State v. Rogers

• Citation: 428 S.E.2d 220,109 N.C.App. 491
• Decision Date: 06 April 1993
• Docket Number: No. 9115SC1160,9115SC1160
• Parties: STATE of North Carolina v. Jerry Ronald ROGERS.
• Court: Court of Appeal of North Carolina (US)

Page 220

428 S.E.2d 220

109 N.C.App. 491

STATE of North Carolina v. Jerry Ronald ROGERS.

No. 9115SC1160.

Court of Appeals of North Carolina.

April 6, 1993.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. James C. Gulick, Raleigh, for the State.

Public Defender James E. Williams, Jr. by Asst. Public Defender M. Patricia DeVine, Carrboro, for defendant-appellant.

GREENE, Judge.

Defendant appeals from a judgment entered 13 May 1991, which judgment is based on jury verdicts convicting defendant of taking indecent liberties with a child, N.C.G.S. § 14-202.1 (1986), a Class H felony with a maximum term of ten years and a presumptive term of three years, and of being an habitual felon, N.C.G.S. § 14-7.1 (1986), a Class C felony with a maximum term of fifty years or life and a presumptive term of fifteen years.

Defendant was indicted on charges of first-degree sexual offense, first-degree rape, being an habitual felon, and taking indecent liberties with a child. These charges stemmed from defendant's alleged encounter with five-year-old A.E., who at the time was living with her mother at the same homeless shelter as defendant in Chapel Hill, North Carolina. The cases were consolidated for trial.

On 21 April 1991, upon motion by the State, the trial court conducted a pre-trial hearing to determine the competency of A.E. to be a courtroom witness. The court, after hearing, made the following pertinent findings:

2. From the testimony of [A.E.], the Court finds as a fact that she ... has seen a Bible but does not know what it is used for. That she does not know the difference between right and wrong. That she does not know what a lie is. And that she does not know what it means to tell the truth. But that she "always tells the truth." That she does not know what it means to testify. That she told her mother what happened to her, but she forgot what she told her mother. That she did not now remember any of what happened and that she does not know what happened to her. She does not remember what she told others about what happened to her and that she forgets what she told them. That she knows [defendant], and that she told her mother that [defendant] hurt her but not that any other people hurt her. That she likes to talk and that she is not scared.

3. The Court finds as a fact that [A.E.] is incapable of understanding and appreciating the meaning of an oath or affirmation and the duty of a witness in court with regard to testifying under oath or affirmation. That she is incapable of expressing herself in court concerning these matters as to be understood and that she is incapable of understanding the duty of a witness in court to tell the truth. That she is unable to articulate and express herself in court and has a lack of memory of the subject matter and that she is not competent to be a witness in these proceedings (NC GS 8C-1, Rule 601B, and 603) and is also unavailable (NC GS 8C-1, Rule 804).

....

That in this order ... the Court notes that the special meaning of "competency" with regard to Rule 601[ (b) ] and Rule 603 relates to the qualifications of a witness to testify at trial and not the ability of the declarant to intelligently and truthfully relate personal information. The Court's ruling ... in no way addresses the qualifications of the child as a declarant out of court to relate truthfully personal information and belief.

The court ordered that A.E. could not testify at trial.

At trial, the State presented the testimony of A.E.'s mother, who stated that on 4 September 1990, at approximately 4:00 p.m., she and A.E. and three men were at Sutton's drugstore in Chapel Hill when defendant arrived. A.E. and her mother had known defendant since they began staying at the homeless shelter approximately one week earlier. Defendant sat down and talked for a few minutes, and when A.E. said that she had to go to the bathroom, defendant walked with her. A.E.'s mother testified that when A.E. went into the bathroom, defendant was in the hallway. She assumed when she looked again and did not see defendant that he was in the men's room. After five or ten minutes, A.E.'s mother went to the bathroom area, knocked on the bathroom door, and asked A.E. if she was all right. A.E. "said she was fine." When A.E. came back to the table, she was "fidgety and jumpy," and said she was "okay." Her demeanor was slightly different. Approximately five minutes after A.E. returned to the table, defendant returned and then left the drugstore.

That night, A.E. acted strange and was withdrawn, would not talk, and cried a lot. She did not want to take a bath, had nightmares, and "just latched onto" her mother. The next day, A.E. was still acting strange and withdrawn, and her mother kept asking her what was wrong. Finally, A.E. said that "[defendant] hurt" her. When asked how she had been hurt, A.E. said that [defendant] "touched her chest." According to A.E.'s mother, A.E. then "pointed down between her legs ... then started to say something about a ding-a-ling." At that point, A.E.'s mother "cut [A.E.] off and told her to hold it," that she was going to get a police officer. A.E.'s mother encountered officer Melvin Smith on the street and told him that she wanted her daughter's comments investigated. Officer Smith called the crisis unit. A.E. and her mother were taken to the police station, where A.E. was questioned and then taken to the hospital. The trial court, over defendant's objection, ruled the foregoing testimony regarding A.E.'s statements to her mother admissible pursuant to North Carolina Rule of Evidence 803(4), the hearsay exception for statements made for the purpose of medical diagnosis or treatment.

A.E.'s mother also testified that, prior to the alleged incident, A.E. had had nightmares and was afraid of the dark. She testified that both A.E. and A.E.'s brother had been physically and sexually abused by their father. When they began living at the shelter, the entire family was being treated by a therapist for traumas occurring during the past year. On the night of the alleged incident, A.E.'s mother did not notice any bleeding or injuries, but A.E. told her that "it hurt to go pee."

Other evidence presented by the State included the testimony of pediatrician Desmond Runyan, supervisor of the child abuse clinic at the University of North Carolina Hospital and an expert in the area of pediatrics and child abuse. Dr. Runyan testified that he examined A.E. on the afternoon of 5 September 1990, and that when he asked the child what had happened, she said that she "had been touched by [defendant]," pointing to her genital area and her chest. A.E. also demonstrated sexual intercourse with anatomically correct dolls, which surprised Dr. Runyan because no one had ever indicated to him that intercourse had occurred. A.E. told Dr. Runyan that her "private part" had been penetrated by defendant's penis and that she had been bleeding; however, his physical examination revealed no evidence of trauma, bruising, or abrasion. The trial court, over defendant's objection, admitted the testimony of Dr. Runyan regarding the statements made to him by A.E. pursuant to Rule 803(4). Dr. Runyan testified that in his opinion, A.E. had been sexually abused.

Marjorie Dekeersgieter testified that she had "heard what had happened" to A.E. and had approached A.E.'s mother, whom she did not know, to ask if she could keep A.E. two afternoons a week to play with her young children. On one of these visits, A.E. volunteered to Dekeersgieter that "she had been hurt," mentioning defendant's name and pointing to her vaginal area. The trial court, over defendant's objection, admitted this testimony regarding A.E.'s statements pursuant to evidence Rule 803(2), the hearsay exception for excited utterances.

Jane Tillotson, an expert in the field of clinical and child psychology, testified that she began to work with A.E. on 7 November 1990, meeting once per week for one hour. On 19 December 1990, A.E. mentioned defendant for the first time, telling Tillotson that "[defendant] hurt me. He put his ding-dong in my private parts." A.E. said that only defendant and her father ever hurt her that way. The court admitted this testimony pursuant to Rule 803(4). Tillotson stated that A.E.'s family "has lived in a chronic chaotic environment." In Tillotson's opinion, A.E. had been sexually abused.

At the close of the State's evidence, the trial court denied defendant's motion to dismiss the charges. Defendant presented evidence, in relevant part, which established that A.E.'s mother had given inconsistent accounts of the alleged 4 September 1990 incident to the Department of Social Services. A.E.'s mother told one social worker that on the day of the alleged incident, she herself had to use the bathroom at the drugstore and asked a friend to watch A.E. When she returned, A.E. was gone and the friend said that defendant had walked off with her. Defendant's evidence also established that when she was four years old, A.E. spent seven months in foster care due to her brother's physically abusive behavior toward her, and that A.E. at that time manifested symptoms of being sexually abused by her father, including the insertion of Barbie dolls into her vagina and frequent masturbation.

At the close of all the evidence, the trial court granted defendant's motion for a directed verdict on the charge of first-degree sexual offense, but denied defendant's motion to dismiss all remaining charges. The jury found defendant not guilty of first-degree rape, guilty of taking indecent liberties with a child, and guilty of being an habitual felon. The trial court consolidated these offenses for judgment and sentenced defendant to a term of eighteen years. Defendant appeals.

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The issues presented are whether the trial court (I) properly admitted evidence of out-of-court statements made by A.E., whom the trial court declared incompetent to testify, to...