State v. Aguallo

350 S.E.2d 76, 318 N.C. 590, 1986 N.C. LEXIS 2741
CourtSupreme Court of North Carolina
DecidedNovember 18, 1986
Docket188A86
StatusPublished
Cited by89 cases

This text of 350 S.E.2d 76 (State v. Aguallo) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aguallo, 350 S.E.2d 76, 318 N.C. 590, 1986 N.C. LEXIS 2741 (N.C. 1986).

Opinions

MEYER, Justice.

This case presents two significant questions with respect to the testimony of a physician who examined a child rape victim. First, defendant argues that the trial court erred in allowing the examining physician to testify as to statements made to her by the victim. Second, defendant argues that the trial court erred in allowing the examining physician to testify as to whether the child victim was “believable.”

We find that the child’s statements to the physician were for the purpose of medical diagnosis and treatment and were thus admissible under Rule 803(4) of the North Carolina Rules of Evidence (N.C.G.S. § 8C-1, Rule 803(4) (Cum. Supp. 1985)). Because we also find that the physician’s opinion testimony as to the believability of the child should have been excluded under Rules 608 and 405(a) of the North Carolina Rules of Evidence (N.C.G.S. § 8C-1, Rules 608 and 405(a) (Cum. Supp. 1985)), we order a new trial.

We decline to address the defendant’s additional assignments of error, which raise questions not likely to recur at a new trial.

On 9 September 1985, the defendant was indicted on the charge of first-degree rape. N.C.G.S. § 14-27.2 (Cum. Supp. 1985). The indictment alleged that sometime between 20 November 1984 and 17 December 1984,1 the defendant unlawfully, willfully, and feloniously engaged in vaginal intercourse with the victim, a nine-year-old child.

The State’s evidence tended to show that between August and November 1984, the defendant lived with Mary, the victim’s mother, and her two daughters, one of whom was the victim. In [592]*592November, the defendant and Mary were married. Mary’s two daughters continued to live in the same house as the defendant and Mary Aguallo.

One night in December 1984, Mary Aguallo awoke from her sleep and went into the living room of the apartment she shared with defendant and her two daughters. She saw the victim lying in front of the stool in front of the couch, and the defendant was on his knees in front of the victim, with his pants down but his underwear on. Mary told the victim to go into her room and later that evening arranged to have her mother, Betty Blackwell, take the children to her home. Mary stayed with the defendant at the apartment that evening, and the next day the defendant left by airplane for California.

On or about 20 December 1984, Mary took the victim to Dr. John Thomas’ office and requested that the doctor give the child a physical examination. However, Mary did not tell the doctor about the incident with her husband or request that Dr. Thomas examine the victim’s vaginal area.

In January 1985, leaving the victim with Betty Blackwell, Mary went to California to see the defendant. She stayed with the defendant in California for six months, until July 1985, when the defendant was arrested. She testified that she wanted to return to North Carolina prior to July 1985, but that she had no money and that the defendant managed to keep the checks that she earned while working for the defendant’s family.

The nine-year-old victim testified that at some time, she could not remember the date, the defendant had laid her on the stool in front of the couch and “put his hot dog into my private place.” She further testified that she told some of her school classmates about the incident with the defendant. According to the victim, one of her classmates then related the incident in a letter that was found in the school playground.

Betty Blackwell, the victim’s grandmother, testified that on the evening that Mary sent the children to her house in July 1984, she examined the victim with a flashlight and noticed that her “privacy was very inflamed, red, inflamed.”

Ms. Amy Collins of the Davie County Department of Social Services testified that sometime in June 1985 the principal of [593]*593Pinebrook Elementary School informed her of a report of possible child sexual abuse. Ms. Collins interviewed the victim. In July of 1985 she took the victim to the office of Dr. Sarah Sinai, a pediatrician at the Bowman-Gray School of Medicine in Winston-Salem. Ms. Collins also arranged therapy treatment for the victim at the Davie County Mental Health Clinic.

Dr. Sarah Sinai testified that she first saw the victim on 10 July 1985 and that the child was brought in on the Child Medical Examiner Program as an alleged sexual abuse case. Over objection, she testified as to what the victim told her prior to the physical examination. This testimony was consistent with the victim’s testimony and implicated the defendant as the perpetrator of the offense. Over objection, Dr. Sinai also testified that the victim was a believable child.

The defendant testified that on the night in question, he was watching television with the children. He sat down on the couch and unbuttoned his pants and put his zipper halfway down. When he got up to change the channel, his pants came down as he was getting off the couch. The defendant had told the victim to go to her bedroom at the time her mother entered the room.

Dr. John Thomas testified for the defendant. He had seen the victim at his office on 20 December 1984. At the time, the victim was not anxious nor were any statements made to him to raise any suspicions that the child had been abused.

The jury found the defendant guilty of first-degree rape.

I.

We first address the defendant’s contention that the trial court erred in allowing Dr. Sinai to testify as to statements made to her by the victim. Because the record discloses no instruction limiting the admissibility of this evidence for corroborative purposes, we must determine whether Dr. Sinai’s testimony was admissible as substantive evidence. The defendant argues that the statements are hearsay and not otherwise admissible under the North Carolina Rules of Evidence, Rule 803(4), exception applicable to statements made for the purpose of medical diagnosis or treatment. We disagree.

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in [594]*594evidence to prove the truth of the matter asserted. N.C. R. Evid. 801(c). Hearsay is not admissible except as provided by statute or the Rules of Evidence. N.C. R. Evid. 802.

On direct examination, Dr. Sarah Sinai testified that the victim came to her office on 10 July 1985. She was brought in by her grandmother and Amy Collins, a protective services worker. Dr. Sinai determined that the victim was brought in on the Child Medical Examiner Program.

Before conducting a physical examination, Dr. Sinai spoke with the victim. Dr. Sinai testified that as part of a set routine, she spoke with the children prior to an examination.

Over objection, Dr. Sinai was allowed to testify as to the conversation she had with the victim. She offered the following testimony as to what the victim told her:

[B]efore Christmastime her stepfather, whose name she said was Ernie Aguallo, said to her one evening, “Do you want to see what boys and girls do when they get older?” And she told me that she said, “No,” and that he said, “Well, I’m going to show you anyway.” And she said at that point he unzipped his fly and took out his hot dog and I have an anatomical diagram and I asked her to identify the hot dog on the anatomical diagram and she pointed to the penis.

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Cite This Page — Counsel Stack

Bluebook (online)
350 S.E.2d 76, 318 N.C. 590, 1986 N.C. LEXIS 2741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aguallo-nc-1986.