{ "id": 1155865, "name": "STATE OF NORTH CAROLINA v. FLOYD CURTIS WADDELL", "name_abbreviation": "State v. Waddell", "decision_date": "2000-04-07", "docket_number": "No. 418A98", "first_page": "413", "last_page": "424", "citations": [ { "type": "official", "cite": "351 N.C. 413" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "504 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": -1 }, { "cite": "130 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468692 ], "year": 1998, "opinion_index": -1, "case_paths": [ "/nc-app/130/0488-01" ] }, { "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": "325 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "187" }, { "page": "187" } ], "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "678" }, { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "128 L. Ed. 2d 54", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "511 U.S. 1008", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147072, 1146881, 1146437, 1147653, 1147495, 1147336, 1146376, 1147352, 1147035, 1146968, 1146939, 1147452, 1147579, 1147614 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/1008-12", "/us/511/1008-07", "/us/511/1008-09", "/us/511/1008-06", "/us/511/1008-05", "/us/511/1008-04", "/us/511/1008-11", "/us/511/1008-13", "/us/511/1008-08", "/us/511/1008-03", "/us/511/1008-14", "/us/511/1008-10", "/us/511/1008-02", "/us/511/1008-01" ] }, { "cite": "435 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531234, 2531972, 2532363, 2530606, 2529022 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0625-02", "/nc/334/0625-03", "/nc/334/0625-01", "/nc/334/0625-04", "/nc/334/0625-05" ] }, { "cite": "428 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525843 ], "year": 1993, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0491-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "66" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "825" }, { "page": "658" }, { "page": "816" }, { "page": "653" }, { "page": "655", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "131 L. Ed. 2d 147", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "513 U.S. 1198", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1332704, 1334530, 1334917, 1333574, 1335879, 1333418, 1330476, 1331853, 1333519, 1335898, 1331418, 1335166 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/513/1198-10", "/us/513/1198-05", "/us/513/1198-12", "/us/513/1198-01", "/us/513/1198-02", "/us/513/1198-11", "/us/513/1198-07", "/us/513/1198-08", "/us/513/1198-06", "/us/513/1198-04", "/us/513/1198-09", "/us/513/1198-03" ] }, { "cite": "447 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "337 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551126 ], "year": 1994, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0469-01" ] }, { "cite": "144 L. Ed. 2d 802", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "509 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "439" } ], "opinion_index": 0 }, { "cite": "349 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571512 ], "year": 1998, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0459-01" ] }, { "cite": "145 L. Ed. 2d 87", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "509 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "349 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571595 ], "year": 1998, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0573-01" ] }, { "cite": "349 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "year": 1986, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "104 L. Ed. 2d 1009", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "490 U.S. 1101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605985, 605858, 606052, 605061, 605286, 605446, 604937, 604876, 605069, 605139, 605716, 605395, 605075, 604980, 605430, 605241 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1101-03", "/us/490/1101-05", "/us/490/1101-08", "/us/490/1101-12", "/us/490/1101-15", "/us/490/1101-14", "/us/490/1101-11", "/us/490/1101-13", "/us/490/1101-01", "/us/490/1101-09", "/us/490/1101-02", "/us/490/1101-10", "/us/490/1101-04", "/us/490/1101-07", "/us/490/1101-06", "/us/490/1101-16" ] }, { "cite": "374 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "254-55" } ], "opinion_index": 0 }, { "cite": "323 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565899 ], "year": 1988, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0508-01" ] }, { "cite": "523 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "670" }, { "page": "670-71" }, { "page": "671" }, { "page": "672" } ], "opinion_index": 0 }, { "cite": "351 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155670 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0277-01" ] } ], "analysis": { "cardinality": 1034, "char_count": 27237, "ocr_confidence": 0.73, "pagerank": { "raw": 2.017399896287227e-07, "percentile": 0.7449880282595627 }, "sha256": "b3c3ac75e4405753a99f87cef22b52a6d29662a077bcd3c324f87c0dec06a926", "simhash": "1:23eb62367767cefc", "word_count": 4412 }, "last_updated": "2023-07-14T19:38:07.529951+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Freeman did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. FLOYD CURTIS WADDELL" ], "opinions": [ { "text": "LAKE, Justice.\nOn 6 February 1995, defendant was indicted for two counts of first-degree statutory sex offense, three counts of taking indecent liberties with a minor, three counts of lewd and lascivious acts, and two counts of felony child abuse. The cases were joined for trial and came to trial before a jury at the 21 August 1995 Criminal Session of Superior Court, Wayne County. The jury found defendant not guilty of one count of first-degree sex offense and convicted him of all other offenses enumerated above. Defendant was sentenced to life imprisonment for the first-degree sex offense, three consecutive ten-year terms for taking indecent liberties with a minor and committing a lewd and lascivious act, and two consecutive ten-year terms for felony child abuse. From these judgments and convictions, defendant gave timely notice of appeal, and the Court of Appeals, with one judge dissenting, affirmed the trial court. Defendant appealed to this Court based on the dissent below and the assertion that another issue determined by the Court of Appeals raised a substantial constitutional question.\nThe State\u2019s evidence tended to show that subsequent to defendant\u2019s divorce from Connie Waddell, she was awarded custody of their son, with defendant accorded supervised visitation one day a weekend from 1:00 to 5:00 p.m., commencing in March 1993. On 27 August 1994, visitation was increased to supervised visitation one day a weekend from 9:00 a.m. to 9:00 p.m. Apparently, defendant did not understand that his visitation was to be supervised by the child\u2019s paternal grandmother, and the majority of defendant\u2019s visitation with his son was unsupervised.\nAccording to Ms. Waddell, the child developed behavioral problems after beginning extended visitation with his father, including bed-wetting, masturbation and aggressive behavior when he became angry, such as hitting and name-calling. Ms. Waddell related that she had not seen the child masturbate previous to his visitation with his father and that the child told her \u201chis daddy done [like] that.\u201d\nAfter a 4 September 1994 visit with defendant, Ms. Waddell stated the child, then six years old, \u201cstarted touching his privates, masturbating and saying my daddy, my daddy, my daddy,\u201d and that \u201chis daddy let him touch his privates.\u201d After visitation on 10 September 1994, the child told Ms. Waddell he and his father had washed the car together in the nude and that \u201chis father had him to masturbate him and he [the child] saw it shoot off.\u201d Thereafter, Ms. Waddell notified Kim Sekulich of the Johnston County Department of Social Services (DSS), who told Ms. Waddell to take the child to Wake Medical Center, where he received a physical exam and met with a psychiatrist.\nOn 15 September 1994, the child was interviewed by Sekulich at his school. According to Sekulich, the child told her about washing the car in the nude with his father, described seeing his father masturbate and said his father \u201cshot it off in the air.\u201d The child used the word \u201cpeanut\u201d to describe his genitalia and reported he and his father touched each other\u2019s peanuts. Sekulich subsequently filed a petition alleging defendant\u2019s abuse and neglect of the child. Defendant was thereafter interviewed and arrested by police on 23 September 1994.\nOn 4 August 1995 and 17 August 1995, the State gave notice to defendant and the trial court that if the child victim was deemed unavailable, the statements and testimony of Ms. Lauren Rockwell-Flick, a licensed psychological associate at Wake Medical Center; Dr. Elizabeth Witman, who performed a physical examination of the child; Ms. Sekulich; Detective Mike Smith; and the child\u2019s mother would be introduced at trial. As expected, the child was found incompetent to testify at trial, and the aforementioned individuals testified regarding statements made to them by the child.\nAt trial, the State presented Rockwell-Flick as an expert in the field of child sexual abuse. She testified, inter alia, that she interviewed the child on 21 September 1994, using anatomically correct dolls. The child again described washing his father\u2019s automobile while wearing no clothes, identified his genitals as a \u201cpeanut,\u201d described seeing his father masturbate to the point of ejaculation, and said his father had touched the child\u2019s genitals. When asked by Rockwell-Flick to demonstrate what his father did, the child said, \u201che takes his pants off . . . and his shirt,\u201d and then the child \u201ctook the peanut off the adult male doll and put it in the mouth of the boy doll.\u201d When Rockwell-Flick asked, \u201cdoes his peanut touch your mouth?\u201d the child responded affirmatively. Rockwell-Flick inquired whether his father had ever done anything to the child\u2019s rectal area, and the child took both the boy and adult dolls and began touching the adult doll\u2019s penis to the rectum of the boy doll. During a second interview by Rockwell-Flick, on 27 September 1994, the child repeated demonstrations of oral and anal sex with the adult male and the boy anatomical dolls and indicated the child\u2019s penis had been in his father\u2019s mouth. Both interviews between Rockwell-Flick and the child were videotaped. However, only the tape from the 21 September 1994 interview was admitted into evidence, over defendant\u2019s objection, and shown to the jury.\nOn appeal, defendant first argues the trial court erred by overruling defendant\u2019s objection to the admission of the hearsay testimony of witness Rockwell-Flick, which the Court of Appeals held was admissible under the firmly rooted hearsay exception of \u201cStatements for Purposes of Medical Diagnosis or Treatment,\u201d N.C.G.S. \u00a7 8C-1, Rule 803(4) (1999). After a thorough review of the record, we find that, contrary to defendant\u2019s contentions, defendant did not object to the admission of Rockwell-Flick\u2019s testimony at trial as required to preserve the question for appellate review. N.C. R. App. P. 10(b). At an early stage in Rockwell-Flick\u2019s testimony, defendant did object to testimony regarding the child\u2019s responses to questions about the body parts of the anatomically correct male dolls. Defendant also objected to the State\u2019s instruction to Rockwell-Flick to explain how she had conducted the interview with the child. However, after these preliminary objections, Rockwell-Flick entered into extended testimony, running over fourteen pages of the transcript, which was a continuous detailed narrative, without question from the State and without objection from defendant. It was after this testimony that defendant objected to the jury\u2019s being shown the video of Rockwell-Flick\u2019s interview of the child. In response to that objection, the trial court pointed out that defendant had not objected to testimony which had already been given regarding the content of the interview between Rockwell-Flick and the child. Defendant acknowledged through counsel that there had not been an objection, and defendant then specifically stated he thought Rockwell-Flick could testify as to her examination of the child.\nBased on the above, defendant clearly not only did not object to the Rockwell-Flick testimony, but also did not think the testimony was objectionable at the time. Although defendant did object to the presentation of the videotape, Rockwell-Flick had already given detailed testimony regarding the content of the video before the objection was made. Notwithstanding defendant\u2019s lack of objection, and thus failure to preserve this issue for appellate review, we will review the Sixth Amendment confrontation question addressed by the opinion of the Court of Appeals for plain error.\nThis Court has recently examined the admissibility of testimony from the very same witness, Rockwell-Flick, under very similar circumstances in State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000). In Hinnant, this Court held that hearsay evidence is admissible under Rule 803(4) only when two inquires are satisfied. Id. at 289, 523 S.E.2d at 670. \u201cFirst, the trial court must determine that the declarant intended to make the statements at issue in order to obtain medical diagnosis or treatment. . . . Second, the trial court must determine that the declarant\u2019s statements were reasonably pertinent to medical diagnosis or treatment.\u201d Id. at 289, 523 S.E.2d at 670-71. In Hinnant, the child victim was interviewed by Rockwell-Flick two weeks after the initial medical examination, in a \u201cchild-friendly\u201d room, in a non-medical environment, and with a series of leading questions, whereby Rockwell-Flick systematically pointed to the anatomically correct dolls and asked whether anyone had performed various acts with the child. The record did not disclose that Rockwell-Flick or anyone else explained to the child the medical purpose of the interview or the importance of truthful answers. This Court concluded that there was no evidence the child had a treatment motive when speaking to Rockwell-Flick and that the record did not disclose that Rockwell-Flick or anyone else explained to the child the medical purpose of the interview or the importance of truthful answers. Id. at 289-90, 523 S.E.2d at 671. Based on this lack of evidence, this Court held the two-prong test required for the admissibility of hearsay evidence under Rule 803(4) had not been satisfied, and the Rockwell-Flick testimony was therefore not admissible under that rule. Id.\nThe circumstances surrounding the interview of the child victim in the case sub judice are essentially identical to those in Hinnant. The interview took place after the initial medical examination, in a \u201cchild-friendly\u201d room, in a nonmedical environment, and with a series of leading questions. The record also lacks any evidence that there was a medical treatment motivation on the part of the child declarant or that Rockwell-Flick or anyone else explained to the child the medical purpose of the interview or the importance of truthful answers. Therefore, for the reasons stated in Hinnant, we conclude the Court of Appeals erred in determining that Rockwell-Flick\u2019s testimony was properly admitted under Rule 803(4).\nIn Hinnant, this Court also noted that Rockwell-Flick\u2019s testimony might have been admissible under the residual exceptions to the hearsay rule provided there was proper notice, equivalent circumstantial guarantees of trustworthiness and findings of fact and conclusions of law made by the trial court. Id.; see also N.C.G.S. \u00a7 8C-1, Rules 803(24), 804(b)(5) (1999). In reviewing the record in the instant case, we note several references made by the State to the residual hearsay exceptions. In fact, the State pointed out to the trial court that the State recognized it had the burden to file notice of its intention to use residual hearsay and had ensured that timely notice was filed. However, the record also shows the State vacillated between relying on the residual and the medical exceptions to hearsay, and at a pivotal point during in limine discussions regarding the admissibility of Rockwell-Flick\u2019s testimony, the State determined its position in tender of this evidence in stating, \u201c[T]he testimony of [Rockwell-Flick] comes in under the medical diagnosis.\u201d This statement, along with the fact that the trial court then did not make any findings of fact and conclusions of law supporting admissibility as residual hearsay, also precludes a finding of admissibility under the residual exception to hearsay. See State v. Deanes, 323 N.C. 508, 515, 374 S.E.2d 249, 254-55 (1988), cert. denied, 490 U.S. 1101, 104 L. Ed. 2d 1009 (1989).\nNotwithstanding the erroneous admission of the Rockwell-Flick testimony in the case sub judice, as in Hinnant, we note that an erroneous admission of hearsay \u201c \u2018is not always so prejudicial as to require a new trial.\u2019 \u201d Hinnant, 351 N.C. at 291, 523 S.E.2d at 672 (quoting State v. Ramey, 318 N.C. 457, 470, 349 S.E.2d 566, 574 (1986)). In reviewing the prejudicial impact of Rockwell-Flick\u2019s testimony in the present case, because defendant not only did not object to the admission of the testimony at trial, but also stated he thought the testimony as to the examination of the child was admissible, the issue is reviewed for \u201cplain error.\u201d See State v. Murillo, 349 N.C. 573, 589, 509 S.E.2d 752, 762 (1998), cert. denied, \u2014 U.S. \u2014, 145 L. Ed. 2d 87 (1999); State v. Bowman, 349 N.C. 459, 477, 509 S.E.2d 428, 439 (1998), cert. denied, \u2014 U.S. \u2014, 144 L. Ed. 2d 802 (1999). Before an error by the trial court amounts to \u201cplain error,\u201d we must be convinced that absent the error the jury probably would have reached a different verdict. See State v. Keel, 337 N.C. 469, 485, 447 S.E.2d 748, 757 (1994), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147 (1995). Therefore, the test for \u201cplain error\u201d places a much heavier burden upon the defendant than that imposed upon those defendants who have preserved their rights on appeal by timely objection. Id.\nTo determine whether the jury probably would have reached a different verdict had Rockwell-Flick\u2019s testimony not been considered, we review the other evidence before the jury. The record shows Ms. Waddell testified without objection that her son told her he washed the car naked with defendant and that defendant masturbated in front of the child to the point of ejaculation. On cross-examination, the mother also stated her son said defendant had the child put his mouth on defendant\u2019s \u201cpeanut.\u201d\nCounsel stipulated Dr. Witman as an expert in the field of pediatrics and child sex abuse. She testified, without objection, that she conducted a physical examination of the child on or about 21 September 1994 and that in her opinion the child \u201cprobably had been sexually abused.\u201d\nMs. Sekulich testified, without objection, that the child told her defendant masturbated in front of him and \u201cshot it off\u2019; that defendant had touched the child\u2019s peanut; that the child touched defendant\u2019s peanut; and that defendant made a voluntary statement at the juvenile hearing that he had been on the couch watching TV, had fallen asleep, and had awakened to find the child\u2019s mouth on his \u201cstuff.\u201d\nDetective Smith testified that defendant voluntarily came to the Wayne County Sheriff\u2019s Office, was given his Miranda rights and made an oral statement. Defendant\u2019s statement was reduced to writing; was reviewed sentence by sentence, word by word with defendant; and was signed by defendant. The trial court found the statement was freely, voluntarily and understandingly made after defendant was adequately advised of his constitutional rights, and the statement was read into evidence for the jury\u2019s consideration. In the statement, defendant admits to sexually molesting his son since 1992; to taking problems that he had with his ex-wife out on his son; to masturbating in front of his son; to having his son put lotion on defendant\u2019s penis and masturbate him; and that on two separate occasions, once while washing the car and once while in the bathroom together, the child had taken his father\u2019s penis in his hand and put it in the child\u2019s mouth. Defendant admitted in his statement that he knew the things he was doing to his son were wrong and that he was in need of help.\nDetective Smith also testified at trial, without objection, that he had presented the child victim with anatomically correct dolls and asked if the child would like to name the dolls. The child named the boy doll after himself and the adult male doll \u201cDaddy.\u201d Detective Smith asked the child what he did when he and his daddy were alone, and the child said that he would have to take the dolls\u2019 clothes off first to show him. The child removed the dolls\u2019 clothes and demonstrated the child doll putting his mouth on the adult doll\u2019s penis. He also demonstrated the adult doll putting his penis on the child doll\u2019s buttocks. The child told the detective he had put his mouth on his daddy\u2019s peanut, that he put lotion on his daddy\u2019s peanut and that his daddy put lotion on the child\u2019s peanut. The child also related that \u201cafter putting lotion on his daddy\u2019s peanut, stuff came out of the peanut into the air.\u201d\nAt trial, defendant testified on direct examination that he had his son put lotion on his penis and that his son had put defendant\u2019s penis in his mouth once when they were washing the car and once when defendant fell asleep watching TV. When asked about the automobile washing incident, defendant responded that he was wearing swim trunks and that his son ran up to him, grabbed defendant\u2019s penis and put it in his mouth. When asked about the incident on the couch, defendant stated he had fallen asleep on the couch and awoke to find his penis in the child\u2019s mouth. Defendant also testified on cross-examination that the child put his mouth on defendant\u2019s penis once while in defendant\u2019s bathroom. Defendant testified that he did not know why the child had done this and that the child had done it for only a few seconds before defendant told him to stop.\nAt trial, defendant also acknowledged three prior convictions for indecent exposure and one conviction for felony child abuse arising from the death of defendant\u2019s child from a previous marriage. On direct examination, defendant initially stated the child died from a head injury received in a car accident which occurred two weeks prior to the child\u2019s death. On cross-examination, defendant clarified that the child died from a head fracture that medical reports indicated happened on the day of the child\u2019s death.\nThe aforementioned testimony from Ms. Waddell, Dr. Witman, Ms. Sekulich, Detective Smith and the defendant himself has not been challenged on appeal to this Court. Therefore, applying the \u201cplain error\u201d standard and considering the abundance of evidence properly presented at trial, particularly defendant\u2019s own extensive and detailed admissions, we cannot conclude that because of the trial court\u2019s error in admitting Rockwell-Flick\u2019s testimony the scales were tilted to the extent that a different result was reached by the jury than would have been reached otherwise. To the contrary, we conclude a different result probably would not have been reached by the jury without the Rockwell-Flick testimony. We therefore hold that the erroneous admission of the Rockwell-Flick testimony did not constitute plain error, and defendant is not entitled to a new trial as a result of that error.\nDefendant next assigns error to the Court of Appeals\u2019 holding that the trial court did not err when it denied defendant\u2019s request to instruct the jury that the child had been found incompetent to testify. The parties do not dispute the fact that the child was incompetent to testify at trial and was therefore \u201cunavailable.\u201d He suffered from a speech impediment and learning disabilities, became distracted and confused during questioning and did not understand the need to tell the truth at trial.\nThe sequence of events which led to defendant\u2019s request for jury instruction began when the State called the child to testify before the jury. The State opened the examination by asking the child whether he understood the need to tell the truth. Although the child became confused several times during questioning, initially it appeared as though the child could sufficiently express himself and that he understood the need to tell the truth, as required by N.C.G.S. \u00a7 8C-1, Rule 601. Defendant then requested a voir dire of the witness, and the trial court sent the jury out while the child was still on the stand. During continuing questioning, the child was repeatedly asked if he would promise to tell the truth in court, to which the child began to consistently reply, \u201cNo.\u201d When the trial court asked, \u201cDon\u2019t you know it is good to tell the truth?\u201d the child responded, \u201cNo.\u201d The trial court eventually concluded the child was unable to \u201cexpress to the Court his understanding of what it is to tell the truth and what it is to tell a lie,\u201d and the child was brought down from the witness stand and removed from the courtroom. Before the jury was brought back into the courtroom, the trial court denied defendant\u2019s request for instruction to the jury explaining why the child was no longer on the stand.\nDefendant asserts that the boy\u2019s words were put before the jury in the hearsay testimony of Rockwell-Flick and other witnesses, and because the jury was never instructed the child was incompetent to testify, the jury was necessarily led to' believe his words were worthy of belief. Precedent has established, however, that \u201cthe Confrontation Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial.\u201d Idaho v. Wright, 497 U.S. 805, 825, 111 L. Ed. 2d 638, 658 (1990). In the case sub judice, the admissibility of the child\u2019s prior statements to police, doctors and his mother is determined by their own indicia of reliability. The reliability requirement can be met in either of two ways: \u201cwhere the hearsay statement \u2018falls within a firmly rooted hearsay exception,\u2019 or where it is supported by \u2018a showing of particularized guarantees of trustworthiness.\u2019 \u201d Id. at 816, 111 L. Ed. 2d at 653 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608 (1980)). \u201c[T]he relevant circumstances [in determining trustworthiness] include only those that surround the making of the statement . . . .\u201d Id. at 819, 111 L. Ed. 2d at 655 (emphasis added). The determination of whether the child victim is competent to testify, which is determined at the time of trial, is a separate analysis from the determination of whether hearsay statements meet the required standard of reliability or trustworthiness as judged at the time the statement was made. Therefore, we reject defendant\u2019s intimation that the trial court\u2019s finding that the child was incompetent as a witness renders the child\u2019s out-of-court statements unreliable. See State v. Rogers, 109 N.C. App. 491, 498, 428 S.E.2d 220, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1008, 128 L. Ed. 2d 54 (1994).\nAdditionally, the presiding judge is given large discretionary power as to the conduct of a trial. State v. Young, 312 N.C. 669, 678, 325 S.E.2d 181, 187 (1985); State v. Rhodes, 290 N.C. 16, 23, 224 S.E.2d 631, 635 (1976). 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 the trial court\u2019s discretion and are reviewed only for abuse of that discretion. Young, 312 N.C. at 678, 325 S.E.2d at 187.\nIn determining whether defendant could possibly have been prejudiced by this ruling of the trial court, we find it relevant and determinative that the credibility of the child\u2019s version of events does not appear to have been in question. The child\u2019s version is, for the most part, consistent with defendant\u2019s own testimony. The primary variance between defendant\u2019s own admissions and the accusations against him was how the child\u2019s mouth came to be on his father\u2019s penis and the extent of any rectal contact which occurred. Assuming arguendo the jury unanimously believed defendant\u2019s contention that there was no inappropriate rectal contact, there was abundant evidence of fellatio through defendant\u2019s own admissions to support his conviction of one count of first-degree sex offense. Based on the lack of conflicting testimony before the jury, we are unpersuaded by defendant\u2019s claim that he was prejudiced by the lack of instruction regarding the child\u2019s competency to testify at trial. Therefore, based on the discretionary nature of the trial court\u2019s ruling and the lack of possible prejudice resulting from that ruling, we conclude there was no abuse of discretion or resulting error.\nIn summary, based on our holding in Hinnant, we hold the Rockwell-Flick testimony was inadmissible under the medical exception to hearsay. However, based on \u201cplain error\u201d analysis of that issue, we conclude defendant received a fair trial, free from prejudicial error, and we therefore modify and affirm the decision of the Court of Appeals.\nMODIFIED AND AFFIRMED.\nJustice Freeman did not participate in the consideration or decision of this case.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Anita LeVeaux-Quigless, Assistant Attorney General, for the State.", "Malcolm Ray Fiunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FLOYD CURTIS WADDELL\nNo. 418A98\n(Filed 7 April 2000)\n1. Evidence\u2014 hearsay \u2014 medical diagnosis or treatment exception \u2014 child sexual abuse victim \u2014 statements inadmissible \u2014 admission not plain error\nStatements made by an alleged child victim of sexual offenses, indecent liberties, and felonious child abuse to a licensed psychological associate were not admissible under the medical diagnosis or treatment exception to the hearsay rule where the interview took place after the initial medical examination, in a child-friendly room, in a nonmedical environment, and with a series of leading questions; and the record lacks any evidence that there was a medical treatment motivation on the part of the child declarant or that the psychological associate or anyone else explained to the child the medical purpose of the interview or the importance of truthful answers. However, defendant failed to object to the admission of these statements at trial, and the admission of the statements did not constitute plain error where defendant\u2019s convictions of one count of first-degree sexual offense, taking indecent liberties with a minor, felony child abuse and lewd and lascivious acts were supported by (1) the testimony of the child\u2019s mother, a pediatrician, a social services worker, a psychological associate, and a detective, and (2) defendant\u2019s pretrial admissions to the detective and his admissions at trial.\n2. Witnesses\u2014 child sexual abuse victim \u2014 incompetency to testify \u2014 court\u2019s refusal to instruct\nIn a prosecution for first-degree statutory sex offense, taking indecent liberties, felony child abuse and lewd and lascivious acts wherein the child victim was ruled incompetent to testify after he had been called to the stand and a voir dire was conducted, the trial court did not abuse its discretion in refusing to instruct the jury that the child was no longer on the stand because he had been found incompetent to testify since (1) the trial court\u2019s finding that the child was incompetent to testify as a witness did not render unreliable the child\u2019s out-of-court statements to other witnesses, and (2) defendant could not have been prejudiced because the credibility of the child\u2019s version of the events was not in question and was, for the most part, consistent with defendant\u2019s own testimony.\nJustice Freeman did not participate in the consideration or decision of this case.\nOn appeal of right to review a substantial constitutional question pursuant to N.C.G.S. \u00a7 7A-30(1) and pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 130 N.C. App. 488, 504 S.E.2d 84 (1998), finding no error in judgments entered by Everett, J., on 25 August 1995 in Superior Court, Wayne County. Heard in the Supreme Court 11 May 1999.\nMichael F. Easley, Attorney General, by Anita LeVeaux-Quigless, Assistant Attorney General, for the State.\nMalcolm Ray Fiunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0413-01", "first_page_order": 463, "last_page_order": 474 }