In re A.B.D
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-641 NORTH CAROLINA COURT OF APPEALS Filed: 19 November 2013 IN THE MATTER OF: A.B.D.1 Mecklenburg County No. 12 JB 439 Appeal by Juvenile from order entered 27 November 2012 2 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 24 October 2013. Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State. 1 Initials and pseudonyms are used in this opinion to protect the identity of the juvenile and other minors discussed herein. All names initially shown in quotation marks are pseudonyms. 2 An amended disposition order was filed by the juvenile court on 10 December 2012. The original order listed the offenses for which A.B.D. was adjudicated delinquent as Ind. Liberties Between Child. and Crime Against Nature. However, as discussed herein, the charge of indecent liberties between children was ultimately dismissed and the juvenile was actually found to have committed the offenses of crime against nature and first-degree sexual offense. The amended disposition order corrects this clerical error, but is otherwise identical to the order entered 27 November 2012. -2Anna S. Lucas for Juvenile. STEPHENS, Judge. Procedural History and Factual Background On 3 July 2012, the Mecklenburg County District Attorney s Office filed three petitions alleging that Juvenile A.B.D. ( Adam ) was delinquent for having committed the offenses of indecent offense, liberties and between crime against children, nature. first-degree On the same sexual date, the juvenile court entered an order for secure custody whereby Adam was placed in a detention facility. On 16 July 2012, the court released Adam from detention and placed him on house arrest. The matter came on for hearing in the juvenile Mecklenburg County on 27 November 2012. court in The evidence at the hearing tended to show the following: In May 2012, Adam, a thirteen-year-old eighth grader, lived with his Carolina. school grandmother and older brother in Charlotte, North Adam had a school record which included three in- suspensions and back to January 2007. disruptive behavior. four out-of-school suspensions dating He also had a history of aggressive and -3On the evening of 18 May 2012, the mother of five-year-old Tracey went into labor and was admitted to a local hospital. As a result, Tracey went home with her godmother, who was also Adam s aunt. There were six children, including Tracey and Adam, and several adults at the aunt s apartment that evening. During the evening, one of the adults, Sara, went to look for Tracey and Adam after noticing that they were not in the living room with the other children. Sara entered a bedroom where the lights were off and saw Adam in a closet lying on his stomach with his pants pulled down. Sara asked where Tracey was, and Adam lifted his body up to reveal Tracey lying face down beneath him with her pants down. When Adam lifted up, Sara was able to see Adam s penis and Tracey s bare bottom. At the adjudication hearing, Tracey testified that Adam took me in the closet and he pulled his pants down and my pants down and then he took his thing and put I poop at. testified that it hurt. The following exchange place: [The State:] And [Tracey], you say he stuck his thing in your thing? By your thing, what do you mean? [Tracey:] He was doing nasty things. [Adam s counsel:] I can t hear. Tracey then took -4THE COURT: You have to you have to turn around and tell me the answer that you were say that again. [Tracey:] He was doing something he was doing nasty. [The State:] And what what things on your body did he did it touch? [Tracey:] Rebecca The part that had poop in it. Horner, a forensic interviewer with Pat s Place Child Advocacy Center, testified about her interview with Tracey in June 2012. Horner brought a video recording of the interview to the hearing. Adam objected to admission of the recording on chain of custody grounds: [The State:] Did you bring a copy of the interview that you conducted with [Tracey] to court with you today? [Horner:] Yes. [The State:] possession? [Horner:]. Yes. [The State:] Honor? THE COURT: And do you have that in your May I approach the bench, Your Yes, sir. [Adam s counsel:] Your Honor, before Mr. Maslow puts that in, I m going to make an objection to chain of custody. I m making an objection based on chain of custody before (inaudible) puts it in. -5THE COURT: Right. Well, he hasn t actually offered it yet, so [Adam s counsel:] Okay, I'll wait. THE COURT: You can voir dire on it if you want to at the appropriate time. Go ahead. [The State:] At this time, I d like to introduce State s Exhibit 1 of the interview of [Tracey] be sworn [sic] at Pat s Place. THE COURT: All righty. Ms. [Adam s counsel:] Your Honor, I renew my objection chain of custody [sic]. It s the State s burden. I I have no idea what that is, who s had it. He noted that she did review it before today. But he s also noted that she no longer works at Pat s Place, and I don t see on the witness list anyone else from Pat s Place to talk about that video if it s been changed or altered any way [sic], how it was handled, and who may have handled it before court. At the conclusion of the voir dire, Adam s counsel renew[ed] my chain of custody objection[,] which the court overruled. court asked The State moved to introduce the recording, and the Horner several questions about the recording, including, How do I know that that video, that disk that you re looking at there is the video that you copied? Horner assured the court that she had reviewed the disk prior to the hearing. Adam s counsel again renewed her objection, which noted before admitting and playing the recording. the court -6At the close of the hearing, the juvenile court dismissed the charge of indecent liberties between children, but found that Adam committed the offenses of crime against nature and first-degree disposition sexual and Adam appeals. offense. placed Adam The on court probation ordered for a twelve Level 2 months. We affirm. Discussion Adam s sole argument on appeal is that the trial court erred in admitting the video recording of the interview between Horner and Tracey at Pat s Place. Specifically, Adam contends the recording was inadmissible hearsay. We conclude that Adam has failed to preserve his right to appellate review of this issue. As discussed supra, at the hearing Adam did not object to the recording on hearsay grounds.3 To the extent [an appellant] fail[s] to object to introduction . . . of the evidence he now contends was inadmissible, or objected on grounds other than those now argued on appeal, he has waived his right to appellate review other than for plain error. We reverse for plain error only in the most exceptional cases, and only when we are convinced that the error was either a 3 Adam did object to the social worker s testimony about what Tracey told her during the interview on the basis of hearsay, but he did not object to admission of the recording of the interview on that ground. -7fundamental one resulting in a miscarriage of justice or one that would have altered the [outcome of the case]. State v. Locklear, 363 N.C. 438, 449, 681 S.E.2d 293, 303 (2009) (citations and internal quotation marks omitted). Plain error review applies in juvenile delinquency adjudications, just as it does in criminal cases. See In re W.R., 363 N.C. 244, 247, 675 S.E.2d 342, 344 (2009). However, where an appellant does not specifically and distinctly allege . . . plain error, [he] has waived any appellate review. 208, 449 S.E.2d 402, 411 State v. Hamilton, 338 N.C. 193, (1994) (citing N.C.R. App. P. 10(c)(4)). Adam does not specifically and error in the admission of the recording. distinctly argue plain Although Adam has thus waived his right to appellate review of this issue, we elect in our discretion to review for plain error pursuant to Rule 2 of our Rules of Appellate Procedure. See N.C.R. App. P. 2 (permitting appellate courts to excuse a party s default and reach the merits of an appeal when necessary to prevent recording contained inadmissible manifest injustice to a party ). Adam argues that the hearsay without which there was no evidence of penetration, an essential element of first-degree sexual offense. See State v. -8Huntley, 104 N.C. App. 732, 411 S.E.2d 155 (1991), cert. denied, 331 N.C. juvenile 288, 417 S.E.2d court did not recording. 258 specify (1992). the As basis Adam for notes, the admitting the On appeal, he presents arguments that the recording did not fall into the hearsay exception specified in Rule of Evidence 803(4) as a statement made for purposes of medical diagnosis or treatment. See N.C. Gen. Stat. ยง 8C-1, Rule 803(4) (2011). We need not address Adam s contention on this point, however, because the recording falls squarely into hearsay exception as a prior consistent statement. Rule 801 of the North Carolina Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Although hearsay is inadmissible except [as] provided by statute or the Rules of Evidence, an exception to this general rule allows admission of a prior consistent statement. Under this exception, a witness [s] prior consistent statements may be admitted to corroborate the witness [s] sworn trial testimony. . . . . . . In order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness s testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony. . . . However, the witness s prior statements as another -9to facts not referred to in his trial testimony and not tending to add weight or credibility to it are not admissible as corroborative evidence. . . . In other words, where testimony which is offered to corroborate . . . does so substantially, it is not rendered incompetent by the fact that there is some variation. Such variations affect only the weight of the evidence which is for the jury to determine. Accordingly, prior consistent statements are admissible even though they contain new or additional information so long as the narration of events is substantially similar to the witness [s] incourt testimony. A trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, non[-]hearsay purposes. State v. Lloyd, 354 N.C. 76, 103-04, 552 S.E.2d 596, 616-17 (2001) (citations, internal quotation marks, and some brackets omitted). We are satisfied from our review of the recording that Tracey s account of what happened in the closet with Adam is more than substantially similar to her in-court testimony; it is virtually identical. The recording does not add facts not referred trial to in h[er] testimony[,] but rather, simply clarifies her testimony in more explicit language than Tracey used while on the stand, so as to add weight or credibility to [her] testimony. Id. In the recording, Tracey gives the same account of what occurred in the closet except that she states -10that Adam put his thing in the private part where I poop at in the hole and later stated that Adam was hiding his thing inside of recording the thing was thus that makes admissible the for poop come corroborative out. The non-hearsay purposes. Further, we note Tracey s own testimony at trial provided evidence of penetration, rendering any error in the admission of the recording harmless. At the hearing, Tracey testified that Adam took his thing and put I poop at and that it hurt. Later, when asked you say he stuck his thing in your thing? By your or thing, what do you mean, Tracey did not correct contradict the State s understanding of her earlier testimony, but rather responded that Adam had done nasty things with her part that evidence had upon poop which in it. the This juvenile testimony court could was find competent beyond a reasonable doubt that Adam penetrated Tracey with his penis. Adam s argument is overruled, and accordingly, the juvenile court s order adjudicating him delinquent is AFFIRMED. Judges GEER and ERVIN concur. Report per Rule 30(e).
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