{ "id": 4343491, "name": "STATE OF NORTH CAROLINA v. THOMAS LAMONTE JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "2011-10-04", "docket_number": "No. COA10-1135", "first_page": "238", "last_page": "248", "citations": [ { "type": "official", "cite": "216 N.C. App. 238" } ], "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": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "303" }, { "page": "413", "parenthetical": "defining \"statutory maximum\" as the maximum sentence that can be imposed \"solely on the basis of the facts reflected in the jury verdict or admitted by the defendant\"" } ], "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "460 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "175", "parenthetical": "holding child witness's testimony did not violate defendant's confrontation rights and trial court, albeit prior to statutory authorization of remote testimony, properly exercised discretion in allowing the method" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916961 ], "year": 1995, "pin_cites": [ { "page": "657-58", "parenthetical": "holding child witness's testimony did not violate defendant's confrontation rights and trial court, albeit prior to statutory authorization of remote testimony, properly exercised discretion in allowing the method" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0654-01" ] }, { "cite": "239 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "year": 1977, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] }, { "cite": "449 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "400", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "338 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2521132 ], "year": 1994, "pin_cites": [ { "page": "259", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0244-01" ] }, { "cite": "700 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "63-64", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "653 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 3186386 ], "year": 2007, "pin_cites": [ { "page": "625", "parenthetical": "\"As nearly all courts and commentators have agreed, Crawford did not overrule Craig.\"" } ], "opinion_index": 0, "case_paths": [ "/va-app/50/0732-01" ] }, { "cite": "256 P.3d 899", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 3748828 ], "year": 2011, "pin_cites": [ { "parenthetical": "finding no court that has \"concluded Crawford overruled Craig.\"" } ], "opinion_index": 0, "case_paths": [ "/mont/361/0001-01" ] }, { "cite": "724 N.W.2d 649", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8303296 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "651-55" }, { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/297/0519-01" ] }, { "cite": "131 P.3d 232", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 8429928 ], "year": 2006, "pin_cites": [ { "page": "237-38" } ], "opinion_index": 0, "case_paths": [ "/p3d/131/0232-01" ] }, { "cite": "202 S.W.3d 670", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 8463310 ], "year": 2006, "pin_cites": [ { "page": "680-81" } ], "opinion_index": 0, "case_paths": [ "/sw3d/202/0670-01" ] }, { "cite": "935 A.2d 975", "category": "reporters:state_regional", "reporter": "A.2d", "year": 2007, "opinion_index": 0 }, { "cite": "508 F.3d 306", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6047501 ], "year": 2007, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 0, "case_paths": [ "/f3d/508/0306-01" ] }, { "cite": "134 P.3d 19", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 3670174 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "29", "parenthetical": "citing post-Crawford decisions holding CCTV testimony constitutional against Confrontation Clause challenges" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/35/0686-01" ] }, { "cite": "487 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "487 U.S. 1012", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1774862 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "1023", "parenthetical": "O'Connor, J., concurring" }, { "page": "868", "parenthetical": "O'Connor, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/us/487/1012-01" ] }, { "cite": "156 U.S. 237", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1488083 ], "weight": 2, "year": 1895, "pin_cites": [ { "page": "243" }, { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/us/156/0237-01" ] }, { "cite": "480 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131144 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/us/480/0039-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "702 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "497 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6220020 ], "weight": 19, "year": 1990, "pin_cites": [ { "page": "845" }, { "page": "845-46" }, { "page": "852-53" }, { "page": "683" }, { "page": "851" }, { "page": "845" }, { "page": "678" }, { "page": "853" }, { "page": "848" }, { "page": "857" }, { "page": "860" }, { "page": "688" }, { "page": "856-57" }, { "page": "685-86", "parenthetical": "declining to \"decide the minimum showing of emotional trauma required for use of the special [CCTV] procedure\" but noting that the level of trauma would meet constitutional standards if it \"would impair the child's ability to communicate\"" } ], "opinion_index": 0, "case_paths": [ "/us/497/0836-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 1198, "char_count": 28461, "ocr_confidence": 0.747, "pagerank": { "raw": 7.262215566586765e-08, "percentile": 0.4329097951270518 }, "sha256": "903319ca0d946f8efafc7278d7897b8f791ee2d2b6c264f42a85a9be545b8a3e", "simhash": "1:1b8b163d7f161657", "word_count": 4596 }, "last_updated": "2023-07-14T18:13:27.459138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. THOMAS LAMONTE JACKSON" ], "opinions": [ { "text": "BEASLEY, Judge.\nThomas Lamonte Jackson (Defendant) appeals from judgment entered on his several convictions of sex offenses committed against child victim, C.G. For the following reasons, we find no prejudicial error.\nWhere Defendant\u2019s arguments as to the guilt phase of trial deal solely with the procedure by which C.G. testified, a brief summary of underlying facts suffices. The evidence showed that Defendant, known as \u201cBlue,\u201d sexually abused four-year-old C.G. on 19 April 2008. C.G. told her mother that Blue had \u201cput his privacy part in her mouth and told her to lick and suck,\u201d \u201cpulled her pants down,\u201d and \u201cmashed really hard\u201d with his fingers; and the nurse practitioners who examined C.G. observed symptoms consistent with child sexual assault. C.G. began wetting the bed, having bad dreams, and displaying a fear of men. On 29 April 2008, C.G. saw child sexual abuse and forensic examiner Amy Yow at the Butterfly House Children\u2019s Advocacy Center, and their videotaped interview was reviewed by child psychologist Dr. Mark Everson, who met with C.G. in late 2009. Dr. Everson noted behavior consistent with child sex abuse and, while admitting some variation in C.G.\u2019s statements, stressed the consistency, in light of C.G.\u2019s age at the time of the assault, as to the core elements thereof.\nC.G. gave her account of the incident at trial and did so by closed-circuit television (CCTV). Where the State had moved for remote testimony under N.C. Gen. Stat. \u00a7 15A-1225.1, C.G.\u2019s mother and Dr. Everson testified at a pre-trial hearing on 6 April 2010. The State urged the trial court to authorize the procedure so C.G. could be an effective witness. Defendant argued insufficient evidence supported the requisite statutory findings, and he also objected on the grounds of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). Based primarily on Dr. Everson\u2019s testimony that C.G. would experience trauma by testifying in Defendant\u2019s presence, which would affect her ability to communicate with the jury, the trial court authorized the remote testimony and then found six-year-old C.G. competent to testify. Accordingly, C.G. testified by CCTV on the second day of trial that Blue had taken her into a bathroom, where he \u201cput his privafte] part in [her] mouth\u201d while wiggling his body and \u201cput his finger in [her] private part.\u201d\nThe jury found Defendant guilty of first degree sex offense with a child, crime against nature, and indecent liberties. The court consolidated the convictions and imposed a presumptive-range prison sentence of 384 to 470 months. On appeal, Defendant challenges the trial court\u2019s decision allowing C.G. to testify by CCTV. He also alleges that aggravating factors not found by the jury were improperly considered at sentencing.\nI. Remote Testimony\nA child witness, a minor under 16 at the time of testimony, may testify outside the defendant\u2019s physical presence in a criminal proceeding, but only if certain conditions are met. See N.C. Gen. Stat. \u00a7 15A-1225.1(a)(1), (3) (2009). Upon a motion for remote testimony, the trial court must \u201chold an evidentiary hearing,\u201d and can permit a child to testify \u201cother than in an open forum\u201d only if it first finds that, otherwise, (1) \u201cthe child witness would suffer serious emotional distress, not by the open forum in general, but by testifying in the defendant\u2019s presence, and (2) \u201cthe child\u2019s ability to communicate with the trier of fact would be impaired.\u201d N.C. Gen. Stat. \u00a7 15A-1225.1(b)-(c) (2009).\nAfter hearing the State\u2019s motion, the trial court found that the evidence supported the requisite findings, allowed C.G. to testify by one-way CCTV, and explained that a television camera would be set up in a room next to the judge\u2019s chambers. The prosecutor, defense counsel, and C.G.\u2019s mother, who had to keep silent, were allowed in the room with C.G. Defendant would remain in the courtroom, but a telephone system would enable him to speak privately with his attorney during C.G.\u2019s testimony. C.G.\u2019s image would be projected onto screens facing Defendant, the court, and the jury, who would be able to hear and see C.G. but would not be visible to anyone in the room with her. The trial court underscored that this method was intended to allow those in the courtroom to observe C.G.\u2019s demeanor as she testified \u201cin a similar manner as if [she] were in the open forum.\u201d\nDefendant claims the admission of evidence through remote broadcast violated the Confrontation Clause of the Sixth Amendment. Acknowledging the United States Supreme Court\u2019s Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666 (1990), decision that the Confrontation Clause does not categorically prohibit the use of one-way CCTV to procure a child sex offense victim\u2019s testimony, he argues that Crawford so unraveled Craig\u2019s reasoning that \u201cCraig can no longer be seen as good law.\u201d Alternatively, he contends that the evidence did not support the statutory findings. We hold the CCTV testimony did not violate Defendant\u2019s confrontation rights and that sufficient evidence existed to permit C.G. to testify outside his physical presence.\nA. Confrontation Clause Issue\nWe review de novo whether the right to confrontation was violated. State v. Hurt, _ N.C. App. _, _, 702 S.E.2d 82, 87 (2010). The Confrontation Clause, applied to the states by the Fourteenth Amendment, protects the fundamental right of an accused \u201cto be confronted with the witnesses against him.\u201d U.S. Const, amend. VI; see also Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923 (1965). It aims to ensure the evidence is reliable \u201cby subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.\u201d Craig, 497 U.S. at 845, 111 L. Ed. 2d at_. The elements of confrontation include the witness\u2019s: physical presence; under-oath testimony; cross-examination; and exposure of his demeanor to the jury. Id. at 845-46, 111 L. Ed. 2d at_. The physical presence, or \u201cface-to-face,\u201d requirement embodies the general Confrontation Clause protection of an accused\u2019s \u201cright [to] physically face those who testify against him.\u201d Pennsylvania v. Ritchie, 480 U.S. 39, 51, 94 L. Ed. 2d 40, _(1987). But, this general rule \u201cmust occasionally give way to considerations of public policy and the necessities of the case.\u201d Mattox v. United States, 156 U.S. 237, 243, 39 L. Ed. 409, 411 (1895). One policy area that often arises in the constitutional context is the protection of youth by using witness \u201cshielding\u201d procedures to balance the need for child sex crime victims\u2019 testimony against the risk of engendering further emotional distress. See Coy v. Iowa, 487 U.S. 1012, 1023, 101 L. Ed. 2d 857, 868 (1988) (O\u2019Connor, J., concurring) (noting child abuse prosecutions are difficult, as the victim may be the only witness, and observing the various \u201cameliorative measures\u201d taken by states to shield the child from added trauma occasioned by the courtroom atmosphere). The Supreme Court has deemed the interest in safeguarding child abuse victims from further trauma and embarrassment to be a compelling one that, depending on the necessities of the case, may outweigh a defendant\u2019s right to face his accusers in court. See Craig, 497 U.S. at 852-53, 111 L. Ed. 2d at 683.\nWhen the Supreme Court first examined witness shielding in this context, however, it held the child victims\u2019 testimony from behind an opaque screen violated the Confrontation Clause. See Coy, 487 U.S. 1012, 101 L. Ed. 2d 857. But, two years later in Craig, the Court was faced with the same policy issue and held the face-to-face element of confrontation was outweighed by necessity, emphasizing significant differences from Coy. First, Craig involved the use of one-way CCTV, which allowed the child sex offense victims to testify without seeing anyone in the courtroom but permitted the accused to see them on a video monitor. Craig, 497 U.S. 836, 111 L. Ed. 2d 666. While denying literal face-to-face confrontation, the method preserved all other elements of confrontation \u2014 oath, cross-examination, and the jury\u2019s observation of the witness\u2019 demeanor \u2014 thus subjecting the testimony \u201cto rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.\u201d Id. at 851, 111 L. Ed. 2d at _. The trial court in Craig also made individualized findings that the child witnesses needed special protection, id. at 845, 111 L. Ed. 2d at 678, where Coy contained no case-specific findings of necessity, see Coy, 487 U.S. 1021, 101 L. Ed. 2d 857 (leaving \u201cfor another day\u201d whether there are any exceptions to the Confrontation Clause\u2019s \u201cirreducible literal meaning\u201d \u2014 namely, an accused\u2019s right \u201cto meet face to face\u201d those who give evidence at trial).\nCraig elaborated that a finding of necessity is proper only if a trial court likewise finds, upon an evidentiary hearing, that: (1) the \u201cprocedure is necessary to protect the welfare of the particular child witness who seeks to testify\u201d; (2) \u201cthe child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant\u201d; and (3) \u201cthe emotional distress suffered by the child witness in the presence of the defendant is more than de minimis. \u201d Id. at 855-56, 111 L. Ed. 2d at_. Where a case-specific finding of necessity is thus made, the Confrontation Clause does not bar a court\u2019s use of one-way CCTV to receive testimony from a child witness in a child abuse case. Id. at 860, 111 L. Ed. 2d at._. Defendant does not contend that the individualized findings set out in N.C. Gen. Stat. \u00a7 15A-1225.1(b) fail to satisfy Craig\u2019s requirements. Nor does he dispute that the trial court held a hearing, made the statutory findings, and found C.G. competent to testify. Rather, Defendant argues that Craig\u2019s authorization of the CCTV procedure cannot survive Crawford v. Washington, and he urges us to disregard the Court\u2019s earlier ruling.\nDefendant contends this partial rejection of Roberts, upon which Craig partially relied, so \u201cdestroyed] the linchpin\u201d of Craig that it is no longer good precedent.\nWhile we have not addressed this issue, we observe an enduring reliance on Craig in other jurisdictions. See State v. Blanchette, 134 P.3d 19, 29 (Kan. Ct. App. 2006) (citing post-Crawford decisions holding CCTV testimony constitutional against Confrontation Clause challenges). In fact, many courts have examined the exact argument advanced here and have explicitly upheld Craig as governing whether a child victim\u2019s CCTV testimony violates the Confrontation Clause. See, e.g., Horn v. Quarterman, 508 F.3d 306, 318-19 (5th Cir. 2007); State v. Arroyo, 935 A.2d 975, 992 n.18 (Conn. 2007); Blanchette, 35 134 P.3d at 29; State v. Griffin, 202 S.W.3d 670, 680-81 (Mo. Ct. App. 2006); State v. Henriod, 131 P.3d 232, 237-38 (Utah 2006); State v. Vogelsberg, 724 N.W.2d 649, 651-55 (Wis. 2006). Moreover, we have found no case which holds Craig and Crawford cannot co-exist. See State v. Stock, 256 P.3d 899 (2011) (finding no court that has \u201cconcluded Crawford overruled Craig.\u201d); Roadcap v. Commonwealth, 50 V. App. 732, 743, 653 S.E.2d 620, 625 (2007) (\u201cAs nearly all courts and commentators have agreed, Crawford did not overrule Craig.\u201d). For the reasons detailed below, we join the weight of authority.\nAdmittedly, Craig\u2019s rationale seems inconsistent with some language in Crawford. Compare Craig, 497 U.S. at 853, 111 L. Ed. 2d at _(concluding the right to physically face witnesses may be outweighed by child abuse victim\u2019s well-being), and id. at 848, 111 L. Ed. 2d at 682 (citing Roberts for propositions that: (i) \u201ca literal reading of the Confrontation Clause would \u2018abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme\u2019 \u201d; and (ii) the face-to-face element may be denied if \u201cnecessary to further an important public policy and only where the reliability of the testimony is otherwise assured\u201d), with Crawford, 541 U.S. at 54, 158 L. Ed. 2d at_(\u201cThe text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.\u201d). Defendant contends that Crawford\u2019s language imposes a face-to-face requirement for all testimonial hearsay and is thus fatal to Craig\u2019s holding. But he does not recognize that the face-to-face aspect of confrontation at trial was not at issue in Crawford, or that the Court did not hold that such was required in every case. Where \u201cCrawford and Craig address distinct confrontation questions,\u201d Vogelsberg, 724 N.W.2d at 654, we may not consider their language in a vacuum apart from the distinct contexts in which it appears.\nDefendant\u2019s argument regarding C.G.\u2019s testimony by CCTV is thus controlled by Craig, not Crawford, and we tailor our analysis accordingly.\nWhile C.G. was not physically facing Defendant, he (and the jury) could see and hear her on a television monitor without delay as she testified under oath. Defendant could thereby evaluate her demeanor and perceive the inflections in her voice. He was also able to communicate directly with his lawyer and express any concerns about transmission, volume, perception, or visibility. In fact, when C.G. was not properly positioned so as to be seen by Defendant and the jury, the trial court adequately addressed it. Furthermore, Defendant was able to fully cross-examine C.G. This procedure left all other elements of confrontation intact: C.G. was found competent to testify under oath; Defendant had a full opportunity for contemporaneous cross-examination; and the judge, jury, and Defendant were able to view C.G.\u2019s body and demeanor by video monitor as she testified. See Craig, 497 U.S. at 857, 111 L. Ed. 2d at_(approving of the CCTV method not only due to the necessity-based findings, but also where child witnesses testified under oath, were subject to full cross-examination, and were observable by the judge, jury, and defendant as they testified). As C.G.\u2019s trial testimony was subjected to rigorous adversarial testing thereby, effective confrontation was preserved, and the use of one-way CCTV to procure her evidence did not offend the Constitution, despite the lack of face-to-face confrontation.\nB. Statutory Issue\nDefendant argues that even if the Sixth Amendment was not violated, N.C. Gen. Stat. \u00a7 15A-1225.1 was. Where C.G. was found competent to testify, \u00a7 15A-1225.1(b) permitted her to do so remotely if the trial court determined that testifying in Defendant\u2019s presence, not just the open forum generally, would cause her serious emotional distress and impair her ability to communicate with the trier of fact. The trial court heard case-specific evidence as to whether closed-circuit testimony was necessary and found \u201cthat the child witness, [C.G.], would suffer serious emotional distress, based upon the evidence presented to the court today, by testifying in the defendant\u2019s presence and that the child\u2019s ability to communicate with the \u2014 with the jury, the trier of fact, would be impaired.\u201d\nDefendant challenges the court\u2019s authorization of the CCTV procedure on the ground that the evidence did not support the findings. As the standard of review on a trial court\u2019s \u00a7 15A-1225.1 ruling is not statutorily defined and we have yet to address the statute, our scope of review has not been developed. But see Stradford, 119 N.C. App. at 659, 460 S.E.2d at 176 (pre-statute decision reviewing trial court\u2019s finding that \u201cchildren would be traumatized by defendant\u201d for \u201cproper evidentiary support\u201d and holding the testimony \u201cprovided adequate support\u201d for decision to authorize use of remote testimony). Defendant suggests, however, and we agree, that a trial court\u2019s decision that remote testimony is necessary and its underlying \u00a7 15A-1225.1(b) determinations are findings of fact that will not be disturbed on appeal absent competent record evidence in support thereof. Accordingly, we must decide if the hearing testimony, viewed in favor of the moving party, presents any competent evidence in support of the court\u2019s particularized findings.\nC.G.\u2019s mother testified to the many behavioral changes C.G. exhibited after reporting the incident. In addition to bed wetting, bad dreams, and guardedness around men, C.G. expressed anxiety over the prospect of encountering Blue again. C.G. had inquired several times as to Blue\u2019s whereabouts and, after being told that Defendant \u201cwas locked up,\u201d remained concerned over whether he would \u201cstay there forever.\u201d When C.G.\u2019s mother said yes, C.G. appeared \u201cat ease\u201d or at least not \u201cas scared.\u201d Dr. Everson, received as an expert \u201cin child psychology and particularly in regard to child trauma or maltreatment,\u201d then testified on the basis of his interview with C.G., his review of C.G.\u2019s videotaped forensic interview with Ms. Yow, and C.G.\u2019s mother\u2019s reflections. He detailed his late 2009 assessment of C.G., over one and a half years after the alleged incident with Blue, and found that she displayed \u201cbehavior symptoms that are often related to stress or traumatic reactions.\u201d\nDr. Everson also opined that C.G. would not be capable of effectively testifying in front of Defendant and explained the bases for his expert opinion: first, C.G.\u2019s initial attempt to disclose the traumatic incident she described was met with non-support, as her grandmother had told her not to \u201ctalk about that\u201d; C.G. then became \u201cspacy and preoccupied\u201d and began exhibiting regressive behaviors; and the result is \u201ca kid who was psychologically traumatized at the time\u201d but received no treatment for her trauma \u201cexcept the passage of time.\u201d Dr. Everson further anticipated \u201cthat when C.G. is faced with events, people, whatever that remind her of the trauma, that she could very well re-experience it, given that she\u2019s not had treatment for it\u201d and believed that a \u201csecondary trauma\u201d could be caused by \u201chaving C.G. testify in front of the defendant.\u201d He worried about C.G.\u2019s re-experiencing the trauma \u201cwhen she\u2019s around the defendant and certainly, along with that, a closing down in terms of being \u2014 as a witness.\u201d The \u201ccombination of the trauma, the re-experiencing, and the general avoidance [of talking about the trauma]\u201d made it \u201cpretty clear\u201d to the expert that C.G. was \u201cgoing to close down\u201d and \u201cnot be a witness in terms of telling her experiences.\u201d\nThe trial court found that this testimony presented \u201cclear and convincing evidence,\u201d that it should permit C.G. to testily \u201cusing the closed-circuit television apparatus\u201d in order to \u201cprotect [her] from trauma that would be caused by testifying in the physical presence of the defendant where, in the opinion of the court, that such trauma would impair the child\u2019s ability to communicate.\u201d Defendant argues that any evidence of the emotionally traumatic impact that testifying in front of Defendant would have on C.G. was \u201cvague and speculative\u201d and that her expected ineffectiveness as a trial witness was not adequately linked to Defendant\u2019s presence. We disagree.\nInitially, we note the Supreme Court\u2019s approval of a trial court\u2019s reliance on expert testimony in making the factual findings necessary to admit CCTV testimony. See Craig, 497 U.S. at 860, 111 L. Ed. 2d at 688 (\u201cThe trial court in this case, for example, could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant\u2019s presence \u2018will result in [each] child suffering serious emotional distress such that the child cannot reasonably communicate.\u2019 \u201d ). Viewed in its entirety, and in a light most favorable to the State as the moving party, Dr. Everson\u2019s expert testimony sufficiently links Defendant\u2019s presence to the emotional trauma that C.G. would suffer if she were forced to testify in the courtroom. This finding is further supported by C.G.\u2019s mother\u2019s testimony that C.G. was preoccupied with Defendant\u2019s whereabouts and relieved to hear that he would stay in jail forever is significant. Moreover, Dr. Everson specifically connected his projection that C.G. would close down as a witness to her being \u201caround [Defendant].\u201d\nWe find no merit to Defendant\u2019s argument that Dr. Everson\u2019s expert emotional distress testimony was \u201cvague and speculative.\u201d See In re Stradford, 119 N.C. App. at 659, 460 S.E.2d. at 176 (holding testimony of clinical therapist as to victim\u2019s further traumatization, based on training, experience and therapy sessions, provided \u201cadequate support for the trial court\u2019s decision to authorize the use of remote testimony\u201d). Where Dr. Everson provided a detailed account of his psychological assessment of C.G., it was reasonable for the trial court to believe that C.G. would be further traumatized, and not just anxious or upset, if she had to testify in Defendant\u2019s physical presence. Nor are we persuaded by Defendant\u2019s contention that the expert failed to identify whether C.G. \u201cwould suffer serious and long-lasting emotional consequences if she testified in front of the defendant, or if she\u2019d just be upset for an hour or two.\u201d See Craig, 497 U.S. at 856-57, 111 L. Ed. 2d at 685-86 (declining to \u201cdecide the minimum showing of emotional trauma required for use of the special [CCTV] procedure\u201d but noting that the level of trauma would meet constitutional standards if it \u201cwould impair the child\u2019s ability to communicate\u201d). In fact, Defendant admits that Dr. Everson \u201copined that [C.G.] might close down and not be able to share her experiences, if she were asked to testify in front of the defendant.\u201d\nWe thus conclude that the evidence sufficiently supports the trial court\u2019s findings that C.G. would be traumatized if compelled to testify in front of Defendant; that such was specifically due to Defendant\u2019s presence; and that C.G.\u2019s ability to communicate before the trier of fact would thereby be impaired. The trial court\u2019s findings further satisfied the requirements set forth by N.C. Gen. Stat. \u00a7 15A-1225.1, and C.G.\u2019s testimony by CCTV was properly allowed.\nII. Sentencing\nWhile Defendant challenges his sentence as improperly based on aggravating factors that had not been found by the jury in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), he was sentenced in the presumptive range. It is true that \u201ca new sentencing hearing must be granted when a judge aggravates a criminal sentence on the basis of findings made by the judge that are in addition to or in lieu of findings made by a jury,\u201d as \u201cany fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d State v. Shaw, __ N.C. App. _, _, 700 S.E.2d 62, 63-64 (2010) (emphasis added) (internal quotation marks and citations omitted); see also Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413 (defining \u201cstatutory maximum\u201d as the maximum sentence that can be imposed \u201csolely on the basis of the facts reflected in the jury verdict or admitted by the defendant\u201d). Although the trial court stated on the record that he had found certain aggravating factors \u2014 despite none being offered by the State or found by the jury \u2014 it did not impose a sentence outside the statutory maximum. Thus, Defendant cannot obtain relief from the rule that \u201c[w]hen the trial judge errs in finding an aggravating factor and imposes a sentence in excess of the presumptive term, the case must be remanded for a new sentencing hearing.\u201d State v. Wilson, 338 N.C. 244, 259, 449 S.E.2d 391, 400 (1994) (emphasis added).\nDefendant also cites State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977), for its holding that the presumption that a sentence within the statutory limit is valid may be overcome \u201c[i]f the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence.\u201d The record, however, reveals that the court did not consider the improperly found aggravating factors in sentencing Defendant. The trial judge recognized his mistake and, the day after judgment was entered, ordered sua sponte that a re-sentencing hearing be held to correct his \u201cerror in stating on the record that aggravating factors would be found after the jury had not been requested to consider aggravating factors.\u201d Not only did the order indicate \u201cthat notwithstanding the foregoing findings the court did sentence the defendant within the presumptive range,\u201d but the trial judge also emphasized at the 20 April 2010 hearing on the court\u2019s own motion for appropriate relief that his erroneously found aggravating factors during sentencing \u201cplayed no role in the sentence announced.\u201d Because the trial court had also found mitigating factors, the judge made sure to clarify the record, noting \u201cthat at that time, and again now, the court reaffirms that the mitigating factors do not justify and are insufficient to justify a departure from the presumptive range of sentencing.\u201d The trial court then reviewed the findings in mitigation, reiterated that a downward departure was not warranted, and reaffirmed the sentence imposed, specifying: \u201cI\u2019m not changing one thing about the time of the length of the sentence that was in the presumptive range. I merely wanted to make it clear as to what had happened.\u201d It is thus clear that the improper consideration of aggravating factors had no impact on Defendant\u2019s sentence, and we overrule this argument.\nNo prejudicial error.\nJudges CALABRIA and STEELMAN concur.\n. This pseudonym is used to protect the minor victim\u2019s identity and privacy.\n. This meets the statute\u2019s conditions that the judge, jury, and defendant must be able to observe the child\u2019s demeanor as she testifies in a manner similar to the open forum and that the method elected must ensure that defense counsel \u201cis physically present where the child testifies,\u201d has a full and fair opportunity to cross-examine the child, and can communicate privately with the defendant during the remote testimony. N.C. Gen. Stat. \u00a7 15A-1225.1(e).\n. While Defendant does not craft his argument as an attack on the legality of N.C. Gen. Stat. \u00a7 15A-1225.1, we note that the constitutionality of the recently enacted statute has not been challenged or ruled upon. See 2009 N.C. Sess. Laws ch. 356, \u00a7 2 (making \u00a7 15A-1225.1 effective 1 December 2009).\n. This Court has affirmed the use of one-way CCTV testimony by a child sexual abuse victim only one time and did so in a pre-Crawford decision. See In re Stradford, 119 N.C. App. 654, 657-58, 460 S.E.2d 173, 175 (1995) (holding child witness\u2019s testimony did not violate defendant\u2019s confrontation rights and trial court, albeit prior to statutory authorization of remote testimony, properly exercised discretion in allowing the method).", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, for the State.", "Michael E. Casterline, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THOMAS LAMONTE JACKSON\nNo. COA10-1135\n(Filed 4 October 2011)\n1. Constitutional Law \u2014 right to confrontation \u2014 remote broadcast of child sex abuse victim\u2019s testimony\nThe trial court did not violate defendant\u2019s right to confrontation in a multiple sexual offenses with a child case by admitting evidence through remote broadcast of the child victim\u2019s testimony. While the child was not physically facing defendant, defendant and the jury could see and hear the child on a television monitor without delay as she testified under oath. Defendant had a full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant were able to view the child\u2019s body and demeanor by video monitor as she testified. The requirements of \u00a7 15A-1225.1 were satisfied by the findings that the child would be traumatized if compelled to testify in front, of defendant, that such was specifically due to defendant\u2019s presence, and that the child\u2019s ability to communicate before the trier of fact would thereby be impaired.\n2. Sentencing \u2014 presumptive range \u2014 no Blakely error\nAlthough defendant contended that the trial court committed a Blakely error in a multiple sexual offenses with a child case by allegedly sentencing defendant based on aggravating factors that had not been found by the jury, defendant could not obtain relief because he was sentenced within the presumptive range. Further, the court did not consider the improperly found aggravating factors in sentencing defendant.\n\u2022 Appeal by Defendant from judgments entered 14-April 2010 by Judge W. Erwin Spainhour in Stanly County Superior Court. Heard in the Court of Appeals 9 March 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General Celia Grasty Lata, for the State.\nMichael E. Casterline, for Defendant." }, "file_name": "0238-01", "first_page_order": 248, "last_page_order": 258 }