State v. Lester, COA23-115, ___ N.C. App. ___ (Dec. 5, 2023)

In this Wake County case, defendant appealed his convictions for statutory rape, statutory sexual offense, and indecent liberties with a child, arguing the admission of hearsay cellphone records violated his rights under the Confrontation Clause of the Sixth Amendment. The Court of Appeals agreed, vacating the judgment and remanding for a new trial. 

In 2022, defendant came to trial for having sex with a thirteen-year-old girl during the summer of 2019. At trial, the State offered cellphone records showing calls between a number associated with defendant and a number associated with the victim as Exhibits #2 and #3. Defendant was subsequently convicted of all charges, and defendant appealed. The Court of Appeals issued an opinion on October 17, 2023, which was subsequently withdrawn and replaced by the current opinion. 

Considering defendant’s Sixth Amendment argument, the court quoted State v. Locklear, 363 N.C. 438 (2009), for the concept that the Confrontation Clause “bars admission of direct testimonial evidence, ‘unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant.’” Slip Op. at 7-8. When determining whether a defendant’s Confrontation Clause rights were violated, courts apply a three-part test: “(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and, (3) whether defendant had an opportunity to cross-examine the declarant.” Id. at 8. Here, “[t]he trial court’s findings answered the first and second factors . . . in the affirmative and the third factor in the negative,” meaning “the evidence should have been excluded.” Id. at 9. 

The court went on to explain why the admission of the two exhibits was improper under the residual exception in Rule of Evidence 803(24), noting that “[t]he primary purpose of the court-ordered production of and preparation of the data records retained and provided by Verizon was to prepare direct testimonial evidence for Defendant’s trial.” Id. at 13. Because defendant was “not given the prior opportunity or at trial to challenge or cross-examine officials from Verizon, who had purportedly accumulated this evidence . . . their admission as such violated Defendant’s rights under the Confrontation Clause.” Id. 

After establishing that admission of the exhibits was error, the court explained that the State could not meet the burden of showing the error was “harmless beyond a reasonable doubt” as required for constitutional errors. Id. at 14. As a result, the court vacated the judgment and remanded for a new trial.