State v. Blankenship, 259 N.C. App. 102 (2018)

No Error in Part; Reversed and Remanded in Part

No reversible error in admitting hearsay statements

  • Facts: Defendant was convicted of rape of a child by an adult offender, taking indecent liberties with a child, and sexual offense with a child by an adult offender. He appealed on various issues, one of which challenges the admission of the child victim’s hearsay statements.
  • The Child’s Hearsay Statements: The state filed an opposed motion to admit the child victim’s hearsay statements through the other exceptions clauses of Rules of Evidence 803 and 804. The parties stipulated to the child’s unavailability due to lack of memory for the purposes of the hearsay exceptions. The child was picked up from defendant’s home by her grandparents. As she was being placed in her car seat, she stated to her grandparents “Daddy put his weiner on my coochie,” and when asked what a coochie was, she pointed to her vagina. The child was acting normally when she made the statement, and her grandmother was not concerned about the child’s mental or physical condition when she picked her up from the home. The court determined the statements were admissible as a present sense impression, excited utterance, and a residential exception. Rules 803(1), (2) and 804(b)(5). The child was taken to the emergency department, where she made a similar statement to the nurse and added “nothing hurt.” Those statements were admitted as statements made for the purpose of medical diagnosis or treatment. Rule 803(4). The child again made a similar statement and stated “I bleed. I have blood” to a victim advocate/forensic interviewer who interviewed her 12 days later. That statement was admitted under the residual exception in Rule 804(b)(5). Approximately one month later, the child made similar statements to a relative whenever the relative changed her diaper. These statement were admitted as a present sense impression and statement of then existing mental, emotional, or physical condition and the residual exception. Rules 803(1), (3) and 804(b)(5).
  • Standard of Review: The appellate court reviews de novo the trial court’s determination as to whether an out-of-court statement constitutes hearsay. The statement’s admission under any hearsay exception other than the residual exception is reviewed for plain error if no objection was made at trial and for prejudicial error if an objection was made at trial. Admission under the residual exception is reviewed for an abuse of discretion.
  • Exited Utterance (Rule 803(2)) are statements related to a startling event or condition made when the declarant was under the stress of the excitement caused by the event or condition and must be spontaneous. Although the statement was spontaneous, there was no evidence that showed the declarant child was under stress when she made the statement. Instead, she was described as “normal” and “happy” when she made the statements. The court erred in admitting the statements.
  • Present Sense Impression (Rule 803(1)) is a statement describing an event or condition made while the declarant was perceiving the event or condition or immediately thereafter. Immediately thereafter is not defined by a rigid rule regarding the amount of time that has passed. There was no evidence of exactly when the sexual misconduct occurred but instead the state alleged the acts occurred during the month (versus day the child was picked up and made the statement). Without evidence of the time of the event, the court erred in admitting the statement as a present sense impression.
  • Statement of Purpose of Medical Diagnosis or Treatment (Rule 803(4)) involves a two-part inquiry: (1) were the statements made for the purpose of medical diagnosis and treatment and (2) were they reasonably pertinent to diagnosis or treatment. When determining the declarant’s intent in making the statements, the trial court must consider all the objective circumstances surrounding those statements  State v. Hinnant, 351 N.C. 277 (2000). Given the child’s young age, it is a close call as to her intent. Rather than address whether there was error in admitting the statement, the defendant did not show prejudicial, reversible error given the proper admission of substantially identical statements under the residual hearsay exception.
  • Residual Exception (Rule 804(b)(5)) allows for hearsay and requires a six-part test: “(1) has proper notice been given; (2) is the hearsay covered by any of the exceptions listed in Rule 804(b)(1)-(4); (3) is the hearsay statement trustworthy; (4)is the statement material; (5) is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts; and (6) will the interests of justice be best served by admission.” State v. Triplett, 316 N.C. 1, 9 (1986). The trial court erred in failing to include the factors (2) (whether the statement was admissible under another exception). When determining trustworthiness (the 3rd factor), the court should consider four factors: “(1) the declarant’s personal knowledge of the underlying event, (2) the declarant’s motivation to speak the truth; (3) whether the declarant recanted; and (4) the reason, within the meaning of Rule 804(a), for the declarant’s unavailability.” State v. Nichols, 321 N.C. 616, 624 (1988). Although the court concluded that statement possessed an equivalent circumstantial guarantee of trustworthiness, it failed to include any of the four findings. When the trial court fails to make the proper findings regarding the statement’s trustworthiness, the appellate court “can ‘review the record and make our own determination.’ ” State v. Valentine, 357 N.C. 512, 518 (2003). After considering the four factors, the appellate court concluded the statements do have a sufficient guarantee of trustworthiness. There was no abuse of discretion in admitting the statements. 
Criminal Cases with Application to Child Welfare
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