Opinion
No. COA02-1109
Filed 17 June 2003 This case not for publication
Appeal by respondent from order entered 11 December 2001 by Judge Bradley D. Letts, District Court, Haywood County. Heard in the Court of Appeals 22 April 2003.
David Childers for Respondent. Ira L. Dove for Petitioner.
Haywood County Nos. 01-J-20, 01-J-21.
Respondent, the mother of two minor children, (son and daughter), appeals from the trial court's award of custody to the maternal grandmother and stepfather based on evidence showing that respondent allowed her minor children to be sexually abused. Respondent argues that the trial court erred by (I) allowing incompetent testimony by her eight-year-old son; (II) allowing inadmissible hearsay evidence; and (III) denying her motion to dismiss the petition. We uphold the trial court's decision.
Respondent first argues that the trial court erred by allowing testimony from her son because he was an incompetent witness.
"The general rule is that every person is competent to be a witness unless the trial court determines that he or she is disqualified under the Rules of Evidence." In re Clapp, 137 N.C. App. 14, 19, 526 S.E.2d 689, 694 (2000). Under our rules of evidence, "a person is disqualified to testify as a witness when the court determines that he is . . . (1) incapable of expressing himself concerning the matter as to be understood . . . or (2) incapable of understanding the duty of a witness to tell the truth." N.C. Gen. Stat. § 8C-1, Rule 601(b) (2001). "The competency of a witness is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness. Absent a showing that the ruling as to competency could not have been the result of a reasoned decision, the ruling must stand on appeal." State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426 (1987).
In this case, the son (i) accurately testified as to his first and last name; (ii) indicated where he lived by providing the address and a description of the area; (iii) accurately testified as to the first and last names of the people with whom he lived; (iv) provided the name of his school and grade level; (v) demonstrated he knew the difference between the truth and a lie by indicating whether or not the shirt colors of different people were the colors the attorney stated them to be; (vi) testified that he understood he had to tell the truth in court; and (vii) testified that his grandparents explained to him what the truth was. Based upon this testimony, the trial court found the son was competent to testify. After his testimony, respondent moved to strike his testimony because she contended his unduly influenced testimony indicated he did not understand the duty to the truth and did not understand the difference between the truth and a lie.
Respondent contends the grandparent's undue influence on her son was shown by his testimony that his grandparents (1) explained to him what the truth was and that he believed them if they told him something and (2) told him that he "had been molested, but I didn't believe them . . . And then I came to remember that I had been molested a couple of months later . . . ."
In denying the motion to strike, the trial court concluded any evidence of undue influence implicated credibility, not competency. We agree. After a trial court deems a witness as competent to testify, matters regarding whether the witness lied or was unduly influenced are traditionally resolved as part of the trier of fact's credibility assessment of the witness. Furthermore, "absent a showing that the ruling as to competency could not have been the result of a reasoned decision, the ruling must stand on appeal." Id. Accordingly, we uphold the trial court's finding that the son was competent to testify in this matter.
Respondent next contends the trial court erroneously allowed inadmissible hearsay testimony from Elizabeth Tulou, Dr. Cynthia Brown, Beth Osbahr, Dr. Janice Wright, Stephanie Hoadley and Adrian Cooper regarding the children's description of sexual abuse. The State contends the hearsay was admissible pursuant to N.C. Gen. Stat. § 8C-1, Rules 803(4) and 803(24).
We note at the outset that the trial court's findings of fact and conclusions of law show that the trial court did not include any evidence obtained from Dr. Wright in those findings or conclusions. Moreover, whereas Findings of Fact 13 and 24 are based on testimony from Ms. Hoadley and Ms. Cooper regarding statements about sexual abuse made by the son, the record indicates that their statements were corrobative of the son's testimony. Likewise, we hold that the statements of Ms. Osbahr under Finding of Fact 17 were corrobative of the son's testimony. See State v. Lloyd, 354 N.C. 76, 103-04, 552 S.E.2d 596, 616-17 (2001) (stating a prior consistent statement is admissible for corroborative purposes).
Respondent also contends that the expert opinions of Dr. Brown, a pediatrician, and Ms. Tulou, a clinical psychologist, were based on inadmissible hearsay. We disagree.
The admissibility of an expert opinion based on an out-of-court communication is governed by Rule 703 which provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
N.C. Gen. Stat. § 8C-1, Rule 703 (2001). In State v. Jones, 322 N.C. 406, 368 S.E.2d 844 (1988), our Supreme Court affirmed that this rule permits an expert witness to rely on an out-of-court communication as a basis for an opinion and to relate the content of that communication to the jury. The Court further noted that Rule 703 permits an expert witness to base an opinion on the out-of-court opinion of an expert. Thus, the Court held that "under Rule 703 . . . a testifying expert can reasonably rely on the opinion of an out-of-court expert and can testify to the content of that opinion." Jones, 322 N.C. at 410-11, 368 S.E.2d at 847. Furthermore, the Court held that "testimony as to matters offered to show the basis for a physician's opinion and not for the truth of the matters testified to is not hearsay." Id.
In Finding of Fact No. 15, the trial court described its findings derived from the testimony of Ms. Tulou as follows:
That as to [the daughter], Ms. Tulou was asked to perform a Child Medical Examination on the child. As a basis for completion of the Child Medical Examination, Ms. Tulou took statements from Ms. Hoadley, Mr. and Mrs. Lopez, interviewed [the daughter], reviewed parent/teacher evaluations, as well as inventories regarding the child. There were two visits with [the daughter] on January 8, 2001 and January 11, 2001. Ms. Tulou indicated she inquired of [the daughter] whether or not she knew why she was there. [The daughter] indicated her mother could no longer take care of them. [The daughter] spoke of sexual experiences as well as sexual behavior by men, those including [J.C. and B.T.]. Furthermore, Ms. Tulou reviewed the medical records of [the daughter]. Based on all the information, Ms. Tulou was of the opinion that [the daughter] was sexually abused.
In our opinion, this finding of fact does not contain inadmissible hearsay, but rather states the sources relied upon by Ms. Tulou in forming her opinion as to the daughter's condition.
As to the testimony of Dr. Brown, we note that Finding of Fact 22 references the hearsay statement derived from Dr. Brown's testimony:
22. That in discussing matters with [the daughter], [the daughter] indicated to Dr. Brown that she had witnessed her mother, [J.F.], and [B.T.] engaged in sex. When asked how she knew it was sex, she indicated they had no clothes on. When asked if there was any other inappropriate action, the daughter indicated that [B.T.] had touched in her in her privates which she defined as `pinching.'
N.C. Gen. Stat. § 8C-1, Rule 803(4) Statements for Purposes of Medical Diagnosis or Treatment states:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Our Supreme Court in State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000), held that "hearsay evidence [was] admissible under Rule 803(4) only when two inquiries are satisfied. First, the trial court must determine that the declarant intended to make the statements at issue in order to obtain medical diagnosis or treatment. The trial court may consider all objective circumstances of record in determining whether the declarant possessed the requisite intent. Second, the trial court must determine that the declarant's statements were reasonably pertinent to medical diagnosis or treatment." Hinnant, 351 N.C. at 289, 523 S.E.2d at 670-71. "Some factors to consider in determining whether a child had the requisite intent are whether an adult explained to the child the need for treatment and the importance of truthfulness; with whom and under what circumstances the declarant was speaking; the setting of the interview; and the nature of the questions." State v. Bates, 140 N.C. App. 743, 745, 538 S.E.2d 597, 599 (2000).
In this case, the children were interviewed and evaluated at the Graham Center Clinic on the second floor where there was a waiting room, an interview room and an examination room. The interview room was used for private conversations between doctors, family members, social workers and patients. On 23 February 2001, Dr. Brown examined [the daughter] who understood she was being seen for medical purposes. Dr. Brown described their interaction as follows: "When I explained that we would be talking and then I would be doing a checkup and that I would be interested in finding out about her and anything on her body or that — that might have a problem, she began to point to areas on her body and [sic] including her teeth as places that would need to check when I did the checkup." Thereafter, [the daughter] indicated she had been touched by her mother's male friends, had witnessed adults having sex and demonstrated what sex was with two anatomically correct male and female dolls. Based upon this information, Dr. Brown examined her teeth, checked her body for bruises and conducted a genital exam. Under these circumstances, any hearsay statements by Dr. Brown referencing the daughter's statements were admissible under Rule 803(4).
Finally, after reviewing the record on appeal, we conclude that respondent's remaining contentions are without merit. Accordingly, we uphold the trial court's judgment.
Affirmed.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).