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Criminal Practice – Evidence – Child Witness – Remote Testimony – Mid-Trial Motion – No Prejudice

State v. Phachoumphone (Lawyers Weekly No. 011-049-18, 28 pp.) (Rick Elmore, J.) Appealed from Cleveland County Superior Court (Eric Levinson, J.) N.C. App.

Holding: Even though the trial court did not follow G.S. § 15A-1225.1 when it granted the state’s mid-trial motion to allow a child witness to testify remotely, defendant has shown no prejudice. By the time the state made the motion, the court had already seen the state’s attempt to question the child in open court for two and a half hours, noting the child’s fear and her turning away from defendant; therefore, the trial court’s oral findings and conclusions were supported by competent evidence.

We find no prejudicial error in defendant’s convictions of first-degree sex offense with a child and taking indecent liberties with a child.

Defendant objects only to the procedure followed in authorizing the child’s remote testimony; he does not challenge the trial court’s substantive ruling in any respect.

Defendant was afforded an opportunity to present evidence on the state’s motion. To the extent the procedure employed may have prohibited defendant from examining a state witness on the matter (there wasn’t one), defendant has failed to show how this alleged procedural error prejudiced him.

The transcript indicates that “Tara” demonstrated a fear of defendant and was unable to communicate effectively while testifying in front of him, and the trial court determined that her prior in-court testimony established a “record . . . very clear” that this was the case. Under these particular circumstances, defendant has failed to demonstrate prejudicial error in the hearing procedure employed by the trial court in authorizing the use of Tara’s remote testimony.

Although the trial court failed to issue a written order, the record shows that it thoughtfully considered G.S. § 15A-1225.1(d)’s enumerations, and defendant does not allege any prejudice resulting from the trial court’s consideration or application of those enumerations in its ruling. We overrule defendant’s challenge.

No prejudicial error.

 

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