecutively to the third judgment. In judgment number five, the trial court consolidated four taking indecent liberties with a child convictions and sentenced Defendant to 19 months to 23 months in prison, to run consecutively to the fourth judgment. Defendant appeals.\nAt trial, the State presented evidence that at the time the incidents occurred between September 2002 and December 2003, the victim, J.G., was between four and five years old. During that time, J.G. lived in Edenton with Defendant, her stepfather; her mother; her brother, J.A.G.; and two other siblings.\nAt the time of trial, J.G. was nine years old. J.G. testified that when she-was living with Defendant, he would sometimes call her upstairs to his room. Defendant would be watching a \u201csex movie.\u201d J.G. said Defendant \u201c[stuck] his ding-a-ling in my back or my bottom. Sometimes he does it in the front.\u201d The State clarified that \u201cin the front\u201d was the place where J.G. \u201cpees\u201d and that by \u201cding-a-ling\u201d J.G. meant the \u201cprivate part . . . that boys have.\u201d The State asked J.G. if Defendant \u201cput [his ding-a-ling] in [J.G.\u2019s] butt. . . inside of it?\u201d J.G. answered, \u201cyes.\u201d J.G. testified these incidents happened more than ten times. J.G.\u2019s brother, J.A.G., heard J.G. crying and asked why she was crying. J.G. told J.A.G. she was crying because Defendant stuck \u201chis ding-a-ling in front and my butt and peed in my mouth.\u201d\nJ.A.G. testified to the following. J.A.G. heard J.G. crying when she was upstairs with Defendant. J.A.G. said that when J.G. came downstairs \u201cher eyes [were] red and puffy\u201d and her \u201cnose was running.\u201d J.A.G. asked J.G. why she was crying, and she told him Defendant \u201cstuck his ding-a-ling in her front... in her front private part and in her butt.\u201d J.A.G. said this happened \u201cmore than five\u201d times and \u201cmaybe\u201d more than ten. J.A.G. told their mother about the incidents and she told him that \u201cshe would either call the cops if she ever caught [Defendant] or kick [Defendant] out of the house.\u201d\nIda Rogers (Rogers), a children\u2019s therapist, met with J.G. after the incidents of sexual abuse were reported to the Department of Social Services and testified to the following. Rogers met with J.G. on 19 August 2004. J.G. drew a picture of a girl and identified body parts and their uses. J.G. identified the \u201cbutt\u201d and genitals and told Rogers that \u201cyou pee up at front and you do the other in the back.\u201d J.G. told Rogers that she told her brother J.A.G. what happened because J.A.G. heard her crying. Rogers asked J.G. why she was crying and J.G. shouted at Rogers \u201cbecause it hurt.\u201d J.G. told Rogers again on 31 August 2004 that \u201cit hurts when [Defendant] sticks his ding-a-ling in my front and in my back.\u201d J.G. told Rogers that Defendant had \u201cstuff that kind of looked like grease and [Defendant] put [it] on his ding-a-ling before he put it in my front and my back.\u201d J.G. told Rogers that she had told her mother about the incidents and that her mother said \u201cif [J:G.] told anyone, [she] was going to get a whipping.\u201d J.G. told Rogers: \u201c[Mother] said that it never happened, but it really did.\u201d\nMaria Angelica Taylor (Taylor), a physician\u2019s assistant who conducted J.G.\u2019s physical examination, testified that she conducted J.G.\u2019s vaginal exam and found J.G. had \u201cno lacerations, no scars, [and] no bruising\u201d and her hymen was present. Taylor confirmed that it was \u201cnormal for a hymen to be totally normal even after sexual penetration.\u201d Taylor said she conducted a rectal examination and that J.G.\u2019s anus had \u201cno lesions; no laxity, no fissures and a skin tag.\u201d Taylor said that sexual abuse was still possible because the anal area was meant to stretch without tearing. Taylor said that her examination neither confirmed nor ruled out sexual abuse.\nDefendant testified at trial that \u201cnine times out of ten, [he] would not be left alone with the children,\u201d and that if he was left alone with the children, it was \u201cprobably no more than ten or fifteen minutes.\u201d Defendant denied he ever touched J.G., fondled her, or made her watch dirty movies.\nAt the close of Defendant\u2019s evidence, Defendant moved to dismiss all of the charges against him. The trial court denied Defendant\u2019s motion. Defendant appeals.\nI.\nIn his assignment of error number seven, Defendant argues the trial court erred in excluding testimony by physician\u2019s assistant Taylor about what J.G.\u2019s mother said to her during J.G.\u2019s first medical examination. Defendant contends this testimony was admissible as statements made for the purpose of medical diagnosis or treatment of J.G. under N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4).\nThe State argues that because Defendant failed to make an offer of proof at trial, he has waived this argument for appellate review. \u201c[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.\u201d State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). After the trial court sustained the State\u2019s objection to Taylor\u2019s testimony about what J.G.\u2019s mother told Taylor, Defendant failed to make an offer of proof. However, the record on appeal contains an offer of proof statement to which the State stipulated. The offer of proof statement reads:\nIn Part B of a Medical Report prepared on [4 January 2008] about alleged sexual abuse and neglect of J.G., Physician Assistant [Taylor] wrote the following with respect to statements made to her by Beth Norman, J.G.\u2019s mother, during a physical examination of J.G.: \u201c[J.G.\u2019s mother] does not believe anything happened to [J.G.]. [She] reports that [J.G.] has not made any disclosures to her, and she had never heard [J.G.\u2019s] sibling say anything about anybody touching [J.G.] inappropriately until [the Department of Social Services] showed up at [her] doorstep.\u201d\nBecause the excluded evidence appears in the record, Defendant preserved this issue for appeal.\nDefendant argues the statements by J.G.\u2019s mother to Taylor were admissible pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4) as statements made for the purpose of medical diagnosis or treatment of J.G. N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4) defines statements for the purpose of medical diagnosis or treatment as \u201c[statements . . . 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.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 803(4) (2007). We review de novo the trial court\u2019s determination of whether an out-of-court statement is admissible pursuant to Rule 803(4). See State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000). In order to be admissible under Rule 803(4), the testimony must meet a two-part inquiry: \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 Hinnant, 351 N.C. at 284, 523 S.E.2d at 667.\nOur Supreme Court has recognized that young children cannot independently seek medical attention. Therefore, a child\u2019s statements to a non-medical person, such as a therapist, social worker, or \u201ceven members of the family\u201d may be admissible under Rule 803(4) when the statements meet the two-pronged test outlined in Hinnant. Id. at 288, 523 S.E.2d at 670. In our Courts\u2019 previous decisions in which statements were admitted under Rule 803(4), the non-medical person to whom the child made the statements was physically present and testified to the child\u2019s statements at trial. However, in the present case, Defendant was not attempting to admit statements by J.G. through the testimony of her mother under the Rule 803(4) hearsay exception, because her mother was not present at trial. Rather, Defendant was attempting to admit the out-of-court statements of J.G.\u2019s mother to Taylor under Rule 803(4).\nDefendant cites and we have found only one prior decision in which our Courts have addressed the question of whether \u00e1 third-party\u2019s statements to medical personnel can be admissible under Rule 803(4). In State v. Jones, our Supreme Court said that statements made by the defendant\u2019s wife and mother to a doctor were inadmissible under Rule 803(4) because the \u201ctext of the rule makes it quite clear that only the statements of the person being diagnosed or treated are excepted from the prohibition against hearsay.\u201d State v. Jones, 339 N.C. 114, 146, 451 S.E.2d 826, 842 (1994). However, we have found no published Opinion that cites Jones for this proposition. Further, Kenneth S. Broun, in Brandis and Broun on North Carolina Evidence \u00a7 217, p. 181 (6th ed. 2004), cautions that this language in Jones is dictum, \u201cof uncertain validity in light of the actual language of the rule,\u201d and \u201cis questionable ... in other contexts, such as where a parent or other caretaker has made statements to a physician concerning the health of an infant or an impaired person.\u201d\nAssuming arguendo that a third-party\u2019s statements to medical personnel could be admissible under the Rule 803(4) hearsay exception, the statements would still need to meet the two-prong test outlined in Hinnant. Concerning the first prong, \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 Hinnant, 351 N.C. at 287, 523 S.E.2d at 669.\nRegarding the first prong of the Hinnant test, Defendant argues that because J.G.\u2019s mother made her statements to Taylor during J.G.\u2019s first medical examination, her statements were for the purpose of medical diagnosis of J.G. However, the statements by J.G.\u2019s mother that J.G. never made any disclosures to her about the abuse reveals nothing about J.G.\u2019s condition. To the contrary, the evidence tends to show that J.G.\u2019s mother\u2019s intent was more likely to exculpate herself. J.G.\u2019s mother was under investigation for child neglect by the Department of Social Services at the time she made her statements to Taylor. Both J.G. and J.A.G. testified they had told their mother about Defendant\u2019s abuse of J.G., and that their mother did nothing in response. Rodgers testified that J.G. said her mother threatened that J.G. would \u201cget a whipping\u201d if J.Q. told anyone about the abuse. Because Defendant failed to affirmatively establish that J.G.\u2019s mother made her statements to Taylor for the purpose of diagnosis or treatment of J.G., her statements fail the first prong of the Hinnant test.\nThe statements by J.G.\u2019s mother to Taylor also fail the second prong of the Hinnant test which requires the statements be reasonably pertinent to medical diagnosis or treatment. The fact of whether J.G. did or did not tell her mother about the abuse was not relevant to J.G.\u2019s diagnosis or treatment. J.G.\u2019s alleged silence does not describe her \u201cmedical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof.\u201d N.C.G.S. Rule 803(4).\nTherefore, assuming a third-party\u2019s statements to medical personnel could be admissible under Rule 803(4), the trial court nonetheless properly excluded the statements of J.G.\u2019s mother to Taylor because her statements failed both prongs of the Hinnant test. Defendant\u2019s assignment of error number seven is overruled.\nII.\nIn his assignments of error numbers eight and thirty-three, Defendant argues the trial court erred in denying Defendant\u2019s motion to dismiss the charges of first-degree sexual offense because the State failed to provide sufficient evidence of anal penetration.\nThe standard of review for a motion to dismiss in a criminal trial is \u201cwhether 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.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971)). \u201c \u2018Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Kraus, 147 N.C. App. 766, 769, 557 S.E.2d 144, 147 (2001) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). \u201cIn reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)).\nFirst-degree sexual offense is defined as \u201ca sexual act. . . with a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim.\u201d N.C. Gen. Stat. \u00a7 14-27.4 (2007).' N.C. Gen. Stat. \u00a7 14-27.1 defines a \u201csexual act\u201d as \u201ccunnilingus, fellatio, analingus, . . . anal intercourse ... [or 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 (2007). To prove sexual offense on the basis of anal intercourse in the present case, the State must prove that Defendant\u2019s penis penetrated J.G.\u2019s anus. See State v. Hicks, 319 N.C. 84, 90, 352 S.E.2d 424, 427 (1987).\nDefendant argues the present case is similar to Hicks. In Hicks, the State\u2019s only evidence of anal penetration was the victim\u2019s testimony that the defendant \u201cput his penis in the back of [the victim].\u201d Id. Our Supreme Court reversed the defendant\u2019s conviction of first-degree sexual offense, holding that \u201c[g]iven the ambiguity of [the victim\u2019s] testimony as to anal intercourse, and absent corroborative evidence,\u201d the evidence of sexual offense was insufficient to support the verdict. Id.\nWe find the present case distinguishable from Hicks and more analogous to State v. Griffin. In Griffin, the victim testified that the defendant \u201cstuck his private parts up her butt,\u201d which caused her to cry in pain. State v. Griffin, 319 N.C. 429, 431, 355 S.E.2d 474, 475 (1987). The State presented corroborative testimony by the victim\u2019s mother and a physician. Id. at 431, 355 S.E.2d at 476. The physician testified that the victim\u2019s rectal examination showed no signs of trauma but that the absence of injury would not have been inconsistent with the abuse the victim described. Id. Our Supreme Court held that \u201c[t]he child\u2019s testimony describing [the] defendant\u2019s commission of anal intercourse, corroborated by that of her mother and the examining physician, [was] sufficient competent evidence supporting proof of the essential elements of first degree sexual offense.\u201d Id. at 433, 355 S.E.2d at 477.\nIn the present case, J.G. testified that Defendant \u201c[stuck] his ding-a-ling in my back or my bottom.\u201d The State asked J.G. if Defendant \u201cput [his ding-a-ling] in [J.G.\u2019s] butt. . . inside of it?\u201d J.G. answered, \u201cyes.\u201d J.G. testified that her brother J.A.G. heard her crying and she told him she was crying because Defendant stuck \u201chis ding-a-ling in front and my butt and peed in my mouth.\u201d\nThe State also presented corroborative testimony of J.A.G., Taylor, and Rogers. J.A.G. testified that when he asked J.G. why she was crying, she told him Defendant \u201cstuck his ding-a-ling in her front ... in her front private part and in her butt.\u201d Taylor testified that J.G.\u2019s rectal examination neither confirmed nor ruled out sexual abuse. Rogers testified that during a therapy session, J.G. identified the \u201cbutt\u201d and genitals and told Rogers that \u201cyou pee up at front and you do the other in the back.\u201d J.G. told Rogers that \u201cit hurts when [Defendant] sticks his ding-a-ling in my front and in my back\u201d and that Defendant had \u201cstuff that kind of looked like grease and [Defendant] put [it] on his ding-a-ling before he put it in my front and my back.\u201d\nViewing the evidence in the light most favorable to the State, we hold the State presented sufficient evidence of anal penetration to allow a jury to find that Defendant committed first-degree sexual offense. Therefore, we conclude the trial court did not err in denying Defendant\u2019s motion to dismiss. Defendant\u2019s assignments of error numbers eight and thirty-three are overruled.\nIII.\nIn his assignment of error number seventeen, Defendant argues the trial court erred by instructing the jury that they could convict Defendant of four counts of first-degree sexual offense if the jury found that Defendant had committed first-degree sexual offense once. Defendant contends the trial court\u2019s instructions violated his right to a jury verdict on all counts of first-degree sexual offense because the jury instructions resulted in conditional directed verdicts.\nIn support of his argument, Defendant points to a portion of the jury instructions in which the trial court instructed the jury: \u201cIf you find . . . Defendant engaged in a sexual act with [J.G.] ... it would be your duty to return a verdict of guilty as to . . . each one of those charges in count one of those cases.\u201d (emphasis added). However, in reviewing jury instructions for error, the jury instructions must be considered in their entirety. State v. Davis, 321 N.C. 52, 59, 361 S.E.2d 724, 728 (1987) (citing State v. Poole, 305 N.C. 308, 324, 289 S.E.2d 335, 345 (1982)). In the present case, the trial court instructed the jury:\n[W]ith respect to case number[s] 05 CRS 739, 740, 741, and 742 . . . Defendant is charged in each one of those cases in count one of first degree sex offense. . . . [F]or you to find [] Defendant guilty of . . . these offenses, any one or more of them, the State must prove three things beyond a reasonable doubt.\nWe hold the jury instructions did not result in conditional directed verdicts because reviewing the jury instructions in their entirety, the instructions could not have led the jury to believe that it could return a verdict of guilty in all four first-degree sexual offense charges if the jury was satisfied of Defendant\u2019s guilt beyond a reasonable doubt for only one of those offenses. See State v. Schultz, 294 N.C. 281, 240 S.E.2d 451 (1978). Therefore, we find Defendant\u2019s argument without merit and overrule his assignment of error number seventeen.\nIV.\nIn his assignments of error numbers twelve, fourteen, and nineteen, Defendant argues the trial court erred by failing to instruct the jury that it had to be unanimous as to each specific incident of first-degree rape, first-degree sexual offense, and taking indecent liberties with a minor. However, Defendant concedes that our Supreme Court ruled against his contention in State v. Lawrence. See State v. Lawrence, 360 N.C. 368, 627 S.E.2d 609 (2006). Therefore, Defendant\u2019s assignments of error numbers twelve, fourteen, and nineteen are overruled.\nDefendant did not argue his remaining assignments of error and therefore they are abandoned pursuant to N.C.R. App. P. 28(b)(6).\nNo error.\nJudges GEER and BEASLEY concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VANDEL NORMAN\nNo. COA08-1165\n(Filed 5 May 2009)\n1. Evidence\u2014 hearsay \u2014 medical diagnosis or treatment exception\nThe trial court did not err in a multiple first-degree rape, multiple first-degree sexual offense, and multiple taking indecent liberties with a child case by excluding testimony of a physician\u2019s assistant about what the minor child victim\u2019s mother said to her during the minor child\u2019s first medical examination because: (1) defendant was not attempting to admit statements by the victim through the testimony of her mother under the N.C.G.S. \u00a7 8C-1, Rule 803(4) hearsay exception since her mother was not present at trial, but instead was attempting to admit the out-of-court statements of the victim\u2019s mother; and (2) assuming arguendo that a third party\u2019s statements to medical personnel could be admissible under the Rule 803(4) medical diagnosis or treatment hearsay exception, the statements by the victim\u2019s mother that the victim never made any disclosures to her about the abuse revealed nothing about the victim\u2019s condition but instead tended to show the mother\u2019s intent to exculpate herself, defendant failed to establish that the mother made her statements for the purpose of diagnosis or treatment of the victim, and the fact of whether the victim told her mother about the abuse was not relevant to her diagnosis or treatment.\n2. Sexual Offenses\u2014 first-degree sexual offense \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 anal penetration\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of first-degree sexual offense even though defendant contends the State failed to provide sufficient evidence of anal penetration because the evidence, viewed in the light most favorable to the State, including the victim\u2019s testimony and the corroboration testimony of three others, was sufficient.\n3. Sexual Offenses\u2014 instructions \u2014 conditional directed verdicts \u2014 possibility of multiple verdicts for single offense\nThe jury instructions in a prosecution on four counts of first-degree sexual offense did not result in conditional directed verdicts since the instructions could not have led the jury to believe that it could return a verdict of guilty in all four first-degree sexual offense charges if the jury was satisfied of defendant\u2019s guilt beyond a reasonable doubt for only one of those offenses.\n4. Appeal and Error\u2014 preservation of issues \u2014 issue already decided in prior cases\nAlthough defendant contends the trial court erred by failing to instruct the jury that it had to be unanimous as to each specific incident of first-degree rape, first-degree sexual offense, and taking indecent liberties with a minor, this assignment of error is dismissed because defendant concedes our Supreme Court has already ruled against this contention.\nAppeal by Defendant from judgments entered 4 October 2007 by Judge Clifton W. Everett, Jr. in Superior Court, Chowan County. Heard in the Court of Appeals 24 March 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for Defendant-Appellant." }, "file_name": "0779-01", "first_page_order": 807, "last_page_order": 816 }