State v. Hinnant , 131 N.C. App. 591 ( 1998 )

EAGLES, Chief Judge.

We first consider whether the trial court erred in admitting into evidence the hearsay statements of the victim, J. Defendant contends that the trial court, in order to admit the hearsay statements, must make specific findings of fact with respect to the trustworthiness and probative value of the statements. State v. Deanes, 323 N.C. 508, 515, 374 S.E.2d 249, 255 (1988), cert. denied, 490 U.S. 1101, 104 L.Ed.2d 1009 (1989). Defendant asserts that the trial court made no such findings. Additionally, defendant argues that even if the trial court had made the required findings of fact, the statements would fail to meet the test of admissibility. First, defendant argues that the statements made by J to Officer Taylor and Ms. Burnett were not specific as to time, place and occurrence. Additionally, defendant contends that J’s statements to the officers were inconsistent. Defendant contends that these statements were “contra-indicative of trustworthiness.” Second, defendant contends that the testimony of Ms. Roswell-Flick should have been excluded based on Idaho v. Wright, 497 U.S. 805, 111 L.Ed.2d 638 (1990) because Roswell-Flicks’ interview with J “lacked procedural safeguards” and violated defendant’s right to confrontation. Defendant asserts that the trial court violated defendant’s right to confrontation because the statements were not reliable enough to justify their admission without any opportunity for cross-examination.

The State first contends that the trial court properly determined that J was unavailable due to her emotional state and not as a result of her incompetency to testify. Second, the State argues that J’s statements were not admitted pursuant to the residual exception to the hearsay rule. The State contends that the statements were admitted under firmly rooted exceptions to the hearsay rule; the excited utterance exception and the existing mental, emotional and physical condition exception. Accordingly, the State asserts that no findings regarding the reliability of the statements were required because reliability is presumed under these exceptions. State v. Rogers, 109 N.C. App. 491, 499-500, 428 S.E.2d 220, 225, review denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied sub nom. Rogers v. North Carolina, 511 U.S. 1008, 128 L.Ed.2d 54, reh’g denied, 511 U.S. 1102, 128 L.Ed.2d 495 (1994).

After careful consideration of the record, briefs and contentions of both parties, we conclude there was no error. The trial court determined that J was unavailable due to her emotional condition and not due to any incompetency to testify. Such a determination is properly within the court’s discretion based on the trial judge’s “personal observation of the witness’s demeanor and responses to questions on voir dire.” State v. Chandler, 324 N.C. 172, 180, 376 S.E.2d 728, 734 (1989) (citing State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985)). Kim Alexander, a clinical social worker testifying as an expert in child sexual abuse, testified on voir dire that J feared defendant and would be traumatized by seeing defendant in the courtroom. Accordingly, the trial court properly determined that J, a 5 year old child, was unavailable due to her emotional condition.

The statements made by J to Ms. Burnett and Officer Taylor were admitted under Rule 803(2), the excited utterance exception, and Rule 803(3), the existing mental, emotional and physical condition exception to the hearsay rule. The statements made to Ms. Roswell-Flick were admitted under Rule 803(4) as statements made for purposes of medical diagnosis or treatment. These exceptions are firmly rooted exceptions to the hearsay rule. Rogers, 109 N.C. App. at 500, 428 S.E.2d at 225. “[Statements admissible under a traditional, or ‘firmly rooted,’ hearsay exception are deemed inherently trustworthy and thus, without further inquiry, satisfy the reliability prong of the Confrontation Clause test.” Id. at 499, 428 S.E.2d at 225 (quoting State v. Jones, 89 N.C. App. 584, 598, 367 S.E.2d 139, 147-48 (1988)). Accordingly, we hold that the statements were properly admitted and that there was no error.

We next consider whether the trial court erred in denying defendant’s motion to dismiss the count of first degree rape at the close of the State’s evidence. Defendant argues that “the State failed to show any evidence of penetration of the victim’s vagina, however slight, and therefore the trial court erred in denying the motion [to dismiss].” Defendant states that even though defendant’s counsel at trial failed to renew the motion to dismiss at the close of all the evidence, the sufficiency of the evidence to support a conviction is always a matter that may be reviewed on appeal. G.S. 15A-1446(d)(5). Additionally, defendant argues that should the Court determine that defendant has failed to preserve this issue for appellate review, and that it does not constitute plain error, the court should address the issue of whether defendant’s trial counsel rendered ineffective assistance because he failed to move to dismiss at the close of all the evidence. Defendant contends that the error was prejudicial to defendant because he was convicted of first degree rape and “the evidence of penetration was so slight as to justify the granting of the motion to dismiss.”

The State first argues that defendant has waived this assignment of error because the defendant’s introduction of evidence on his behalf waives his right to appeal denial of a motion to dismiss made at the close of the State’s evidence. The State asserts that even if appellate review had not been waived, there was sufficient evidence of penetration to support the conviction. The State points to the testimony of Roswell-Flick, who testified that J told her that defendant had touched her vagina with his penis, and had also told her that he had put his penis inside her vagina. The State also contends that the actions of J mimicking sexual intercourse with a punching bag, and her placement of a male anatomically correct doll face down on top of a female anatomically correct doll, was further evidence of penetration to support defendant’s conviction. Finally, the State contends that defendant’s ineffective assistance of counsel claim has no merit because defendant cannot show that “but for the error, the result of defendant’s trial would have been different.”

We hold that defendant has waived appellate review of this issue. Defendant moved to dismiss the charge of first degree rape at the close of the State’s case for insufficient evidence. The trial court denied the motion. Defendant did not renew his motion to dismiss at the close of all the evidence. Under these facts our Supreme Court has held that:

[U]nder Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure, the issue of insufficiency was not preserved for appellate review. N.C.G.S. § 15A-1446(d)(5) provides that questions of insufficiency of the evidence may be the subject of appellate review even when no objection or motion has been made at trial. However, Rule 10(b)(3) provides that a defendant who fails to make a motion to dismiss at the close of all the evidence may not attack on appeal the sufficiency of the evidence at trial. We have specifically held in this regard that: ‘To the extent that N.C.G.S. § 15A-1446(d)(5) is inconsistent with N.C. R. App. P. 10(b)(3), the statute must fail.’

State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995) (quoting State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987)). Accordingly, appellate review has been waived.

Additionally, the defendant’s claim of ineffective assistance of counsel fails. Defendant cannot show that even if his counsel had moved to dismiss at the close of all the evidence, that the motion would have been granted by the trial court. There was trial testimony concerning evidence of penetration by defendant. Accordingly, defendant cannot show that trial counsel’s failure to move to dismiss at the close of all the evidence prejudiced his defense. State v. Braswell, 312 N.C. 553, 565, 324 S.E.2d 241, 249 (1985). The assignment of error is overruled.

No error.

Judge LEWIS concurs. Judge HUNTER dissents.