State v. Hinnant, No. 22A99.

• Decision Date: 04 February 2000
• Docket Number: No. 22A99.
• Citation: 523 S.E.2d 663
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. George Elton HINNANT.

523 S.E.2d 663

STATE of North Carolina v. George Elton HINNANT.

No. 22A99.

Supreme Court of North Carolina.

February 4, 2000.

Michael F. Easley, Attorney General, by Kendrick C. Fentress and Amy C. Kunstling, Assistant Attorneys General, for the State.

John F. Oates, Jr., Raleigh, for defendant-appellant.

MARTIN, Justice.

On 19 February 1996 defendant was indicted for one count of first-degree rape, one count of first-degree sexual offense, and one count of taking indecent liberties with a minor. Defendant was tried before a jury at the 10 March 1997 Criminal Session of Superior Court, Wake County. The jury found defendant guilty of all charges. After finding factors in aggravation and mitigation, the trial court sentenced defendant to a consolidated active term of 384 to 460 months. After discovering an incorrect sentence calculation, the trial court entered a corrected judgment and commitment providing for a maximum sentence of 470 months. The Court of Appeals, with one judge dissenting, found no error. See State v. Hinnant, 131 N.C.App. 591, 597, 508 S.E.2d 537, 541 (1998)

. Defendant appealed to this Court as a matter of right based on the dissent below and a constitutional question. On 24 June 1999 we allowed defendant's petition for discretionary review of additional issues.¹

At trial the state called the five-year-old alleged victim, J., as its first witness. Defendant objected to J. being permitted to testify on the ground that J., being of tender years and limited understanding, could not understand the meaning of the oath. Defendant then made a motion for the trial court to determine whether J. was competent to testify. As the state proceeded to conduct voir dire of J., J. started crying and had to leave the courtroom. Despite repeated attempts, J. could not be calmed. During a fifteen-minute recess J. broke down crying and screaming.

Because J. could not be calmed, the state called Kim Alexander (Alexander), a clinical social worker for the Wake County Department of Human Resources. Alexander testified that, in her opinion, it was traumatizing and detrimental to J.'s well-being to be in the courtroom with defendant. Thereafter, based on J.'s continued emotional state, the trial court concluded, over defendant's objection, that J. was unable to testify and was, therefore, unavailable as a witness.

The state's evidence at trial tended to show that at the time of the alleged incidents, defendant lived at his mother's home along with his sister, Theresa Burnett (Burnett), Burnett's four-year-old daughter, J., and Burnett's infant daughter, Jaylan. On 16 December 1995 defendant left the residence and walked to a nearby store to drink alcoholic beverages with friends. Around 12:00 p.m. Burnett took J. and Jaylan to meet defendant at the store, and Burnett began drinking. Upon arriving home that afternoon, defendant entered the kitchen to cook dinner, and J. accompanied him. Burnett and Jaylan sat in the living room and watched television. Five or ten minutes later, J. ran into the living room, "running and crying and saying [defendant] had touched her." When asked where defendant had touched her, J. replied that he had touched her "on her butt" and pointed to the area. Burnett called the police, and Officers J.A. Taylor (Officer Taylor) and Sean R. Woolrich (Officer Woolrich) of the Raleigh Police Department responded to the call.

The police arrived around 4:00 p.m. and met defendant, Burnett, and J. on the porch. Burnett and defendant were intoxicated at the time. Burnett told the officers that J. told her defendant touched J.'s buttocks and vagina. J. told Officer Taylor that "[m]y uncle touched my butt this morning. When he touched me, it hurt." J. pointed to her vagina and buttocks to show both officers where defendant had touched her. J. also told Officer Woolrich that defendant put his hands into her pants that morning when she was getting out of bed and that he had also touched her buttocks and vagina when she was playing outside on her bicycle that morning.

The police transported defendant, Burnett, J., and Jaylan to the police station for further interviews. At the police station Burnett was uncooperative. She told Detective Albert O'Connell that defendant could not have done what J. indicated and that J. "would lie about most anything." Detective O'Connell interviewed J. in a separate room. J. told Detective O'Connell that defendant had hurt her. When asked how he hurt her, J. pointed to her crotch and her buttocks and said, "here and here." The detective handed J. an anatomically correct doll and asked her to show him where she had been hurt on the doll. J. took the clothes off the doll and pointed to the doll's vagina. J. undressed a male doll, pointed to his penis, and said, "he hurt me with that." J. then took the male doll and placed it facedown on top of the female doll.

That evening J. was taken to Wake Medical Center for an external genital examination. The doctor performing the exam reported no signs of trauma to J.'s genitals. A follow-up examination was conducted on 2 January 1996, approximately two weeks after the reported abuse. Prior to receiving follow-up medical attention, J. was interviewed by Lauren Rockwell-Flick (Rockwell-Flick), a clinical psychologist specializing in child sexual abuse.

Rockwell-Flick testified that she talked with J. about the alleged sexual abuse to obtain information for the examining physician in this case, Dr. Vivian Denise Everett (Dr. Everett). Over objection, Rockwell-Flick testified as to what J. told her prior to Dr. Everett's physical examination. Using an anatomically correct doll, Rockwell-Flick asked J. if anyone had ever touched her vagina. J. said defendant "put his hand down there" and "it hurt." Rockwell-Flick asked J. whether defendant had "kissed or licked her any place." J. said defendant had licked her and pointed to her vagina. Rockwell-Flick asked J. if she had seen defendant's penis, and J. said yes. When asked what defendant did with his penis, J. responded, "He took it off." When Rockwell-Flick asked whether defendant ever touched J. with his penis, J. said yes. Rockwell-Flick asked J. where defendant placed it. J. pointed directly between her own legs to her vagina. When asked whether he put it on the inside or the outside, J. said, "the inside."

Dr. Everett performed a follow-up examination of J. after Rockwell-Flick's interview. Dr. Everett was concerned because J.'s hymenal tissue was very narrow, but testified that such a finding does not "definitely mean sexual abuse." Dr. Everett also stated that the exam was "consistent with the history [J.] gave Ms. Flick, which was a history of genital fondling, digital vaginal penetration and cunnilingus."

Alexander began treating J. on 7 May 1996. Alexander was qualified at trial as an expert clinical social worker with an emphasis on sexually abused children. During the course of treatment, J. told Alexander that defendant had touched her and pointed to her vagina and buttocks. Alexander testified J.'s conduct was consistent with that of a child who had been sexually abused because J. "expresses fear and anger toward the perpetrator" and demonstrates some sexualized behavior.

Defendant offered evidence at trial which tended to show as follows: On 16 December 1995 defendant did not see Burnett or J. until they arrived at the store around noon. After returning home, Burnett began arguing with defendant about the whereabouts of her boyfriend, Thomas Rice (Rice). Defendant told Burnett he did not know where Rice was. Defendant then went into the kitchen to cook dinner. According to defendant, he saw J. in the kitchen and told her to get out because grease was popping on the stove. Defendant left food in the kitchen for the others and took his meal into the dining room. The police arrived approximately thirty minutes after defendant finished his meal. Defendant testified that he was not aware Burnett had called the police until he met them on his way out the door. Defendant denied having ever touched J. in an inappropriate fashion.

Defendant also introduced the testimony of his daughter, Doralena Hayes (Hayes). Hayes testified that she arrived at defendant's residence after the alleged incident in the kitchen and heard Burnett and defendant arguing. Burnett told Hayes that defendant had touched J. When Hayes asked J. about the accusation, J. told her that Burnett had told J. to say that because Burnett was upset that Rice had not come home the previous night.

At the conclusion of trial, the jury found defendant guilty of first-degree rape, first-degree sexual offense, and taking indecent liberties with a minor. Defendant appealed.

On appeal to the Court of Appeals, defendant argued that the trial court improperly admitted hearsay testimony into evidence in violation of defendant's right to confront witnesses under the Sixth Amendment Confrontation Clause of the United States Constitution. See Hinnant, 131 N.C.App. at 594,

508 S.E.2d at 539. Defendant asserted that the trial court, in order to admit the proffered hearsay evidence, was required to make specific findings of fact concerning the trustworthiness and probative value of J.'s statements. Id. Defendant also argued that the trial court erred in denying his motion to dismiss the charge of first-degree rape at the close of the state's evidence. Id. at 596, 508 S.E.2d at 540. Alternatively, defendant argued that if appellate review of the sufficiency of the evidence had been waived, and the trial court's denial of defendant's motion to dismiss did not constitute plain error, the court should consider whether defendant's trial counsel rendered ineffective assistance by failing to file a motion to dismiss at the close of all the evidence. Id.

The Court of Appeals found no error in the trial court's admission of the hearsay testimony. Specifically, the Court of Appeals held that the challenged statements fell...