{ "id": 4715827, "name": "STATE OF NORTH CAROLINA v. SYLVESTER SMITH", "name_abbreviation": "State v. 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SYLVESTER SMITH" ], "opinions": [ { "text": "MEYER, Justice.\nThe State\u2019s evidence tended to show that one night during the weekend of 2 March 1984, the defendant, Sylvester Smith, entered the bedroom of Gloria Ogundeji and Janell Smith, age four and five, respectively, and engaged in sexual relations with both girls. Gloria is the daughter of Ann Ogundeji with whom the defendant was then living. Janell is Gloria\u2019s cousin, daughter of Ann\u2019s sister, Catherine. During the time in question, Janell was staying with Ann, Sylvester, Gloria, and Sylvester, Jr., in a mobile home. The victims\u2019 grandmother is Mrs. Fannie Mae Davis.\nAt trial, Gloria testified that the defendant came into the bedroom where she and Janell were sleeping, slipped off her pants, and touched her in her \u201cproject\u201d with his \u201cworm.\u201d She denied at trial that he had touched her anywhere else. Janell testified that the defendant threatened to beat her \u201chalf to death,\u201d pushed her down on the bed, and stuck his \u201cthing in my project.\u201d She also testified that he \u201cstick [sic] his hand in my butt.\u201d\nAt trial, each victim was sequestered during the other\u2019s testimony. The girls were asked to show the jury where their \u201cproject\u201d was, and both independently pointed to their vaginal areas. Gloria indicated the same area when asked to show where the \u201cworm\u201d is, and also identified both the \u201cproject\u201d and the \u201cworm\u201d on anatomically correct dolls used as exhibits at trial. Janell pointed to her anal area when asked to show where her \u201cbutt\u201d is.\nThe State called Minerva Glidden and Elena Peterson, both of whom were Rape Task Force volunteers in Wilmington. Ms. Glidden had worked with Gloria following the incident, and Ms. Peterson had worked with Janell. The trial judge had allowed defendant\u2019s request that these witnesses be sequestered during the children\u2019s testimony over the State\u2019s objection that their presence was crucial in order that the girls feel at ease during their testimony.\nMinerva Glidden, a registered nurse and Rape Task Force volunteer, testified that she was called to the New Hanover Memorial Hospital emergency room at around 1:45 p.m. on 5 March 1984, where she first met Gloria. Over defendant\u2019s request for a limiting instruction on corroboration, Ms. Glidden was allowed to testify that Gloria told her that defendant had put his finger in Gloria\u2019s \u201cproject,\u201d then he put his finger in her \u201cbutt.\u201d Ms. Glidden said Gloria had indicated her vaginal and anal areas. She also testified that Gloria told her the defendant had gotten on top of her and put his \u201cpeeter-weeter\u201d in her \u201cproject.\u201d Gloria had indicated that as the penis on an anatomically correct doll.\nMs. Peterson, Rape Task Force Coordinator, testified that she had first met Janell on 7 March 1984. Over a general objection by the defendant, Ms. Peterson recounted what Janell told her about the incident. \u201cThe story was that Sylvester put his \u2018thing\u2019 in her \u2018project.\u2019 And he stuck his finger in her \u2014 in her \u2018butt.\u2019 And that if she told anybody, that he would beat her half to death.\u201d\nMrs. Fannie Mae Davis, the girls\u2019 grandmother, testified that she went to the mobile home where Sylvester, Ann, Gloria, and Janell were living on 3 March 1984 and that Gloria had led her into the bedroom to tell her \u201cwhat Sylvester done [sic] to me.\u201d Gloria told Mrs. Davis that \u201cSylvester had went [sic] in her and had, you know, hurt her; and in her \u2018butt\u2019 area, he put his hand there.\u201d \u201cShe said he pressed his \u2018peeter\u2019 in her \u2018project;\u2019 and in her \u2018butt,\u2019 his finger.\u201d Gloria told Mrs. Davis that Sylvester had told her to go in the bathroom and wash the blood off.\nMrs. Davis told her daughter Ann what Gloria had said and told Ann to take the child to the hospital. Ann later testified that she and Gloria hitchhiked to the hospital in the rain. Mrs. Davis and her husband met Janell at the mobile home when Janell came home from school that afternoon. Janell\u2019s mother, Catherine, then took Janell to New Hanover Memorial Hospital. Both Gloria and Janell were examined at the hospital by Dr. Alfred Woodworth on 5 March 1984.\nDr. Woodworth testified that his examination of Gloria revealed \u201ca well-circumscribed area of bruising around the vaginal opening\u201d on the interior of the labia. He stated that it was his opinion that a \u201cmale penis\u201d caused the trauma he observed. Dr. Woodworth also discovered the presence of protozoa trichomonas, an organism transmitted primarily through sexual contact.\nDr. Woodworth testified that his examination of Janell revealed \u201cmarked redness and irritation, with areas of contusions, . . . around the vaginal opening.\u201d He stated that a finger or penis could have caused Janell\u2019s injuries. His examinations revealed no presence of sperm, and he noted that Gloria\u2019s hymenal ring was intact.\nThe defendant, Sylvester Smith, took the stand and denied any knowledge of the incidents.\nDefendant first assigns as error the trial court\u2019s failure to instruct the jury that the testimony of Minerva Glidden, Elena Peterson, and Fannie Mae Davis was to be considered for the limited purpose of corroborating the victims\u2019 testimony. At trial, defendant requested an instruction limiting to corroboration the jury\u2019s consideration of Ms. Glidden\u2019s testimony as to what Gloria told her. The trial judge stated that he would instruct the jury at the appropriate time and that the defendant could hand up whatever instructions he wished. (Defendant subsequently tendered limiting instructions for the jury charge, and they were refused.) Prior to Ms. Peterson\u2019s and Mrs. Davis\u2019 testimony regarding what Janell and Gloria told them about the incidents, defendant made general objections, both of which were overruled.\nThe law of this State is that an instruction limiting admissibility of testimony to corroboration is not required unless counsel specifically requests such an instruction. A general objection will not suffice. State v. Spain, 3 N.C. App. 266, 164 S.E. 2d 486 (1968). See also State v. Sauls, 291 N.C. 253, 230 S.E. 2d 390 (1976), cert. denied, 431 U.S. 916 (1977); State v. Bryant, 282 N.C. 92, 191 S.E. 2d 745 (1972). Although defendant properly requested a limiting instruction as to Ms. Glidden\u2019s testimony at the time it was offered, he did not do so as to the testimony of Mrs. Davis and Ms. Peterson. The record does show, however, that defendant made a written request for a jury instruction on corroboration. The trial judge, in his charge to the jury, did not give defendant\u2019s requested instruction and noted defendant\u2019s exception to the omission. Defendant\u2019s assignment of error as to the jury charge omitting his requested instruction is, therefore, properly before us.\nCorroboration, the opposite of impeachment, is \u201cthe process of persuading the trier of the facts that a witness is credible.\u201d 1 Brandis on North Carolina Evidence \u00a7 49 (2d rev. ed. 1982). \u201cCorroborate\u201d means \u201cto strengthen; to add weight or credibility to a thing by additional conforming facts or evidence.\u201d State v. Higgenbottom, 312 N.C. 760, 769, 324 S.E. 2d 834, 840 (1985). Evidence may also be used for corroboration purposes when the corroborating evidence is not admitted solely for its bearing on credibility. \u201cIt is only when the evidence is inadmissible for substantive . . . purposes, and its sole claim to competence is to enhance credibility, that resort must be had to the special rules and policies\u201d relative to corroboration. 1 Brandis on North Carolina Evidence \u00a7 49 (2d rev. ed. 1982) (emphasis added). The corollary to this rule, then, is that if evidence is admissible for substantive purposes, none of the \u201ccorroboration\u201d limitations apply, and a party is not entitled to an instruction limiting its admissibility to that purpose, whether he requests one or not. In the instant case, therefore, a determination of defendant\u2019s second issue as to whether this testimony was admissible as substantive evidence is a prerequisite to a determination of the first.\nDefendant\u2019s second issue, in effect, requires us to decide whether the trial court erred in allowing, as substantive evidence, the testimony of Ms. Glidden, Ms. Peterson, and Mrs. Davis as to what Gloria and Janell related to them following the assaults. The defendant contends this evidence was inadmissible hearsay.\nThe North Carolina Evidence Code, Chapter 8C of the North Carolina General Statutes, became effective 1 July 1984. It therefore governed the admissibility of evidence at this trial which commenced 13 August 1984. N.C.G.S. \u00a7 8C-1, Rule 801(c) (Cum. Supp. 1983), defines \u201chearsay\u201d as \u201ca statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d A hearsay statement is \u201cnot admissible except as provided by statute or by these rules.\u201d N.C.G.S. \u00a7 8C-1, Rule 802. There is no question that the testimony in dispute here was \u201chearsay.\u201d However, statements which otherwise would be deemed hearsay are not excluded by the rule if they are found to fall within one of the exceptions provided in Rule 803 (Availability of declarant immaterial) or in Rule 804 (Declarant unavailable).\nI.\nThe disputed testimony of the two Rape Task Force volunteers, as well as that of Mrs. Davis, was assumed in the briefs of this case to have been admitted by the trial judge as substantive evidence pursuant to the hearsay exception set out in Rule 803(4) (statements made for purposes of medical diagnosis or treatment), which provides:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n(4) Statements for Purposes of Medical Diagnosis or Treatment. \u2014 Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.\nThe defendant contends that the disputed testimony does not fall within this hearsay exception and is therefore inadmissible because Gloria\u2019s and Janell\u2019s statements were not made for the purposes of medical diagnosis or treatment. Defendant bases his argument on the fact that none of these witnesses claimed to hold licenses to practice medicine or psychology and could not, therefore, provide medical diagnosis or treatment.\nThe testimony of Mrs. Davis, the girls\u2019 grandmother, to whom they first related the incident, clearly comes within the Rule 803(4) hearsay exception. In addition to telling her grandmother about the assault, Gloria described bleeding and pain. As a direct result of that conversation, Mrs. Davis advised Gloria\u2019s mother to take her to the hospital for diagnosis and treatment. Likewise, as a direct result of the conversation with Janell that afternoon, Janell was also taken to the hospital for diagnosis and treatment.\nThe commentary to N.C.G.S. \u00a7 8C-1, Rule 803(4), explains that \u201c[u]nder the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.\u201d (Emphasis added.) The basis for allowing such statements into evidence as exceptions to the hearsay rule is that they are inherently trustworthy and reliable for the reason that the patient has an interest in telling or relaying to medical personnel as accurately as possible the cause for the patient\u2019s condition. See 4 D. Louisell & C. Mueller, Federal Evidence \u00a7 444 (1980); 4 Weinstein\u2019s Evidence \u00a7 803(4)[01] (1985).\nWhile, here, Gloria and Janell did not specifically request medical attention, we recognize that young children cannot independently seek out medical attention, but must rely on their caretakers to do so. Their statements to Mrs. Davis immediately resulted in their receiving medical treatment and diagnosis. We hold, therefore, that Mrs. Davis\u2019 testimony regarding her conversations with Gloria and Janell resulting in their being examined, diagnosed, and treated at New Hanover Memorial Hospital on 5 March 1984 was properly admitted as substantive evidence pursuant to the Rule 803(4) hearsay exception.\nDefendant also contends that Mrs. Davis\u2019 testimony, to the effect that Gloria told her it was \u201cSylvester\u201d who had caused her injuries, was improperly admitted as irrelevant to Gloria\u2019s treatment or diagnosis. Some courts before which the point has been raised have found that the identity of the perpetrator is not relevant under the 803(4) (medical diagnosis or treatment) exception. If a declarant identifies the perpetrator while under the impression that he is being asked to indicate the responsible party, the identification may be accusatory in nature and thus would destroy any inherent reliability. United States v. Narcisco, 446 F. Supp. 252, 289 (E.D. Mich. 1977). If, however, the motivation for such statement was to disclose information to aid in medical diagnosis or treatment, the trustworthiness remains intact. Id. In Goldade v. Wyoming, 674 P. 2d 721 (Wyo. 1983), cert. denied, \u2014 U.S. \u2014, 82 L.Ed. 2d 844 (1984), a mother was convicted of physically abusing her daughter solely on the basis of statements made by the child to a doctor. The doctor was allowed to testify that the child identified the mother as the perpetrator.\nOne commentator has noted that \u201c[w]hile admissible evidence under traditional doctrine included only the fact that complaint was made, the trend is to allow the details of the offense and the identity of the offender, a result which appears wholly justifiable.\u201d McCormick on Evidence \u00a7 297 (3d ed. 1984). See also VI Wigmore, Evidence \u00a7 1761 n. 2 (Chadbourn rev. 1976) and cases cited therein.\nWe believe that, under these circumstances, the trial court did not err in allowing Mrs. Davis to testify that Gloria named Sylvester as her assailant. We note, also, that because Gloria had identified Sylvester from the witness stand, Mrs. Davis\u2019 testimony was corroborative of this fact.\nDefendant\u2019s contention that it was error to admit the testimony of Ms. Glidden and Ms. Peterson pursuant to Rule 803(4) (medical diagnosis or treatment) is more troubling. Defendant correctly points out that neither Ms. Glidden nor Ms. Peterson testified to being licensed as medical doctors or psychologists. Although Ms. Glidden had experience as a registered nurse in a psychiatric clinic, she was called to the hospital in her capacity as a Rape Task Force volunteer, not as a registered nurse. We also note that the girls\u2019 statements to these volunteers were made after they had been examined and treated by qualified medical personnel. The volunteers did not pretend to diagnose the girls\u2019 medical \u201ccondition\u201d as Rape Task Force volunteers, but worked with them in treating the emotional effects of the events described by the girls. Gloria first met Ms. Glidden in the emergency room of the hospital. Ms. Glidden testified that she entered the room as Dr. Woodworth was leaving. Although it is possible that Gloria may have associated Ms. Glidden with the hospital and may have considered her to be among the medical personnel who treated her in connection with her injuries, we are unwilling to hold that these witnesses\u2019 testimony as to the victims\u2019 statements were properly admitted under the Rule 803(4) hearsay exception. We do not believe that the exception was created to except from the operation of the hearsay rule statements made to persons acting in the capacity of these volunteers at a time after the victims had already reached the hospital and had received medical treatment and diagnosis.\nII.\nThe State contends that the grandmother\u2019s (Mrs. Davis\u2019) testimony was also admissible under the hearsay exception, N.C.G.S. \u00a7 8C-1, Rule 803(2). That rule provides:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n(2) Excited Utterance. \u2014 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.\nIn 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. These two requirements necessitate subjective standards. \u201c[T]he fact that another person in a similar situation might not have been excited does not suffice to bar resort to the exception.\u201d 4 D. Louisell & C. Mueller, Federal Evidence \u00a7 439. Although the \u201crequirement of spontaneity is often measured in terms of the time lapse between the startling event and the statement, . . . the modern trend is to consider whether the delay in making the statement provided an opportunity to manufacture or fabricate the statement.\u201d J. Bulkley, Evidentiary Theories for Admitting a Child\u2019s Out-of-Court Statement of Sexual Abuse at Trial, in Child Sexual Abuse and the Law 153, 155 (J. Bulkley ed., ABA-National Legal Resource Center for Child Advocacy and Protection 1983).\nMany courts have 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) \u201cexcited utterance\u201d exceptions to the hearsay rule. The Wisconsin appellate courts have developed \u201ca special species of the excited utterance exception to the hearsay rule\u201d for such statements. State v. Padilla, 110 Wis. 2d 414, 329 N.W. 2d 263 (Wis. Ct. App. 1982). In Padilla, the Wisconsin Court of Appeals allowed the testimony of the victim\u2019s mother and a social worker as to statements made to them by the victim three days after a sexual assault. The ten-year-old victim did not testify at the preliminary hearing, but did testify at trial. Recognizing that \u201c[a] broad and liberal interpretation is [to be] given to what constitutes an excited utterance when applied to young children,\u201d the court noted that the stress and spontaneity upon which the exception is based is often present for longer periods of time in young children than in adults. See Annot. \u201cTime Element as Affecting Admissibility of Statement or Complaint Made by Victim of Sex Crime as Res Gestae, Spontaneous Exclamation, or Excited Utterance,\u201d 89 A.L.R. 3d 102 (1979). \u201cThis 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 \u2018free of conscious fabrication\u2019 for a longer period after the incident than with adults.\u201d Padilla, 110 Wis. 2d at 419, 329 N.W. 2d at 266 (citations omitted).\nAlthough it noted that the three-day time period at issue was \u201cless contemporaneous\u201d with the assault than were the periods in previously decided cases, the court in Padilla stated that \u201ccontemporaneity is not a condition precedent to a finding of an excited utterance.\u201d Id. at 420, 329 N.W. 2d at 267. Spontaneity and stress are the crucial factors. In Padilla, as here, the victim was assaulted by her mother\u2019s boyfriend who told her that if she said anything to her mother, he would \u201chit her.\u201d Id. There, as here, the witness stated that the child was \u201cafraid, scared\u201d when she related the incident.\nWhere there was an overnight interval between a sexual assault and a four-year-old\u2019s statement to his mother, the Colorado Court of Appeals noted that in cases involving young children, the element of trustworthiness underscoring the excited utterance exception is primarily found in the \u201clack of capacity to fabricate rather than the lack of time to fabricate.\u201d People v. Ortega, 672 P. 2d 215, 218 (Colo. App. 1983) (emphasis added).\nThe Eighth Circuit Court of Appeals held in United States v. Iron Shell, 633 F. 2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001, 68 L.Ed. 2d 203 (1981), that the trial court did not abuse its discretion in stretching the excited utterance exception to let in a statement of a nine-year-old female victim of sexual assault to a police officer up to an hour and a half after the assault. The officer described the child as being \u201cnervous and scared\u201d and speaking in \u201cshort bursts.\u201d Id. at 86. \u201cConsidering the surprise of the assault, its shocking nature and the age of the declarant,\u201d it was not unreasonable to find that the victim was in a \u201cstate of continuous excitement from the time of the assault.\u201d Id. Accord Haggins v. Warden, Ft. Pillow State Farm, 715 F. 2d 1050 (6th Cir. 1983), cert. denied, 464 U.S. 1071, 79 L.Ed. 2d 217 (1984) (four-year-old\u2019s statement to nurses and police an hour and a half after sexual assault). See also People v. Stewart, 39 Colo. App. 142, 568 P. 2d 65 (1977) (six-year-old victim of sexual assault did not relate her story to her rescuers, but waited to tell the police (first authority figures) two hours later; court cites Federal Rule of Evidence 803(2) and upholds admissibility); United States v. Nick, 604 F. 2d 1199 (9th Cir. 1979) (three-year-old victim of babysitter\u2019s sexual assault described event to his mother when she picked him up from the babysitter\u2019s house after the assault; description properly admitted under Federal Rule 803(2)).\nOther factors may come into play in causing a delay between the assault and the child\u2019s statement. \u201cIn allowing a wider length of time, courts have indicated that a young child may not make immediate complaint because of threats, fear of reprisals, admonishments of secrecy, or other pressures not to disclose,\u201d particularly where, as here, the child had a close relationship with the offender. J. Bulkley, Evidentiary Theories for Admitting a Child\u2019s Out-of-Court Statement of Sexual Abuse at Trial, in Child Sexual Abuse and the Law 153, 156 (J. Bulkley ed., ABA-National Legal Resource Center for Child Advocacy and Protection 1983). See also People v. Edgar, 113 Mich. App. 528, 317 N.W. 2d 675 (1982); People v. Bonneau, 323 Mich. 237, 35 N.W. 2d 161 (1948); State v. Creighton, 462 A. 2d 980 (R.I. 1983).\nHowever, in State v. Hollywood, 67 Or. App. 546, 680 P. 2d 655 (1984), review denied, 298 Or. 553, 695 P. 2d 49 (1985), the court found the excited utterance exception inapplicable where there was a complete absence of evidence as to exactly when the attack took place and the victim had been in defendant\u2019s custody for nearly a month. There, a four-year-old female victim told her grandmother that her mother\u2019s boyfriend \u201chit me there\u201d with his \u201cthing down there\u201d (pointing to her vaginal area). The trial court admitted the grandmother\u2019s testimony under the excited utterance exception, but the appellate court found that the time factor precluded application of that exception. Instead, the appellate court found the testimony properly admitted under the Rule 803 (24) \u201ccatchall\u201d exception. We find Hollywood distinguishable. In Hollywood, the time of the assault was unable to be determined because the victim had been in the custody of the defendant for nearly a month prior to the victim\u2019s disclosure of the assault to her grandmother. In the instant case, the record reveals that the assaults took place on the weekend of 2 March 1984, with the victims reporting the assaults on Monday, 5 March 1984.\nWe believe that the girls\u2019 statements to Mrs. Davis on 5 March 1984 were of such a nature as to have been properly admitted under the Rule 803(2) excited utterance exception to the hearsay rule. In volunteering the information to her grandmother, Gloria said, \u201cI have something to tell you.... I want you to come in the room. I am scared. ... I want to tell you what Sylvester done [sic] to me.\u201d Although it is not entirely clear on exactly what night the event took place during that weekend, the trial court assumed it took place on the earliest night of the weekend, Friday night, 2 March 1984. The evidence tends to show that Gloria and Janell talked to Mrs. Davis on the morning and the afternoon of Monday, 5 March 1984, between two and three days of the event. Under these circumstances, then, we hold that Mrs. Davis\u2019 testimony was also admissible under the excited utterance exception of Rule 803(2). Neither party addressed the admissibility of the Rape Task Force volunteers\u2019 testimony under Rule 803(2). Therefore, we shall not do so here.\nIII.\nHaving found the testimony of Ms. Glidden and Ms. Peterson not admissible under the Rule 803(4) exception (medical diagnosis or treatment) and noting that the State does not argue for its admissibility under Rule 803(2) (excited utterances), we turn now to the State\u2019s contention that this testimony was admissible as substantive evidence pursuant to Rule 803(24) (other exceptions). Often termed the \u201ccatchall\u201d or \u201cresidual\u201d hearsay exception, Rule 803(24) provides that:\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n(24) Other Exceptions. \u2014 A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it gives written notice stating his intention to offer the statement and the particulars of it, including the name and address of the declarant, to the adverse party sufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.\nThe record indicates that the State provided notice to the defendant of its intention to introduce the statements of Ms. Glidden and Ms. Peterson. The written and oral notice included the names and addresses of these witnesses, as well as the \u201cparticulars\u201d of the hearsay statements this testimony would contain. In a conversation among the district attorney, defense counsel, and the trial judge which took place between the jury charge and the announcement of the verdict, the district attorney again advised the trial court that this notice had been given. The judge asked defense counsel if this was correct, and counsel responded, \u201cJudge, I was not contesting [the statements] on that basis, and what Mr. Easley says is correct.\u201d\nThe trial judge here did not specify on what basis he refused to limit the disputed testimony to corroboration. If he allowed the testimony into evidence pursuant to the Rule 803(24) exception, he did not say so on record. Consequently, there appear in the record no findings by the trial judge or any other indication that he analyzed the appropriateness of admitting this testimony in light of the specific requirements set out in Rule 803(24).\nBecause of the residual nature of the Rule 803(24) hearsay exception and the Commentary\u2019s warning that \u201c[t]his exception does not contemplate an unfettered exercise of judicial discretion,\u201d evidence proffered for admission pursuant to N.C.G.S. \u00a7 8C-1, Rule 803(24) (\u201cother exceptions\u201d), must be carefully scrutinized by the trial judge within the framework of the rule\u2019s requirements. It is the duty of the proponent of the proffered hearsay statement to alert the trial judge that the statement is being offered as a hearsay exception under Rule 803(24). Upon being notified that the proponent is seeking to admit the statement pursuant to that exception, the trial judge must have the record reflect that he is considering the admissibility of the statement pursuant to Rule 803(24). Only then should the trial judge proceed to analyze the admissibility by undertaking the six-part inquiry required of him by the rule. The trial judge must engage in this inquiry prior to admitting or denying proffered hearsay evidence pursuant to Rule 803(24).\nA. Has proper notice been given?\nWhen hearsay testimony is sought to be admitted as substantive evidence under Rule 803(24), the proponent must first provide written notice to the adverse party \u201csufficiently in advance of offering the statement to provide the adverse party with a fair opportunity to prepare to meet the statement.\u201d The hearsay statement may not be admitted unless this notice (a) is in writing; and (b) is provided to the adverse party sufficiently in advance of offering it to allow him to prepare to meet it; and (c) contains (1) a statement of the proponent\u2019s intention to offer the hearsay testimony, (2) the \u201cparticulars\u201d of the hearsay testimony, and (3) the name and address of the declarant.\nThus, a trial judge must make the initial determination that proper notice was duly given and must include that determination in the record; detailed findings of fact are not required. Should the trial judge determine that notice was not given, was inadequate, or was untimely provided, his inquiry must cease and the proffered hearsay statement must be denied admission under Rule 803(24).\nB. Is the hearsay not specifically covered elsewhere?\nIf the trial judge determines that the statutory notice requirements have been met, he must next determine whether the \u201cstatement [is] not specifically covered by any of the foregoing exceptions . . . [Rule 803(l)-(23)].\u201d Again, detailed findings of fact are not required, but the trial judge must enter his conclusion in the record. If the trial judge determines that the statement is covered by one of the other specific exceptions, that exception, not the catchall Rule 803(24), governs; admission pursuant to Rule 803(24) is not necessary, and the inquiry must end. If, however, the trial judge concludes that the hearsay statement is not specifically covered by any of the other 23 exceptions, he must so determine and proceed to the next inquiry.\nC. Is the statement trustworthy?\nAlthough a hearsay statement is not specifically covered by any of the 23 \u201cpigeonhole\u201d exceptions, it may be admissible under the residual exception if it possesses \u201ccircumstantial guarantees of trustworthiness\u201d equivalent to those required for admission under the enumerated exceptions. This threshold determination has been called \u201cthe most significant requirement\u201d of admissibility under Rule 803(24). Courts and commentators have struggled with the meaning of this requirement, and certain factors are acquiring recognition as significant in guiding the trial judge\u2019s determination of the proffered statement\u2019s trustworthiness. Among these factors are (1) assurance of personal knowledge of the declarant of the underlying event, United States v. Barlow, 693 F. 2d 954, 962 (6th Cir. 1982), cert. denied, 461 U.S. 945, 77 L.Ed. 2d 1304 (1983); United States v. Carlson, 547 F. 2d 1346, 1354 (8th Cir.) (applying Federal Rule 804(b)(5)), cert. denied, 431 U.S. 914, 53 L.Ed. 2d 224 (1976); (2) the declarant\u2019s motivation to speak the truth or otherwise, Huff v. White Motor Corp., 609 F. 2d 286, 292 (7th Cir. 1979); (3) whether the declarant ever recanted the testimony, United States v. Barlow, 693 F. 2d 954, 962 (6th Cir. 1982), cert. denied, 461 U.S. 945, 77 L.Ed. 2d 1304 (1983); and (4) the practical availability of the declarant at trial for meaningful cross-examination, M. Graham, Handbook of Federal Evidence \u00a7 803.24 (1981). See also United States v. McPartlin, 595 F. 2d 1321, 1350 (7th Cir.) (dictum), cert. denied, 444 U.S. 833, 62 L.Ed. 2d 43 (1979); 4 D. Louisell & C. Mueller, Federal Evidence \u00a7 472 (1980) (\u201cthe \u2018trustworthiness\u2019 of statements offered under Rule 803(24) is slightly less a matter of concern where the declarant in fact testifies and is subject to cross-examination\u201d).\nNone of these factors, alone or in combination, may conclusively establish or discount the statement\u2019s \u201ccircumstantial guarantees of trustworthiness.\u201d The trial judge should focus upon the factors that bear on the declarant at the time of making the out-of-court statement and should keep in mind that the peculiar factual context within which the statement was made will determine its trustworthiness.\nIn making his determination of whether the proffered statement possesses \u201cequivalent circumstantial guarantees of trustworthiness,\u201d the trial judge must include in the record not only his conclusion but also his reasoning in reaching it. Findings of fact and conclusions of law as to the trustworthiness requirement must appear in the record. Again, if the trial judge examines the circumstances and determines that the proffered testimony does not meet the trustworthiness requirement, his inquiry must cease upon his entry into the record of his findings and conclusions, and the testimony may not be admitted pursuant to Rule 803(24). If the trial judge\u2019s analysis leads him to the conclusion that the trustworthiness element is satisfied, he must proceed to the next inquiry.\nD. Is the statement material?\nIf the proffered statement is not specifically covered by any of the enumerated exceptions and has equivalent circumstantial guarantees of trustworthiness, it is still inadmissible unless the trial judge determines that it \u201cis offered as evidence of a material fact.\u201d This requirement has been construed as a mere restatement of the requirement of relevancy set out in Rules 401 and 402. See Huff v. White Motor Corp., 609 F. 2d 286, 294 (7th Cir. 1979); M. Graham, Handbook of Federal Evidence \u00a7 803.24 (1981). Although findings of fact need not be made, the trial judge must include in the record a statement that the proffered evidence is offered as evidence of a material fact if he so finds. If not, the record should so reflect, and the inquiry should end.\nE. Is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts?\nThe fifth inquiry is reached only if each of the preceding four have been answered in the affirmative. A hearsay statement is admissible under Rule 803(24) only if it \u201cis more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.\u201d This requirement of \u201cnecessity\u201d has been inherent in the analysis of hearsay exceptions long before even the Federal Rules of Evidence were codified. See V Wigmore on Evidence \u00a7 1421 (Chadbourn Rev. 1974). The requirement imposes the obligation of a dual inquiry: were the proponent\u2019s efforts to procure more probative evidence diligent, and is the statement more probative on the point than other evidence that the proponent could reasonably procure? 4 D. Louisell & C. Mueller, Federal Evidence \u00a7 472 (1980).\nWhere a declarant is available at trial, the degree of necessity to admit his or her hearsay statement through the testimony of another is greatly diminished. Usually, but not always, the live testimony of the declarant will be the more (if not the most) probative evidence on the point for which it is offered. Because Rule 803(24) allows hearsay evidence to be admitted \u201ceven though the declarant is available as a witness,\u201d the trial judge must, in this event, take care in documenting for the record his basis for finding that this \u201cnecessity\u201d requirement is met. The record must reflect findings of fact and conclusions of law supporting the trial judge\u2019s determination as to this fifth inquiry. Should the trial court determine that the proffered evidence is not \u201cmore probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts,\u201d his inquiry must end, and the evidence may not be admitted under Rule 803(24). If, however, the trial judge determines that the \u201cnecessity\u201d test is satisfied, he must move to the sixth inquiry.\nF. Will the interests of justice be best served by admission?\nThe sixth and final inquiry under Rule 803(24) is whether \u201cthe general purposes of [the] rules [of evidence] and the interests of justice will best be served by admission of the statement into evidence.\u201d The general purposes of the North Carolina Evidence Code are set out in N.C.G.S. \u00a7 8C-1, Rule 102, as follows: \u201cThese rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.\u201d\nAfter considering whether admission of the proffered evidence would best serve these purposes and the interests of justice, the trial judge must state his conclusion. Detailed findings of fact regarding this determination are not required so long as the trial judge includes in the record his analysis.\nBy setting out in the record his analysis of the admissibility of hearsay testimony pursuant to the requirements of Rule 803(24) as set forth above, the trial judge will necessarily undertake the serious consideration and careful determination contemplated by the drafters of the Evidence Code. This thoughtful analysis will greatly aid in assuring that only necessary, probative, material, and trustworthy hearsay evidence will be admitted under this residual exception and will provide a sound framework for meaningful appellate review.\nOur research has revealed that, in applying Federal Rule 803(24), the federal courts encourage if not demand that the trial courts make findings. Because admissibility of hearsay statements pursuant to the 803(24) residual exception is within the sound discretion of the trial court, appellate review of an assignment of error to that exercise of discretion is rendered virtually impossible absent the inclusion in the record of the statements, rationale, or findings and conclusions as set forth herein. We hold that, before allowing the admission of hearsay evidence to be presented under Rule 803(24) (other exceptions), the trial judge must enter appropriate statements, rationale, or findings of fact and conclusions of law, as set forth herein, in the record to support his discretionary decision that such evidence is admissible under that rule. If the record does not comply with these requirements and it is clear that the evidence was admitted pursuant to Rule 803(24), its admission must be held to be error.\nBecause the language of Rule 803(24) does not itself specify how and in what detail the trial judge must \u201cdetermine\u201d its requirements, we have established the requirements set forth herein pursuant to this Court\u2019s residual supervisory power as partially expressed in Rule 2 of the North Carolina Rules of Appellate Procedure. We now consider the application of the rule announced herein to cases involving the admission or exclusion of evidence where the record reflects that the trial judge made his ruling on the basis of Rule 803(24). Because the effective date of the rules is recent (1 July 1984), there are probably few cases in the process of appellate review at this time. Our holding in this case will apply only to cases the trial of which begins after the certification date of this opinion. It may not be used as the basis for collaterally attacking any case which was tried prior to the certification date of this opinion or in any case in which no appeal was taken from the trial judgment. In those cases to which the rule established herein does not apply, the appellate courts will examine each appeal on a case-by-case basis to determine whether the ruling by the trial judge admitting or excluding evidence pursuant to Rule 803(24) may be sustained on the contents of the record on appeal. If the record will not support the ruling of the trial judge, his ruling will be determined to be error and the appellate court will then proceed to determine whether the error was reversible pursuant to the provisions of N.C.G.S. \u00a7 15A-1443.\nWe now proceed to determine the question in the case at bar. As previously indicated herein, the trial judge denied defendant\u2019s motion to limit the Rape Task Force volunteers\u2019 hearsay testimony to corroboration and refused to give limiting instructions in his charge as tendered by defendant. We have previously noted that the testimony of these witnesses could not properly have been admitted as substantive evidence under either Rule 803(4) (medical diagnosis or treatment) or Rule 803(2) (excited utterances), the only other exceptions contended. The trial judge did not state, and the record does not reflect, that the evidence was admitted pursuant to Rule 803(24). The record reflects no statements, rationale, or findings and conclusions whatsoever concerning any requirement of the rule and thus does not support the trial judge\u2019s ruling which in effect allowed this testimony to be considered as substantive evidence. Because we are unable to find in the record on appeal any support for the admission of the testimony under Rule 803(24), we find that so much of this testimony as did not corroborate the victims\u2019 testimony at trial was inadmissible and thus its admission was error.\nWe now consider whether the error was reversible error. Our review of the transcript indicates that the portion of the volunteers\u2019 testimony relating to statements made by the children which was non-corroborative was Ms. Glidden\u2019s testimony that Gloria told her that Sylvester \u201cput his finger in her \u2018butt.\u2019 \u201d The only evidence of first-degree sexual offense against Gloria was Gloria\u2019s statements to others to the effect that Sylvester touched her in the area of her rectum. At trial, Gloria repeatedly denied that Sylvester had touched her anywhere except her vagina. Thus, Ms. Glidden\u2019s testimony, proffered pursuant to Rule 803(24), was in direct conflict with the testimony of the victim. Although the properly admitted subsequent testimony of the grandmother, Mrs. Davis (whom the jury probably viewed as an interested witness), was to the effect that Gloria had told her Sylvester had put his hand in her \u201cbutt,\u201d we find that the admission of Ms. Glidden\u2019s testimony to the same effect was highly prejudicial to the defendant. The testimony of this \u201cdisinterested\u201d Rape Task Force volunteer obviously had great impact upon the jury, especially in the face of Gloria\u2019s denial at trial that the defendant had touched her anywhere except in her vagina. The prejudicial effect of this testimony requires us to arrest judgment on defendant\u2019s conviction for the first-degree sexual offense as to Gloria, 84CRS1377, and to grant a new trial on that charge.\nIV.\nDefendant has made several additional assignments of error, none of which we find to have merit, but which we shall address briefly here. First, defendant contends that it was error to allow Dr. Woodworth, the examining physician, to give his opinion as to the cause of the trauma he observed during his examination of Gloria on 5 March 1984. The record reveals that, in response to questioning as to the cause of the injuries, Dr. Woodworth stated, \u201cIn my opinion it was a male penis.\u201d Defendant contends first that this statement was improperly admitted because it was unqualified by the words \u201ccould\u201d or \u201cmight.\u201d Second, defendant contends that the statement was improper as an invasion of the province of the jury.\nIn State v. Brown, 300 N.C. 731, 268 S.E. 2d 201 (1980), this Court set out a three-part test for determining the admissibility of expert opinion testimony as to the cause of injuries. The second prong of that test allows the witness to testify only that an event could or might have caused the injury unless his expertise leads him to an unmistakable conclusion. Id. at 733, 268 S.E. 2d at 203. Since Brown was decided, the North Carolina Evidence Code, Chapter 8C of the North Carolina General Statutes, has come into effect. As we stated earlier, the trial of the instant case was governed by the \u201cnew\u201d Evidence Code. N.C.G.S. \u00a7 8C-1, Rule 705, eliminates the requirement that experts\u2019 opinion testimony be in response to a hypothetical question. Rule 704 provides that \u201c[testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.\u201d In this case, an \u201cultimate issue\u201d was whether the victims\u2019 injuries were caused by a male sex organ. As to Gloria, Dr. Wood-worth testified that, in his opinion, the injuries were caused by \u201ca male penis.\u201d\nWe hold that Dr. Woodworth\u2019s failure to qualify his opinion by the words \u201ccould\u201d or \u201cmight\u201d did not render this testimony as to an ultimate issue improper. We note parenthetically that, on cross-examination, Dr. Woodworth agreed that the injuries he observed during his examination of Gloria could have been caused by some other object the same size and shape as a penis. We also note that Dr. Woodworth did not testify that Gloria had been raped, nor that the defendant raped her. The rule that an expert may not testify that such a particular legal conclusion or standard has or has not been met remains unchanged by the new Evidence Code, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness. 3 D. Louisell & C. Mueller, Federal Evidence \u00a7 395 (1979). See also State v. Robinson, 310 N.C. 530, 538, 313 S.E. 2d 571, 577 (1984).\nDefendant next contends it was reversible error to admit the testimony of Dr. James Robert Forstner in which he stated that, in his opinion, it was \u201chighly likely\u201d that Gloria and Janell had had sexual intercourse. Defendant argues that Dr. Forstner\u2019s opinion was not based on any personal examination of the victims but was based solely on his review of Dr. Woodworth\u2019s medical reports. In addition, defendant contends that it was error to allow Dr. Forstner to testify as to his conversations with Drs. Frank Loder and Suzanne White regarding the implications of the presence of protozoa trichomonas in very young females.\nFirst, defendant erroneously concludes that a medical expert\u2019s testimony is limited to conditions he has personally observed. The correct limitation, that facts must be \u201cwithin his knowledge,\u201d State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980), is quite different. Dr. Forstner gave an expert medical opinion based upon the contents of Dr. Woodworth\u2019s medical reports and information supplied to him by his colleagues, Drs. Loder and White. Based upon that information, Dr. Forstner relied on his personal knowledge and expertise as Child Medical Examiner of Brunswick County to form an opinion as to the likelihood that Gloria and Janell had had sexual intercourse. His opinion was based in part on the statements of Drs. Loder and White that they were unaware of a case of trichomonas in a prepubertal female who had not engaged in sexual intercourse.\nWe find that these bases upon which Dr. Forstner relied in forming his opinion were of the type reasonably relied upon by experts in the field in forming opinions upon the subject. N.C.G.S. \u00a7 8C-1, Rule 703. Therefore, we hold that the trial court did not err in allowing Dr. Forstner to testify to his opinion as to the likelihood that the victims had engaged in sexual intercourse.\nDefendant\u2019s next contention is that there was insufficient evidence upon which to submit all the indictments to the jury and to sustain the jury\u2019s verdicts. We have held that \u201c[b]efore the issue of a defendant\u2019s guilt may be submitted to the jury, the trial court must be satisfied that substantial evidence has been introduced tending to prove each essential element of the offense charged and that the defendant was the perpetrator.\u201d State v. Hamlet, 312 N.C. 162, 166, 321 S.E. 2d 837, 842 (1984); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). \u201cSubstantial evidence must be existing and real but need not exclude every reasonable hypothesis of innocence.\u201d Hamlet, 312 N.C. at 166, 321 S.E. 2d at 837; State v. Williams, 308 N.C. 47, 64, 301 S.E. 2d 335, 346, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177 (1983). Our review of the evidence properly admitted at trial leads us to the conclusion that there is no merit in this assignment of error.\nFinally, defendant contends that the trial court erred in failing to instruct the jury as requested on the lesser-included offenses of attempted first-degree rape and attempted first-degree sexual offense as to both children. The general rule is that the trial court must only so instruct when there is evidence from which the jury could find that the defendant committed the lesser offense. State v. Redfern, 291 N.C. 319, 230 S.E. 2d 152 (1976). Where there is evidence of some penetration sufficient to support a conviction of rape and the defendant denies having any sexual relations with the victim, the defendant is not entitled to a charge of attempted rape. State v. Wood, 311 N.C. 739, 319 S.E. 2d 247 (1984); State v. Horner, 310 N.C. 274, 311 S.E. 2d 281 (1984). We find that Gloria\u2019s testimony, coupled with the medical evidence presented by Dr. Woodworth, constituted sufficient evidence of a penetration to support a first-degree rape conviction. Likewise, Janell\u2019s testimony was sufficient to support a conviction for first-degree sexual offense; no medical evidence of penetration, such as bruising or tearing, is required to support such a conviction. Cf. State v. Ashley, 54 N.C. App. 386, 283 S.E. 2d 805 (1981), cert. denied, 305 N.C. 153, 289 S.E. 2d 381 (1982). Therefore, we hold that, there being insufficient evidence to support a finding that the defendant committed any lesser offenses, the trial court did not err in failing to instruct the jury on the lesser offenses of attempted rape and attempted first-degree sexual offense.\nV.\nIn summary, we hold that there was no error in defendant\u2019s convictions for the first-degree rape of Gloria Ogundeji and the first-degree sexual offense of Janell Smith. Defendant is entitled to a new trial on the charge of first-degree sexual offense as to Gloria Ogundeji.\nNo. 84CRS1376 \u2014First-Degree Rape \u2014no error.\nNo. 84CRS1377 \u2014First-Degree Sexual Offense \u2014new trial.\nNo. 84CRS1611 \u2014 First-Degree Sexual Offense \u2014 no error.\nJustice BILLINGS did not participate in the consideration and decision of this case.\n. All other evidence indicates that Mrs. Davis\u2019 visit referred to here was on 5 March 1984, a Monday.\n. Dr. Woodworth stated on cross-examination that the disease could also be caused by improper hygiene. Dr. James Robert Forstner, Brunswick County Child Medical Examiner and family practice physician, was allowed to testify that two of his colleagues told him that they did not know of a case of trichomonas in a prepubertal female that had shown up without sexual contact.\n. See, e.g., State v. Gollon, 115 Wis. 2d 592, 340 N.W. 2d 912 (1983) (mother and neighbor allowed to testify to statements of six-year-old victim made one and two days after assault when victim too afraid to testify at trial); State ex rel. Harris v. Schmidt, 69 Wis. 2d 668, 230 N.W. 2d 890 (1975) (five-year-old stepson of defendant told his mother the next day; told defendant\u2019s probation officer 15 days later); Love v. State, 64 Wis. 2d 432, 219 N.W. 2d 294 (1974) (three-and-a-half-year-old told her mother the next morning after mother noticed blood); Bertrang v. State, 50 Wis. 2d 702, 184 N.W. 2d 867 (1971) (nine-year-old daughter of defendant told her mother the next day); Bridges v. State, 247 Wis. 350, 19 N.W. 2d 529, reh\u2019g denied, 247 Wis. 350, 19 N.W. 2d 862 (1945) (seven-year-old told her mother one hour after assault). In all of these cases, the Wisconsin Supreme Court allowed the adults\u2019 hearsay testimony to be received as substantive evidence.\n. The legislative history of Federal Rule of Evidence 803(24) reveals that the Senate Judiciary Committee cautioned that the exception should be invoked \u201cvery rarely, and only in exceptional circumstances.\" S. Rep. No. 1277, 93d Cong., 2d Sess. 20, reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7066. See also Lewis, The Residual Exceptions to the Federal Hearsay Rule: Shuffling the Wild Cards, 15 Rutgers L.J. 101 (1983); Sonenshein, The Residual Exceptions to the Federal Hearsay Rule: Two Exceptions in Search of a Rule, 57 N.Y.U.L. Rev. 867 (1982). But see Imwinkelried, The Scope of the Residual Hearsay Exceptions in the Federal Rules of Evidence, 15 San Diego L. Rev. 239 (1978) (urging a more liberal construction).\n. Federal Rule of Evidence 803(24) requires that the notice be given sufficiently \u201cin advance of the trial or hearing.\" (Emphasis added.) In all other respects, N.C.G.S. \u00a7 8C-1, Rule 803(24), is identically worded.\n. The Commentary to Rule 803(24) explains that the statement\u2019s trustworthiness must be \u201cwithin the spirit of the specifically stated exceptions.\u201d\n. M. Graham, Handbook of Federal Evidence \u00a7 803.24 (1981); McCormick on Evidence \u00a7 324.1 (3d ed. 1984) (central focus of the residual exception).\n. See, e.g., United States v. Mathis, 559 F. 2d 294 (5th Cir. 1977) (court faced with defendant\u2019s recalcitrant wife who, after making sworn statements and testifying before a grand jury as to defendant\u2019s involvement in the crime, refused to testify against him at trial. The court in that situation reasoned:\n\u201cThe live testimony of the available witness, whose demeanor the jury would have been able to observe and whose testimony would have been subject to cross-examination, would have been of more probative value in establishing the truth than the bare statements transcribed by the ATF agents. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed. 2d 489 (1970); United States v. Williams, 447 F. 2d 1285 (5th Cir. 1971); United States v. Lynch, 163 U.S. App. D.C. 6, 499 F. 2d 1011 (1974). Unlike the case in which the witness takes the stand, the use of the statements foreclosed any exploration of weaknesses in the witness\u2019 perception, memory, and narration of the matters asserted within the statements. While it has been contended that availability is an immaterial factor in the application of Rule 803(24), this argument is wide of the mark. Although the introductory clause of Rule 803 appears to dispense with availability, this condition re-enters the analysis of whether or not to admit statements into evidence under the last subsection of Rule 803 because of the requirement that the proponent use reasonable efforts to procure the most probative evidence on the points sought to be proved. Rule 803(24), thus, has a built-in requirement of necessity. Here there was no necessity to use the statements when the witness was within the courthouse. The trial court erred in overlooking this condition of admissibility under Rule 803(24).\u201d).\nId. at 298-99.\nWe note that the presence of the declarant in the courthouse does not necessarily preclude a finding of necessity.\n. United States v. Hinkson, 632 F. 2d 382, 385 (4th Cir. 1980); Huff v. White Motor Corp., 609 F. 2d 286, 291 (7th Cir. 1979); United States v. Palacios, 556 F. 2d 1359, 1363, n. 7 (5th Cir. 1977). See also S. Rep. No. 1277, 93d Cong., 2d Sess. 20, reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7066.\n. United States v. Guevara, 598 F. 2d 1094, 1100 (7th Cir. 1979); United States v. King, 16 M.J. 990, 992, n. 3 (A.C.M.R. 1983).\n. United States v. Guevara, 598 F. 2d 1094 (7th Cir. 1979). One treatise has stated that \u201cresort to [803(24)] for the first time on appeal as the basis for challenging or supporting rulings below is inappropriate.\u201d 4 D. Louisell & C. Mueller, Federal Evidence \u00a7 472 (1980). But see Huff v. White Motor Corp., 609 F. 2d 286, 291-92 (7th Cir. 1979) (Seventh Circuit Court of Appeals, after noting that findings by the district court would have \u201cgreatly aided\u201d in reviewing a ruling of this nature under 803(24), stated that \u201cwe have little choice except to attempt to replicate the exercise of discretion that would be made by a trial judge in making the ruling.\u201d The circuit court went on to analyze the proffered testimony under Federal Rule 803(24)).", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Jane Rankin Thompson, Assistant Attorney General, for the State.", "William F. Fairley for the defendant-appellant.", "Northern Little and Thibaut, by J. Anderson Little, for Orange County Social Services; Corinne G. Russell for Wake County Social Services; Russell Odom for Durham County Social Services; G. Keith Whited for Alamance County Social Services; David Kennedy for Cumberland County Social Services, amici curiae.", "Adam Stein, Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, amicus curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SYLVESTER SMITH\nNo. 713A84\n(Filed 10 December 1985)\n1. Criminal Law \u00a7 89.2\u2014 instruction on corroborating evidence \u2014 necessity for request\nAn instruction limiting admissibility of testimony to corroboration is not required unless counsel specifically requests such an instruction, and a general objection will not suffice.\n2. Criminal Law \u00a7 89.2\u2014 evidence admissible for substantive purposes \u2014corroboration limitations inapplicable\nIf evidence is admissible for substantive purposes, none of the \u201ccorroboration\u201d limitations apply, and a party is not entitled to an instruction limiting its admissibility to that purpose, whether he requests one or not.\n3. Criminal Law \u00a7 73.5\u2014 medical diagnosis or treatment exception to hearsay rule \u2014 statements made by sexual assault victims to grandmother\nStatements made by four-year-old and five-year-old girls to their grandmother concerning sexual assaults which immediately resulted in their receiving medical treatment and diagnosis were admissible as substantive evidence under the medical diagnosis or treatment exception to the hearsay rule set forth in N.C.G.S. 8C-1, Rule 803(4) even though the grandmother did not have a license to practice medicine or psychology.\n4. Criminal Law \u00a7 73.5\u2014 medical diagnosis or treatment exception to hearsay rule \u2014 identity of perpetrator\nA statement by a child to her grandmother that it was defendant who had caused her injuries was admissible under the medical diagnosis or treatment exception to the hearsay rule.\n5. Criminal Law 8 73.5\u2014 medical diagnosis or treatment exception to hearsay rule \u2014 statements to Rape Task Force volunteers inadmissible\nStatements made by rape and sexual assault victims to Rape Task Force volunteers after they had already reached the hospital and had received medical treatment and diagnosis were not admissible as substantive evidence under the medical diagnosis or treatment exception to the hearsay rule.\n6. Criminal Law 8 73.4\u2014 excited utterance exception to hearsay rule \u2014 children\u2019s statements three days after assaults\nStatements made by four-year-old and five-year-old girls to their grandmother about sexual assaults between two and three days after the assaults occurred were admissible under the N.C.G.S. 8C-X, Rule 803(2) excited utterance exception to the hearsay rule.\n7. Criminal Law 8 73.2\u2014 catchall exception to hearsay rule \u2014 notice\u2014inquiry by court\nIt is the duty of the proponent of a hearsay statement proffered under the N.C.G.S. 8C-1, Rule 803(24) catchall exception to the hearsay rule to alert the trial judge that the statement is being offered as a hearsay exception under Rule 803(24). Upon being notified that the proponent is seeking to admit the statement pursuant to that exception, the trial judge must have the record reflect that he is considering the admissibility of the statement pursuant to Rule 803(24), and only then should the trial judge proceed to analyze the admissibility by undertaking the six-part inquiry required of him by the rule.\n8. Criminal Law 8 73.2\u2014 catchall exception to hearsay rule \u2014 analysis required of trial court\nIn order to admit hearsay testimony under the \u201ccatchall\u201d or \u201cresidual\u201d exception of N.C.G.S. 8C-1, Rule 803(24), the trial court must: (1) make the initial determination that proper written notice was given to the adverse party and must include that determination in the record, although detailed findings of fact in making this determination are not required; (2) determine that the hearsay statement is not specifically covered by any of the other 23 exceptions and enter this conclusion on the record; (3) make findings of fact and conclusions of law supporting a determination that the proffered statement possesses circumstantial guarantees of trustworthiness equivalent to those required for admission under the enumerated exceptions; \u00cd4) include in the record a statement that the proffered evidence is offered as evidence of a material fact; (5) make findings of fact and conclusions of law supporting a determination that the proffered evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (6) enter a conclusion on the record that admission of the proffered evidence will best serve the general purposes of the Rules of Evidence and the interests of justice.\n9.Criminal Law 8 73.2\u2014 admission of testimony under Rule 803(24) \u2014 absence of findings \u2014 reversible error\nTestimony by two Rape Task Force volunteers as to statements made by two child rape and sexual offense victims which did not corroborate the victims\u2019 testimony at trial was not admissible under the N.C.G.S. 8C-1, Rule 803(24) residual exception to the hearsay rule where the record reflects no statements, rationale or findings and conclusions whatsoever concerning the requirements of Rule 803(24) and thus does not support the trial court\u2019s ruling in effect allowing this testimony to be considered as substantive evidence. Furthermore, the admission of such testimony by one volunteer was reversible error in defendant\u2019s trial for first degree sexual offense against one of the children where the testimony was in direct conflict with the testimony of the child victim.\n10. Criminal Law 8 53; Rape and Allied Offenses \u00a7 4.2\u2014 expert medical testimony \u2014opinion that injuries caused by male sex organ\nA physician was properly allowed to state his opinion that injuries he observed during his examination of a child were caused by \u201ca male penis\u201d even though the opinion was not qualified by the words \u201ccould\u201d or \u201cmight\u201d since N.C.G.S. 8C-1, Rule 705 has eliminated the requirement that expert opinion testimony be in response to a hypothetical question. Furthermore, under N.C.G.S. 8C-1, Rule 704, the testimony was not objectionable because it embraced the ultimate issue to be decided by the jury.\n11. Criminal Law 8 53; Rape and Allied Offenses \u00a7 4.2\u2014 expert medical testimony \u2014 likelihood that victims engaged in sexual intercourse\nThe Child Medical Examiner of Brunswick County was properly permitted to state his expert medical opinion that it was \u201chighly likely\u201d that two female children had had sexual intercourse based upon the contents of another doctor\u2019s medical report and information supplied to the witness by two colleagues that they were unaware of a case of trichomonas in a prepubertal female who had not engaged in sexual intercourse. N.C.G.S. 8C-1, Rule 703.\n12. Rape and Allied Offenses 8 5\u2014 first degree rape \u2014 first degree sexual offense\u2014 sufficiency of evidence\nThe evidence was sufficient to support submission to the jury of issues as to defendant\u2019s guilt of first degree rape and first degree sexual offense against a four-year-old child and a five-year-old child.\n13. Rape and Allied Offenses 8 6.1\u2014 first degree rape \u2014 first degree sexual offenses \u2014 instructions on attempts not required\nThe evidence in a prosecution for first degree rape and first degree sexual offense against a four-year-old child and a five-year-old child did not require the trial court to instruct on the lesser included offenses of attempted first degree rape and attempted first degree sexual offense where there was sufficient evidence of penetration to support first degree rape convictions, there was sufficient evidence to support convictions of first degree sexual offenses, and defendant denied any knowledge of the alleged incidents.\nJustice Billings did not participate in the consideration and decision of this case.\nDefendant was tried before Clark, J., at the 13 August 1984 Criminal Session of Superior Court, BRUNSWICK County, on charges of two counts each of first-degree rape, first-degree sexual offense, and indecent liberties with a minor against Gloria Ogundeji and Janell Smith. The jury returned verdicts of guilty on all charges except the first-degree rape of Janell, for which defendant was acquitted. Judgment was arrested on both indecent liberties convictions; defendant was sentenced to three life sentences, two of which were to run concurrently and the third consecutively. Defendant appeals as a matter of right.\nLacy H. Thornburg, Attorney General, by Jane Rankin Thompson, Assistant Attorney General, for the State.\nWilliam F. Fairley for the defendant-appellant.\nNorthern Little and Thibaut, by J. Anderson Little, for Orange County Social Services; Corinne G. Russell for Wake County Social Services; Russell Odom for Durham County Social Services; G. Keith Whited for Alamance County Social Services; David Kennedy for Cumberland County Social Services, amici curiae.\nAdam Stein, Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, amicus curiae." }, "file_name": "0076-01", "first_page_order": 104, "last_page_order": 130 }