Lucas, Matter of

• Decision Date: 05 July 1989
• Docket Number: No. 8827DC1156,8827DC1156
• Citation: 380 S.E.2d 563,94 N.C.App. 442
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Ronnie Leon LUCAS.

Page 563

380 S.E.2d 563

94 N.C.App. 442

In the Matter of Ronnie Leon LUCAS.

No. 8827DC1156.

Court of Appeals of North Carolina.

July 5, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. T. Lane Mallonee, Black Mountain, for the State.

Asst. Public Defender Gay R. Atkins, Gastonia, for defendant-appellant.

GREENE, Judge.

Ronnie Leon Lucas (hereinafter "juvenile"), age fourteen, was alleged in a juvenile petition to have committed a sexual offense with a three-year-old female (hereinafter "child") in violation of N.C.G.S. Sec. 14-27.4(a)(1) (1986). The trial judge found facts and adjudicated the juvenile to be delinquent and placed him on twelve-months probation. The juvenile appeals.

At the adjudicatory hearing, the trial judge, after hearing testimony from the child, determined without objection that she was not competent to be a witness in the case. The State's evidence to which there was no objection, tends to show the child was allowed by her mother to leave her house on or about 16 February 1988 and go into the woods, approximately twenty-five feet from the child's house, to play with her two brothers, ages six and seven, and the juvenile. Some "five to ten minutes" later the child came out of the woods crying. The mother then was allowed to testify, over objection, that the child told her that "Ronnie was mean to me" and that "her bottom was sore." The mother testified she did not check her child's bottom closely but that it appeared "raw and irritated" and that she put some "corn starch and ... Desitin on her." The mother further testified, over the objection of the juvenile, that several days later the child told her the juvenile had taken his "whacker" out and "had stuck it at her" and pointed to her bottom. The mother testified that the child "refers to a boy's ... privates as a 'whacker,' that's just her term." The mother testified that during the remainder of February and March the child "went through bed wetting," "[s]he was very clinging," "[s]he kinda reverted back to a real babish thing," and that she was afraid to go to church and to pre-school.

Sergeant Bill May of the Belmont Police Department testified that the mother brought the child to his office and that he talked to the mother and the child on the afternoon of 22 February 1988. Over the juvenile's objection, the policeman was allowed to testify that the child told him "that Ronnie pulled [down] her pants and put his 'whacker' in her." The policeman further testified that on that same day he "transported them to Gaston Memorial Hospital to have her examined by a doctor." At the hospital, the child was seen by a doctor and the mother received a prescription for the child. About a week later, at the suggestion of Sergeant May, the mother took the child to another doctor, Dr. Ellis Fisher.

Dr. Fisher, a pediatrician at the Gastonia Children's Clinic, was accepted as an "expert witness in medicine with a specialty in pediatrics" and examined the child in his office on 29 February 1988. The reason for the examination, in the words of the doctor, was to determine "if there was any evidence of sexual abuse." Dr. Fisher was allowed, over the juvenile's objection, to testify that the child told him that the juvenile "pulled his 'whacker' out and pulled my pants down." Dr. Fisher further testified:

A. And then [child] said that he put a spring in me and I questioned her, "Where was this spring?", "On his whacker". Did it hurt when he put this spring in you? She said yes. Did he tell you that he had a spring and she said yes. Then I asked her "Where did he put it in you, can you show me?" Show me on the doll baby where he put it and I asked her to pull the doll baby's pants down and "Where did he put it in?"; she pointed to the vaginal area of the female doll. Then I asked her, "Did he do this one time?" and she indicated two times. She said that it was on two different days.

....

A. ... In obtaining the rectal culture, she stated that this was where Ronnie put his "whacker". When I did the vaginal exam, she said, "This is not where Ronnie put his whacker." ....

....

A. The rectal structure appeared to be normal. There were no tears, lacerations or other abnormalities or alteration than normal [word not audible] tone. It was a normal examination....

The juvenile testified he did go into the woods with the child and her two brothers and his brother, age eight. He testified they were in the woods about an hour and a half "building the clubhouse." He denied ever pulling the child's "pants down" and the only time he had ever touched her was "when she rode to school with us" when I helped "put her in the car."

__________

This appeal presents the issues of whether the trial court erred in: I) allowing into evidence out-of-court statements of the child, who was declared by the trial court to be incompetent to testify, through the testimony of (A) the mother of the child, (B) Dr. Ellis Fisher, and (C) Sergeant Bill May; II) allowing Dr. Fisher to testify that the "ability ... to create testimony ... ought to be ... foreign to the child of pre-school"; III) allowing Dr. Fisher to testify as to the general symptoms and characteristics of sexually abused children; and IV) denying the juvenile's motion to dismiss the petition at the close of all the evidence.

I

After the trial court determined the child "was not competent to be a witness" in the case, the State through the testimony of the mother, Dr. Fisher, and Sergeant May offered the out-of-court statements of the child. This testimony was hearsay "because the statements were made by one other than the declarant at trial and were offered to prove the truth of the matter asserted," State v. Bullock, 320 N.C. 780, 782, 360 S.E.2d 689, 690 (1987), i.e., that the juvenile had sexually assaulted the child. The juvenile contends the evidence is inadmissible hearsay and does not come within the purview of any of the hearsay exceptions. The State contends the out-of-court statements of the child made to the mother and to the doctor are admissible under the medical diagnosis or treatment exception of N.C.G.S. Sec. 8C-1, Rule 803(4) (1988).

Hearsay statements are admissible into evidence if made for the purposes of medical diagnosis or treatment and if reasonably pertinent to the diagnosis or the treatment. N.C.G.S. Sec. 8C-1, Rule 803(4); State v. Aguallo, 318 N.C. 590, 596, 350 S.E.2d 76, 80 (1986). However, in a criminal trial where the person making the out-of-court statements does not testify, the State is prohibited, by virtue of the Confrontation Clauses of the State (Article I, Section 23) and Federal (Sixth Amendment) Constitutions, from introducing hearsay evidence unless the proponent of the testimony shows "the necessity for using the hearsay declaration" and "the inherent trustworthiness of the declaration." State v. Deanes, 323 N.C. 508, 525, 374 S.E.2d 249, 260 (1988), cert. denied, 490 U.S. 1101, 109 S.Ct. 2455, 104 L.Ed.2d 1009 (1989); State v. Gregory, 78 N.C.App. 565, 568, 338 S.E.2d 110, 112 (1985), disc. rev. denied, 316 N.C. 382, 342 S.E.2d 901 (1986).

A

The statements of the child to the mother regarding what the defendant allegedly did to her were made within several days of the alleged incident and resulted in the child receiving, within fourteen days, medical attention at a local hospital and a subsequent evaluation by Dr. Fisher. Therefore, the statements were for the purposes of medical diagnosis or treatment. See State v. Smith, 315 N.C. 76, 85, 337 S.E.2d 833, 840 (1985). Furthermore, the child's statements were pertinent to diagnosis and treatment as they suggested to the doctors, the nature of the problem which in turn directed the doctors in their examination of the child. See Aguallo, 318 N.C. at 597, 350 S.E.2d at 81. Therefore, the mother's testimony regarding her conversations with her child was properly admitted as substantive evidence pursuant to Rule 803(4). See Smith, 315 N.C. at 85, 337 S.E.2d at 840.

We also conclude the admission of the hearsay testimony did not infringe upon the defendant's constitutional right to confrontation as the evidence was both necessary and trustworthy. The unavailability of the child to testify at the trial, as a result of the trial court's declaration of incompetency, and the evidentiary importance of the child's statements adequately demonstrates the necessity for using the hearsay declaration. See Gregory, 78 N.C.App. at 568, 338 S.E.2d at 112-13; State v. Jones, 89 N.C.App. 584, 590, 367 S.E.2d 139, 143 (1988). The trustworthiness of the child's out-of-court statements was not specifically determined by the trial judge. In order to allow effective appellate review, findings of fact and conclusions of law on the trustworthiness issue should appear of record. See Smith, 315 N.C. at 94, 337 S.E.2d at 845. Nonetheless, even in the absence of "a showing of particularized guarantees of trustworthiness," through detailed findings, such out-of-court statements are deemed trustworthy if "the evidence falls within a firmly rooted hearsay exception." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980) (emphasis added); see Goldman, Not So "Firmly Rooted": Exceptions to the Confrontation Clause, 66 N.C.L.Rev. 1, 47 (1987) (suggesting that presumption of trustworthiness created by evidence within firmly rooted hearsay exception should be rebuttable). The United States Supreme Court recently had an opportunity to apply this rule and held that "a court need not independently inquire into the reliability" of statements sought to be admitted under the co-conspirator exception of the hearsay rule (equivalent to North Carolina Rule of Evidence 801(d)(E)) because that exception is "firmly enough rooted in our jurisprudence." Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 2783, 97 L.Ed.2d 144, 157 (1987). With this holding came an apparent rejection of cases holding that all...