State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011)

(1) In a child sexual assault case, the trial court did not err by declining to admit defense-proffered evidence offered under the hearsay exception for statements made purposes of medical diagnosis and treatment. The evidence was the victim’s statement to a social worker made during “play therapy” sessions. Nothing indicated that the victim understood that the sessions were for the purpose of providing medical diagnosis or treatment. They began more than two weeks after an initial examination and were conducted at a battered women’s shelter in a “very colorful” room filled with “board games, art supplies, Play-Doh, dolls, blocks, cars, [and] all [other types] of things for . . . children to engage in” rather than in a medical environment. Although the social worker emphasized that the victim should tell the truth, there was no evidence that she told her that the sessions served a medical purpose or that the victim understood that her statements might be used for such a purpose. (2) The trial court did not err by declining to admit the same statement as an excited utterance. Because the record contained no description of the victim’s behavior or mental state, the court could not discern whether she was excited, startled, or under the stress of excitement when the statement was made.