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Criminal Practice – Sexual Offense – Attempt – Evidence – Hearsay — Satellite-Based Monitoring

State v. Carter (Lawyers Weekly No. 11-07-1113, 28 pp.) (Sam Ervin IV, J.) Appealed from Iredell County Superior Court. (W. David Lee, J.) N.C. App. Click here for the full-text opinion.

Holding: Where the complainant said on at least one occasion that defendant’s penis penetrated her anus, and where a sexual assault nurse examiner testified that the complainant’s anal fissure could have resulted from trauma to the anal area, there was sufficient evidence to support a finding of anal penetration.

We find no error as to defendant’s conviction of first-degree sexual offense in file number 08 CrS 57285. However, the trial court’s order of lifetime satellite-based monitoring (SBM) in that case is vacated, and the case is remanded for further proceedings. Defendant is entitled to a new trial on the charge of first-degree sexual offense in file number 08CrS 57286.

Where social worker Erica Stivenson testified that she was not qualified to render a medical diagnosis and never made any specific medical diagnosis based on the complainant’s behavior, Ms. Stivenson’s characterizations of the complainant’s behavior (“overly dramatic”, “manipulative”, and exhibiting “attention-seeking behavior”) did not relate to an expert opinion which Ms. Stivenson was qualified to deliver. The trial court correctly determined that Ms. Stivenson was not entitled to offer any opinion as to medical treatment and correctly excluded Ms. Stivenson’s characterizations of the complainant’s behavior.

During a “play therapy” session, the complainant told Ms. Stivenson that she missed defendant and wanted him to come home so they could be a family again. Ms. Stivenson told the complainant that, if defendant had done the things the complainant accused him of he wouldn’t be coming home. The complainant replied, “Well, I know he wouldn’t do it. I know he’s coming home.” The trial court admitted the complainant’s statement only for corroborative purposes and not for substantive purposes.

Contrary to defendant’s argument, the complainant’s statement was not admissible as one made for the purpose of obtaining medical diagnosis or treatment. The “play therapy” sessions began more than two weeks after the complainant’s initial examination by the sexual assault nurse examiner. Although Ms. Stivenson emphasized that it was important for the complainant to tell the truth, the record does not indicate that she ever told the complainant that the “play therapy” sessions served a medical purpose or that the complainant understood that any of her statements might be used for diagnostic or treatment-related purposes.

In addition, the record does not show that the statement in question had any relevance to the provision of medical diagnosis or treatment, since Ms. Stivenson admitted that she was not qualified to engage in such activities. As a result, the trial court did not err by refusing to admit the complainant’s statement pursuant to N.C. R. Evid. 803(4).

The statement was also not admissible as an excited utterance. The record contains no description of the complainant’s behavior or mental state at the time of her conversation with Ms. Stivenson. For that reason, we cannot discern whether the complainant was excited, startled, or under the stress of excitement at the relevant time.

Neither of defendant’s efforts to establish the admissibility of the complainant’s statement for substantive purposes has merit.

As to file no. 08 CrS 57286, the evidence concerning the issue of penetration was in conflict. Although certain portions of the complainant’s testimony tended to show that anal penetration had occurred, her statements that defendant put his penis “on” or “between my butt cheeks” or that he “pressed against” her anus with his penis support an inference to the contrary.

The nurse examiner’s testimony indicated that the complainant’s anal fissure could have resulted from attempted, as well as completed, penetration.  As a result, a jury could rationally have found defendant guilty of attempted first-degree sexual offense in File No. 08 CrS 57286. Moreover, given the sharp conflict in the evidence relating to the issue of defendant’s guilt, the importance of allowing the jury to consider all relevant issues prior to rendering a verdict, and the absence of any indication that defendant opposed submission of an attempt issue, we conclude that the trial court’s failure to instruct the jury on attempted first-degree sexual offense constituted plain error, and that defendant is entitled to a new trial in File No. 08 CrS 57286.

Where defendant failed to note his appeal of the trial court’s SBM order in writing, we dismiss defendant’s appeal. However, we exercise our discretion to treat defendant’s appeal as a petition for a writ of certiorari. We issue the writ and consider defendant’s challenges to the SBM order on the merits.

First-degree sexual offense pursuant to G.S. § 14-27.4(a)(1) does not qualify as an aggravated offense. As a result, the trial court erred by concluding that defendant was subject to lifetime SBM by virtue of having been convicted of an “aggravated offense.” We reverse the trial court’s order compelling defendant to enroll in lifetime SBM and remand this case to the trial court for a proper risk assessment and a new SBM hearing.

New trial in part, no error in part, reversed and remanded in part.

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