{ "id": 8524160, "name": "STATE OF NORTH CAROLINA v. JAMES WILLIAM JONES", "name_abbreviation": "State v. Jones", "decision_date": "1988-04-19", "docket_number": "No. 8715SC674", "first_page": "584", "last_page": "598", "citations": [ { "type": "official", "cite": "89 N.C. App. 584" } ], "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": "309 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "evidence of defendant's act of fellatio with son permitted at defendant's trial for sodomy with son" } ], "opinion_index": 0 }, { "cite": "309 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760895 ], "year": 1983, "pin_cites": [ { "parenthetical": "evidence of defendant's act of fellatio with son permitted at defendant's trial for sodomy with son" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0742-01" ] }, { "cite": "276 S.E. 2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645332 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0418-01" ] }, { "cite": "334 S.E. 2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527741 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0628-01" ] }, { "cite": "352 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "237 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "293 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564024 ], "year": 1977, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0321-01" ] }, { "cite": "325 S.E. 2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "224 S.E. 2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "290 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560084 ], "year": 1976, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0016-01" ] }, { "cite": "98 L.Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "357 S.E. 2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "49 L.Ed. 2d 1209", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6182756, 6181252, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182388, 6182964, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-10", "/us/428/0903-01", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-08", "/us/428/0903-11", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "215 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0 }, { "cite": "287 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564430 ], "year": 1975, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0645-01" ] }, { "cite": "336 S.E. 2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "314 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696312 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0618-01" ] }, { "cite": "340 S.E. 2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "435" } ], "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "307 S.E. 2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "evidence of defendant's sexual abuse of two older step-daughters permitted at defendant's trial for attempted first-degree rape of third step-daughter" } ], "opinion_index": 0 }, { "cite": "307 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566186, 8566284, 8566255, 8566161, 8566229 ], "year": 1983, "pin_cites": [ { "parenthetical": "evidence of defendant's sexual abuse of two older step-daughters permitted at defendant's trial for attempted first-degree rape of third step-daughter" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0699-02", "/nc/307/0699-05", "/nc/307/0699-04", "/nc/307/0699-01", "/nc/307/0699-03" ] }, { "cite": "297 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526808 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0504-01" ] }, { "cite": "340 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714140 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0762-01" ] }, { "cite": "279 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "303 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574100 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0507-01" ] }, { "cite": "346 S.E. 2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773847 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0568-01" ] }, { "cite": "358 S.E. 2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729670, 4730118, 4726092, 4725548, 4724635 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0174-01", "/nc/320/0174-04", "/nc/320/0174-02", "/nc/320/0174-03", "/nc/320/0174-05" ] }, { "cite": "354 S.E. 2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169578 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0001-01" ] }, { "cite": "350 S.E. 2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732149 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0590-01" ] }, { "cite": "337 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "841" }, { "page": "841", "parenthetical": "citations omitted" }, { "page": "841" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "86" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "342 S.E. 2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702435, 4700936, 4701205, 4704606, 4699167 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0382-02", "/nc/316/0382-03", "/nc/316/0382-01", "/nc/316/0382-04", "/nc/316/0382-05" ] }, { "cite": "338 S.E. 2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "112-13" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522737 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0565-01" ] }, { "cite": "323 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755385 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0361-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" }, { "page": "66" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "97 S.E. 2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625415 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0193-01" ] }, { "cite": "126 S.E. 2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567591 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0326-01" ] }, { "cite": "88 L Ed 2d 15", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6196542 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/474/0015-01" ] }, { "cite": "415 US 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174956 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/us/415/0308-01" ] }, { "cite": "380 US 415", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525326 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/us/380/0415-01" ] }, { "cite": "96 L.Ed. 2d 631", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6219896 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "641" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/us/482/0730-01" ] } ], "analysis": { "cardinality": 1138, "char_count": 32399, "ocr_confidence": 0.806, "pagerank": { "raw": 4.78347664424127e-07, "percentile": 0.9308637298931328 }, "sha256": "7061ed380ca8a2e00f4b4b8acba1680cb7351a710c642724af31358493084dd5", "simhash": "1:4eabc16e4feb8d54", "word_count": 5239 }, "last_updated": "2023-07-14T22:39:00.818604+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Phillips concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES WILLIAM JONES" ], "opinions": [ { "text": "ORR, Judge.\nI.\nDefendant contends the trial court erred in excluding him from the voir dire hearing during the victim\u2019s testimony to determine her competency to testify.\nPrior to examining the victim, the judge heard the testimony of the victim\u2019s psychologist, Dr. Betty Gordon. Dr. Gordon, a clinical child psychologist specializing in sexual abuse, testified that the victim exhibited an intense fear of the defendant and that she could suffer emotional harm if forced to testify in his presence.\nBased upon Dr. Gordon\u2019s testimony, the judge secluded defendant in the judge\u2019s chambers with a closed circuit television, when the victim was examined.\nThe television allowed defendant to see and hear the victim\u2019s testimony. In addition, defendant and his attorney were authorized to confer after the victim\u2019s direct examination and prior to culmination of the victim\u2019s cross-examination. Defendant\u2019s attorney was present in the courtroom throughout the victim\u2019s testimony and had an unrestricted opportunity to cross-examine her.\nAfter the voir dire hearing, the trial court concluded the victim was incompetent to testify at trial, and declared her to be an unavailable witness.\nA. Defendant argues his exclusion from the courtroom violated his Sixth Amendment right to confrontation under the United States Constitution, and his rights under Article I, \u00a7\u00a7 18, 19 or 23 of the North Carolina Constitution.\nThe legality of excluding a defendant from the courtroom during a competency hearing is an issue of first impression in North Carolina. However, this issue was recently addressed by the U.S. Supreme Court in Kentucky v. Stincer, 482 U.S. \u2014, 96 L.Ed. 2d 631 (1987).\nIn Stincer the defendant was excluded from a hearing determining the competency of a young girl and a young boy the defendant was charged with sexually abusing. The Stincer court did not provide the defendant with either a closed circuit television or the opportunity to confer with his attorney while excluded. The trial court in Stincer found the children competent to testify; therefore, the defendant had an opportunity to effectively cross-examine the children at trial. This opportunity to cross-examine, the U.S. Supreme Court held, prevented defendant\u2019s Sixth Amendment right to confrontation from being violated by his exclusion from the courtroom during voir dire.\nThe U.S. Supreme Court discussed the purpose and protections of the Sixth Amendment Confrontation clause in Stincer, saying:\nThe Court has emphasized that \u2018a primary interest secured by [the Sixth Amendment Confrontation Clause] is the right of cross-examination.\u2019 Douglas v. Alabama, 380 US 415, 418, 13 L Ed 2d 934, 85 S Ct 1074 (1965). The opportunity for cross-examination, protected by the Confrontation Clause, is critical for ensuring the integrity of the fact-finding process. Cross-examination is \u2018the principal means by which the believability of a witness and the truth of his testimony are tested.\u2019 Davis v. Alaska, 415 US 308, 316, 39 L Ed 2d 347, 94 S Ct 1105 (1974).\nStincer, 482 U.S. at \u2014, 96 L.Ed. 2d at 641.\nOf course, the Confrontation Clause guarantees only \u2018an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.\u2019 Delaware v. Fensterer, 474 US, at 20, 88 L Ed 2d 15, 106 S Ct 292 (emphasis in original). This limitation is consistent with the concept that the right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial.\nId. at \u2014, 96 L.Ed. 2d at 643.\nBased on the decision in Stincer, we conclude the determinative question in the present case is whether defendant\u2019s exclusion from the courtroom interfered with his opportunity for effective cross-examination.\nThe record shows that after direct examination of the victim ended, defendant\u2019s attorney cross-examined her. When the attorney had completed his own cross-examination, he left the room briefly, conferred with defendant and then returned to ask the victim several more questions before ending all cross-examination.\nDefendant heard the complete testimony of the victim during her direct examination and her initial cross-examination. After the initial cross-examination, defendant was able to confer with his attorney and bring to his attorney\u2019s attention any discrepancies in the victim\u2019s testimony or any crucial unaddressed issues requiring further cross-examination. Thus, defendant, although absent from the courtroom, was able to hear all testimony, interact freely with his attorney, and through his attorney confront the victim, thereby accomplishing effective cross-examination.\nWe conclude the procedures enacted by the trial court under the facts of this case did not violate defendant\u2019s Sixth Amendment right to confrontation.\nB. We also conclude the exclusion of defendant did not violate Article I, \u00a7\u00a7 18, 19 or 23 of the North Carolina Constitution.\nSpecifically, we address Article I, \u00a7 18, which states in pertinent part, \u201cAll court shall be open . . . .\u201d Prior case law in North Carolina holds a defendant has a constitutional right to be present at all stages of a court proceeding so that he may hear the evidence and have an opportunity to refute it. State v. Pope, 257 N.C. 326, 126 S.E. 2d 126 (1962); Raper v. Berrier, 246 N.C. 193, 97 S.E. 2d 782 (1957).\nWe find the trial court\u2019s use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim\u2019s testimony, were sufficient to permit defendant to hear the evidence and to refute it. Therefore, defendant\u2019s rights under the North Carolina Constitution were also fully protected.\nII.\nDefendant next contends the hearsay evidence rule prohibited Deborah Matthews, Randell Matthews, and Nancy Berson from testifying as to statements made by the victim.\nAt trial the victim\u2019s mother, Deborah Matthews, and father, Randell Matthews, testified that on 19 July 1986 at approximately 8:00 p.m. the victim told the mother in the presence of the father that \u201cPoppy pulled my pants down and touched my pee patch again.\u201d The parents further testified that the victim, when asked what she meant by again, responded that Poppy had touched her another time, \u201cAnd he wiggled his finger around in my pee patch and hurt me.\u201d The victim\u2019s mother also testified that the victim described her vaginal area as her \u201cpee patch.\u201d\nIn addition, Nancy Berson, a social worker and Coordinator and Child Evaluator for the Duke Child Protection Team, testified she had interviewed the victim on 16 and 17 October 1986 at the Duke Medical Center Pediatric Clinic. During the interview, the victim told Ms. Berson that she had been sleeping with Nanny, her grandmother, when Poppy, her step-grandfather, \u201csnuck up and got [her]\u201d and took her to another room, where he hurt her pee patch with his hand. Ms. Berson also testified that the victim \u201cpulled down her bottom lip just like this to demonstrate the gums, and she said, \u2018Poppy hurt me here,\u2019 and I said, \u2018Well, how did he hurt you?\u2019 and she said he put his peter in her mouth. While saying this, before I could say anything else, she said to me, \u2018It made me sick, it made me heave.\u2019 \u201d\nTo introduce hearsay evidence in a criminal trial, the prosecution must meet two requirements: (1) it must show the necessity for using hearsay testimony, and (2) it must establish the inherent trustworthiness of the original declaration. Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597 (1980); State v. Smith, 312 N.C. 361, 323 S.E. 2d 316 (1984); State v. Gregory, 78 N.C. App. 565, 338 S.E. 2d 110 (1985), appeal dismissed and disc. rev. denied, 316 N.C. 382, 342 S.E. 2d 901 (1986).\nIn the present case, the trial court, after holding a N.C.G.S. \u00a7 8C-1, Rule 601(b) competency hearing, found the victim incompetent to testify at trial. Since the State\u2019s case against defendant consisted mainly of the victim\u2019s statements, \u201c[t]he unavailability of the victim due to incompetency and the evidentiary importance of the victim\u2019s statements adequately demonstrate^] the necessity\u201d requirement of the two-part hearsay test. State v. Gregory, 78 N.C. App. at 568, 338 S.E. 2d at 112-13.\nThe second part of the test, a showing that the hearsay statement is inherently trustworthy, is established when the evidence falls within a statutory hearsay exception. N.C.G.S. \u00a7 8C-1, Rule 802 (1986); accord, Ohio v. Roberts, 448 U.S. at 66, 65 L.Ed. 2d at 608.\nTherefore, to determine the admissibility of the State\u2019s evidence, we must examine the facts underlying each of the victim\u2019s statements, testified to by the witnesses, to see if they fall within an exception to the hearsay evidence rule.\nA. Testimony of mother, Deborah Matthews.\nThe State contends Mrs. Matthews\u2019 testimony was admissible under Rule 803(4), the statutory exception for statements made for purposes of medical diagnosis or treatment. N.C.G.S. \u00a7 8C-1, Rule 803(4) (1986); State v. Smith, 315 N.C. 76, 337 S.E. 2d 833 (1985); State v. Gregory, 78 N.C. App. 565, 338 S.E. 2d 110.\nRule 803(4) permits admission of:\nStatements 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.\nIn State v. Smith, 315 N.C. 76, 337 S.E. 2d 833, the Supreme Court found Rule 803(4) permitted admission of hearsay on facts similar to those in the present case. In Smith, two young girls, ages four and five, told their grandmother that a family friend had sexually assaulted them. In response to the children\u2019s statements, the grandmother immediately obtained medical care for the children. The Supreme Court said that although the children did not specifically request medical care, they had sought help for their conditions from their caretaker, and their statements resulted in immediate medical treatment and diagnosis. Therefore, the Supreme Court held the children\u2019s conversation with the grandmother, identifying the type of sexual assault they had suffered and their attacker, was properly admitted as substantive evidence pursuant to the Rule 803(4) hearsay exception.\nHere, the four-year-old victim told her mother, Mrs. Matthews, that defendant had sexually assaulted her. The mother responded to the victim\u2019s statements by immediately calling a doctor and then taking the victim to the hospital. Consequently, the victim\u2019s conversation with her mother caused her to receive immediate medical treatment.\nWe find no significant difference between the facts in State v. Smith, 315 N.C. 76, 337 S.E. 2d 833 and the present facts. We conclude the trial court properly admitted the mother\u2019s testimony at trial, pursuant to Rule 803(4).\nB. Testimony of Nancy Berson.\n(1) The State argues Ms. Berson\u2019s testimony describing the victim\u2019s identification of defendant as her attacker was also admissible under Rule 803(4) as statements made for purposes of medical diagnosis and treatment.\nStatements made to a medical worker, if pertinent to diagnosis or treatment, are admissible under Rule 803(4). State v. Aguallo, 318 N.C. 590, 350 S.E. 2d 76 (1986); State v. Oliver, 85 N.C. App. 1, 354 S.E. 2d 527, disc. rev. denied, 320 N.C. 174, 358 S.E. 2d 64 (1987).\nDefendant argues the victim\u2019s statements to Ms. Berson do not fall under Rule 803(4) because Ms. Berson\u2019s actions were not for the purpose of treatment or diagnosis, but were instead for the purpose of gathering evidence for the State.\nIn determining the purpose of a medical examination our Courts have considered the following factors: (1) whether the examination was requested by persons involved in the prosecution of the case; (2) the proximity of the examination to the victim\u2019s initial diagnosis; (3) whether the victim received a diagnosis or treatment as a result of the examination; and (4) the proximity of the examination to the trial date. State v. Stafford, 317 N.C. 568, 346 S.E. 2d 463 (1986); State v. Oliver, 85 N.C. App. 1, 354 S.E. 2d 527.\nThe victim\u2019s mother took her for evaluation by the Duke Child Protection Team (Team) on the recommendation of the prosecuting attorney, Mr. White, and the child\u2019s psychologist, Dr. Betty Gordon.\nThe recommendation of the prosecuting attorney, while suspect, does not automatically render Ms. Berson\u2019s testimony inadmissible. As social worker Donna Somers testified, because defendant was not a primary caretaker of the child, social services could not become involved in the case. Consequently, when the child began to exhibit physical and behavioral problems, the mother asked Mr. White for advice instead of turning to a social worker. Mr. White referred the victim\u2019s mother to Dr. Betty Gordon, a child psychologist specializing in the evaluation and treatment of sexually abused children. He also referred the mother to the Team for a disclosure interview and medical exam, to determine if there was medical evidence of sexual abuse.\nThe victim\u2019s mother took the child to Dr. Gordon for treatment on 13 October 1986, at which time Dr. Gordon also recommended the child be evaluated by the Team.\nThe victim was examined and evaluated by the Team on 16 and 17 October 1986, approximately three months after her molestation. Prior to the Team\u2019s examination, the victim had been treated several times by Dr. Carol Kline, M.D., and once by Dr. Betty Gordon, a psychologist.\nDr. Kline testified, however, that when she examined the child she was not looking for signs of sexual abuse. Consequently, the victim\u2019s examination by the Team was the first time she was physically evaluated for the purpose of medically diagnosing sexual abuse. In addition, Dr. Gordon did not conduct a disclosure interview with the victim as part of her treatment upon learning the Team would be evaluating the victim.\nMs. Berson explained at trial that a Team evaluation for sexual abuse of a child consisted of two parts: a disclosure interview and a physical examination. Ms. Berson testified that a disclosure interview sought to elicit information about the molestation for the purpose of aiding the medical examination and diagnosis of the victim\u2019s condition.\nAfter evaluating the victim\u2019s disclosure interview and medical examination, the Team diagnosed the victim as having been sexually abused.\nFinally, the record shows the disclosure interview and diagnosis by the Team occurred approximately four months before trial, and that after the Team diagnosed the victim as sexually abused, she received psychological treatment for her condition from Dr. Gordon.\nBased upon the evidence discussed above, this Court finds the victim\u2019s statements to Ms. Berson were made for the purpose of medical diagnosis. We conclude the trial court properly admitted Ms. Berson\u2019s testimony under the Rule 803(4) exception to hearsay.\n(2) Defendant also challenges Ms. Berson\u2019s testimony that the victim said defendant had put \u201chis peter in her mouth.\u201d\nDefendant argues this evidence was inadmissible for two reasons. First, he asserts the testimony was prohibited by N.C.G.S. \u00a7 8C-1, Rule 404(b), which provides:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nNorth Carolina courts have been \u201cvery liberal in admitting evidence of similar sex crimes in construing the exceptions to the general rule [stated in N.C.G.S. \u00a7 8C-1, Rule 404(b)].\u201d State v. Williams, 303 N.C. 507, 513, 279 S.E. 2d 592, 596 (1981); State v. DeLeonardo, 315 N.C. 762, 340 S.E. 2d 350 (1986).\nIn four cases involving sexual abuse of children, the Supreme Court and the Court of Appeals have permitted testimony of other sex acts, similar in nature and circumstances, for the purpose of showing a common plan or scheme on the part of the defendant to commit the crime charged. State v. DeLeonardo, 315 N.C. 762, 340 S.E. 2d 350 (evidence of defendant\u2019s sexual abuse of daughter permitted at defendant\u2019s trial for sexual abuse of two sons); State v. Effler, 309 N.C. 742, 309 S.E. 2d 203 (1983) (evidence of defendant\u2019s act of fellatio with son permitted at defendant\u2019s trial for sodomy with son); State v. Williams, 303 N.C. 507, 279 S.E. 2d 592 (evidence of defendant\u2019s fondling of girl\u2019s breasts permitted at defendant\u2019s trial for first-degree sexual offense with two other girls); State v. Goforth, 59 N.C. App. 504, 297 S.E. 2d 128 (1982), disc. rev. allowed for limited purpose on other grounds, 307 N.C. 699, 307 S.E. 2d 162 (1983) (evidence of defendant\u2019s sexual abuse of two older step-daughters permitted at defendant\u2019s trial for attempted first-degree rape of third step-daughter).\nIn the present case, as in DeLeonardo, Effler, Williams and Goforth, the challenged evidence tends to establish a common plan or scheme on the part of defendant to sexually abuse the victim, his step-granddaughter. Thus, the evidence relating to defendant\u2019s other sexual activity with the victim was properly admitted under Rule 404(b).\nDefendant finally contends this testimony, if admissible under Rule 404(b), should have been excluded pursuant to N.C.G.S. \u00a7 8C-1, Rule 403, because its probative value was substantially outweighed by the danger of unfair prejudice.\nWhether or not to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, \u201cand his ruling may be reversed for an abuse of discretion only upon a showing that it \u2018was so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d State v. Mason, 315 N.C. 724, 731, 340 S.E. 2d 430, 435 (1986), quoting State v. Thompson, 314 N.C. 618, 626, 336 S.E. 2d 78, 82 (1985).\nThe record discloses no evidence of an abuse of discretion by the trial court. Therefore, we overrule this assignment of error.\nC. Testimony of father, Randell Matthews.\nDefendant further contends the father\u2019s testimony concerning the victim\u2019s statements violated the hearsay evidence rule. The State argues this testimony was admissible under the excited utterance hearsay exception, N.C.G.S. \u00a7 8C-1, Rule 803(2) as: \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\n\u201cIn 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. McCormick on Evidence \u00a7 297.\u201d State v. Smith, 315 N.C. 76, 86, 337 S.E. 2d 833, 841 (1985).\nThe Supreme Court addressed the admissibility of statements made by young children, and testified to in court by the adult to whom they were made, as Rule 803(2) excited utterance exceptions to the hearsay rule in State v. Smith, 315 N.C. 76, 337 S.E. 2d 833.\nThe Court in Smith found \u201cthat the stress and spontaneity upon which the exception is based is often present for longer periods of time in young children than in adults.\u201d State v. Smith, 315 N.C. at 87, 337 S.E. 2d at 841 (citations omitted).\n\u2018This ascertainment of prolonged stress is born of three observations. First, a child is apt to repress the incident. Second, it is often unlikely that a child will report this kind of incident to anyone but the mother. Third, the characteristics of young children work to produce declarations \u201cfree of conscious fabrication\u201d for a longer period after the incident than with adults.\u2019 Padilla, 110 Wis. 2d at 419, 329 N.W. 2d at 266 (citations omitted).\nId. at 87-88, 337 S.E. 2d at 841.\nHere, the victim entered the bedroom where her parents were watching television, walked over to her mother, and said, \u201cMama, Poppy pulled my pants down and touched my pee patch again.\u201d The victim made this statement within ten hours after leaving defendant\u2019s custody. She reported the incident specifically to her mother, and she made the statement without hesitation and without prompting by her parents.\nThese facts are sufficient to show that the victim\u2019s statements were a spontaneous reaction to a startling experience, as defined in Smith. We conclude the trial court properly admitted the father\u2019s testimony as to the victim\u2019s statements under the hearsay exception for excited utterances, Rule 803(2).\nIII.\nDefendant further argues the trial court erred in qualifying State\u2019s witness Marcia Herman-Giddens, a physician\u2019s assistant, as an expert in the area of child sexual abuse.\n\u201cWhether the witness has the requisite skill to qualify him as an expert is chiefly a question of fact, the determination of which is ordinarily within the exclusive province of the trial judge. . . . A finding by the trial judge that the witness possesses the requisite skill will not be reversed on appeal unless there is no evidence to support it. . . .\u201d State v. King, 287 N.C. 645, 658, 215 S.E. 2d 540, 548-49 (1975), death sentence vacated, 428 U.S. 903, 49 L.Ed. 2d 1209 (1976); State v. Zuniga, 320 N.C. 233, 357 S.E. 2d 898, cert. denied, \u2014 U.S. \u2014, 98 L.Ed. 2d 384 (1987).\nAt trial, Ms. Herman-Giddens testified that she specialized in the area of child abuse and that she had taught for eight years, as an assistant professor, in the Duke University Pediatrics Department. She further said she had published numerous articles in medical journals and had edited one pediatric textbook on the topic of diagnosis and evaluation of sexually abused children. She also testified that she had served as an expert witness in the area of sexual abuse of children at several dozen prior trials.\nMs. Herman-Giddens\u2019 testimony that the victim had been sexually abused was, therefore, based upon her training and experience in the area of sexual abuse of children. Since there is evidence to support the trial court\u2019s conclusion that Ms. Herman-Giddens is an expert in child sexual abuse, we find no abuse of discretion in the admission of her testimony.\nH-< <\nDefendant challenges two actions taken by the trial court during his administration of the trial.\nThe presiding judge is given large discretionary power as to the conduct of a trial. Generally, in the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the court, are within his discretion.\nState v. Rhodes, 290 N.C. 16, 23, 224 S.E. 2d 631, 635 (1976); State v. Young, 312 N.C. 669, 325 S.E. 2d 181 (1985).\nDefendant first contends the trial court erred in notifying the jury that the victim had been found an incompetent witness and would not testify at trial.\nAfter reviewing the record we find defendant\u2019s evidence did not show the trial court\u2019s statement to the jury lacked a rational basis. Thus, defendant failed to establish an abuse of discretion. State v. Mason, 315 N.C. 724, 340 S.E. 2d 430; State v. Thompson, 314 N.C. 618, 336 S.E. 2d 78.\nNext, defendant argues the trial court erred in permitting the district attorney to present the victim to the jury, when the victim would not be testifying.\nWe reject defendant\u2019s second argument because he failed to preserve in the record any evidence showing that the victim was, in fact, presented to the jury at trial.\nAccordingly, we find that defendant\u2019s evidence in support of both arguments was insufficient to show that the trial court\u2019s actions constituted either an abuse of discretion or prejudicial error. We overrule these assignments of error.\nV.\nDefendant argues the State\u2019s evidence was insufficient to establish he acted \u201cfor the purpose of arousing or gratifying sexual desire,\u201d pursuant to N.C.G.S. \u00a7 14-202.1, when he assaulted the victim. Therefore, he asserts the trial court improperly denied his motions to dismiss.\nUpon a motion to dismiss, \u201call of the evidence favorable to the State, whether competent or incompetent, must be considered, such evidence must be deemed true and considered in the light most favorable to the State, discrepancies and contradictions therein are disregarded and the State is entitled to every inference of fact which may be reasonably deduced therefrom.\u201d State v. Witherspoon, 293 N.C. 321, 326, 237 S.E. 2d 822, 826 (1977); State v. Etheridge, 319 N.C. 34, 352 S.E. 2d 673 (1987).\nWe have addressed this specific question in two prior cases, State v. Slone, 76 N.C. App. 628, 334 S.E. 2d 78 (1985) and State v. Campbell, 51 N.C. App. 418, 276 S.E. 2d 726 (1981). In each of these cases we noted that \u201c[a] defendant\u2019s purpose, being a mental attitude, is seldom provable by direct evidence and must ordinarily be proven by inference.\u201d State v. Campbell, 51 N.C. App. at 421, 276 S.E. 2d at 729.\nHere the evidence tends to show that defendant moved the victim to an isolated room, where he pulled her underwear down and rubbed her vagina with his finger. We conclude this evidence was sufficient to permit the jury to infer defendant took indecent liberties with the victim for the purpose of arousing or gratifying his sexual desire. We overrule this assignment of error.\nVI.\nFinally, defendant contends the State\u2019s use of hearsay evidence violated his right to confrontation under the Sixth Amendment of the United States Constitution and Article I, \u00a7 25 of the North Carolina Constitution.\nWe find this argument to be without merit. The U.S. Supreme Court in Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597 held that the admission of hearsay evidence at trial did not violate the confrontation clause, when the declarant was unavailable to testify and his statement bore adequate \u201cindicia of reliability.\u201d The U.S. Supreme Court further said that \u201c[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.\u201d Id. at 66, 65 L.Ed. 2d at 608.\nAs previously discussed, the hearsay evidence presented by the State was admissible under established exceptions to the hearsay evidence rule. Accordingly, we overrule this assignment of error.\nFor the reasons given above, we conclude defendant received a fair trial free from prejudicial error.\nNo error.\nJudges Johnson and Phillips concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Debra K. Gilchrist, for the State.", "Daniel H. Monroe, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES WILLIAM JONES\nNo. 8715SC674\n(Filed 19 April 1988)\n1. Constitutional Law \u00a7 66\u2014 competency of child victim \u2014exclusion of defendant from courtroom during voir dire testimony\nIn a prosecution for taking indecent liberties with a four-year-old child, the trial court\u2019s exclusion of defendant from the courtroom during testimony by the victim in a voir dire hearing to determine the victim\u2019s competency to testify at trial did not violate defendant\u2019s right to confrontation under the Sixth Amendment to the U.S. Constitution or his rights under the open courts provision of Art. I, \u00a7 18 of the N.C. Constitution where a child psychologist testified that the victim exhibited an intense fear of defendant and could suffer emotional harm if forced to testify in his presence; the trial judge secluded defendant in the judge\u2019s chambers with a closed circuit television when the victim testified; defendant\u2019s attorney was present in the courtroom throughout the victim\u2019s testimony; defendant and his attorney were permitted to confer after the victim\u2019s direct testimony and before completion of cross-examination of her; defendant\u2019s attorney had an unrestricted oportunity to cross-examine the victim; and the trial court concluded that the victim was incompetent to testify at trial.\n2. Criminal Law \u00a7 73\u2014 hearsay testimony \u2014 when admissible\nThe unavailability of the child victim due to incompetency and the eviden-tiary importance of the victim\u2019s statements meet the necessity requirement of the two-part test for the admission of hearsay evidence. The second part of the test, which requires a showing that the hearsay statement is inherently trustworthy, is met when the evidence falls within a statutory hearsay exception.\n3. Criminal Law \u00a7 73.5\u2014 sexual assault \u2014 statements by child victim to mother \u2014 medical diagnosis exception to hearsay rule\nTestimony that the four-year-old victim told her mother that defendant had sexually assaulted her was admissible under the medical diagnosis exception to the hearsay rule provided by N.C.G.S. \u00a7 8C-1, Rule 803(4) where the victim\u2019s statements to her mother resulted in immediate medical care for the victim.\n4. Criminal Law 8 73.5\u2014 child\u2019s statements to social worker \u2014 medical diagnosis exception to hearsay rule\nTestimony by a social worker who was a member of the Duke Child Protection Team describing a child victim\u2019s identification of defendant as the person who committed indecent liberties upon her was admissible under the medical diagnosis exception to the hearsay rule, notwithstanding the child was examined and evaluated by the Team three months after the molestation upon the recommendation of the district attorney, where the witness\u2019s interview of the victim sought to elicit information about the molestation for the purpose of aiding a physical examination and diagnosis of the victim\u2019s condition, and the victim received psychological treatment after the Team diagnosed her as sexually abused.\n5. Criminal Law \u00a7 34.8\u2014 evidence of another crime \u2014 competency to show common plan\nIn a prosecution of defendant for taking indecent liberties by rubbing the child victim\u2019s vagina with his finger, a social worker\u2019s testimony that the victim stated that defendant had also put \u201chis peter in her mouth\u201d was admissible under N.C.G.S. \u00a7 8C-1, Rule 404(b) to establish a common plan or scheme by defendant to sexually abuse the victim. Furthermore, the trial court was not required to exclude this testimony under Rule 403 on the ground that its' probative value was substantially outweighed by the danger of unfair prejudice.\n6. Criminal Law \u00a7 73.4\u2014 child\u2019s statements to parents \u2014 admissibility as excited utterances\nStatements made by a child victim to her parents within ten hours after leaving defendant\u2019s custody that defendant \u201cpulled my pants down and touched my pee patch again\u201d and that he had done so before were admissible as excited utterances under N.C.G.S. \u00a7 8C-1, Rule 803(2).\n7. Criminal Law \u00a7 51.1\u2014 expert in child abuse \u2014 sufficient showing\nThe trial court did not err in permitting a physician\u2019s assistant to testify as an expert in child abuse where the witness testified that she has taught as an assistant professor in the Duke University Pediatrics Department; she has published numerous articles in medical journals and has edited a pediatric textbook on the topic of diagnosis and evaluation of sexually abused children; and she has served as an expert witness in the area of sexual abuse of children at several dozen trials.\n8. Witnesses \u00a7 1.2\u2014 informing jury that child witness incompetent\nThe trial court in an indecent liberties case did not err in informing the jury that the four-year-old victim had been found incompetent to testify as a witness at the trial.\n9. Rape and Allied Offenses \u00a7 19\u2014 indecent liberties with child \u2014 sufficient evidence\nThe evidence was sufficient to permit the jury to infer that defendant took indecent liberties with the child victim for the purpose of gratifying his sexual desire where it tended to show that defendant moved the victim to an isolated room where he pulled down her underwear and rubbed her vagina with his finger.\n10.Constitutional Law \u00a7 66\u2014 State\u2019s use of hearsay \u2014 no violation of right to confrontation\nDefendant\u2019s right to confrontation under the Sixth Amendment to the U.S. Constitution and Art. I, \u00a7 25 of the N.C. Constitution was not violated by the State\u2019s use of hearsay evidence where the declarant was unavailable to testify and the evidence was admissible under established exceptions to the hearsay rule.\nAPPEAL by defendant from Battle, Judge. Judgment entered 11 February 1987 in Superior Court, ALAMANCE County. Heard in the Court of Appeals 12 January 1988.\nDefendant was indicted and convicted of taking indecent liberties with a four-year-old child, in violation of N.C.G.S. \u00a7 14-202.1. From a judgment sentencing defendant to a five year active term, he appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Debra K. Gilchrist, for the State.\nDaniel H. Monroe, for defendant-appellant." }, "file_name": "0584-01", "first_page_order": 612, "last_page_order": 626 }