State v. Corbett

• Court: Supreme Court of North Carolina
• Decided: March 12, 2021
• Docket: 73A20
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-18

No. 73A20

Filed 12 March 2021

STATE OF NORTH CAROLINA

v. MOLLY MARTENS CORBETT and THOMAS MICHAEL MARTENS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 269 N.C. App. 509 (2020), reversing judgments entered on 9

August 2017 by Judge W. David Lee in Superior Court, Davidson County, and

remanding for a new trial. Heard in the Supreme Court on 11 January 2021.

Joshua H. Stein, Attorney General, by Jonathan P. Babb and L. Michael Dodd, Special Deputy Attorneys General, for the State-appellant.

Tharrington Smith, L.L.P., by Douglas E. Kingsbery, for defendant-appellee Molly Martens Corbett.

Dudley A. Witt, David B. Freedman, and Jones P. Byrd, Jr. for defendant- appellee Thomas Michael Martens.

EARLS, Justice.

¶1 In the early morning hours of 2 August 2015, a Davidson County 911 operator

received a call regarding an incident at 160 Panther Creek Court. The caller, Thomas

Martens (Tom), reported that his son-in-law, Jason Corbett (Jason), “got in a fight”

with his daughter, Molly Martens Corbett (Molly), and that he had found Jason

“choking my daughter. He said, ‘I’m going to kill her.’ ” Tom told the dispatcher that STATE V. CORBETT

Opinion of the Court

he had hit Jason in the head with a baseball bat. Jason was “in bad shape. We need

help. . . . He, he’s bleeding all over, and I, I may have killed him.” The 911 operator

instructed Tom and Molly to perform CPR while emergency medical technicians

(EMTs) were dispatched to the home. When they got there, the EMTs found Molly

performing chest compressions on Jason in the master bedroom, but Jason did not

survive. Law enforcement officers who arrived shortly thereafter found Molly “very

obviously in shock.” She told the officers she had been choked.

¶2 Subsequently, Molly and Tom were charged with and ultimately convicted of

second-degree murder for the homicide of Jason. From their first call to 911 through

the trial, Molly and Tom did not deny that they had killed Jason. Instead, they

maintained that they had lawfully used deadly force to defend themselves while

under the reasonable apprehension that they were facing an imminent threat of

deadly harm during a violent altercation initiated by Jason. On appeal, a divided

panel of the Court of Appeals vacated Molly’s and Tom’s convictions and ordered a

new trial. State v. Corbett, 269 N.C. App. 509, 512, writ allowed, 373 N.C. 580, and

writ dismissed, 375 N.C. 276 (2020).

¶3 The jury in this case did not have to determine who killed Jason. Instead, they

had to decide to believe either Tom’s testimony that Jason was threatening to kill

Molly and was in the process of choking her to death, or to believe the State’s theory

that Tom and Molly were the aggressors in the altercation and killed Jason without STATE V. CORBETT

justification. After careful review, we agree with the majority below that the trial

court committed prejudicial error in excluding evidence that went to the heart of

defendants’ self-defense claims. The trial court’s errors in excluding certain evidence

deprived defendants of the full opportunity to put the jury in their position at the

time they used deadly force. In turn, this deprived the jury of evidence necessary to

fairly determine whether Tom and Molly used deadly force at a moment when they

were actually and reasonably fearful for their lives. Accordingly, we affirm the

decision of the Court of Appeals and remand to the trial court for a new trial.

I. Background

¶4 Jason was a citizen and resident of the Republic of Ireland. He had two

children, Jack and Sarah, with his first wife, Margaret. Margaret died unexpectedly

in 2006, from what the Irish authorities determined to be complications of an asthma

attack, just eleven weeks after giving birth to Sarah. In late 2007 or early 2008, Jason

hired Molly to work as an au pair in his home in Ireland. The two later began a

romantic relationship. In 2011, Jason, Molly, Jack, and Sarah moved to Davidson

County, North Carolina, after Jason transferred to an office his employer had recently

opened in the United States. Jason and Molly married that same year.

A. The Altercation

¶5 At around 8:30 p.m. on 1 August 2015, Molly’s parents, Tom and Sharon

Martens, who lived in Tennessee, arrived at the Corbett’s home in Davidson County STATE V. CORBETT

for a visit. Tom—a retired FBI agent and former attorney—brought an aluminum

baseball bat and a tennis racket as gifts for Jack. According to Tom’s testimony, Jason

had been drinking beer with his neighbor but was pleasant and social during the

evening. Jack, who had been at a party at a friend’s house, returned home around

11:00 p.m. Because it was late, Tom decided to wait until the following morning to

give Jack the bat and tennis racket. Tom and Sharon went to sleep in the guest

bedroom, located on the floor below the master bedroom where Jason and Molly

typically slept.

¶6 Tom testified that in the middle of the night, he was awakened by the sound of

thumping on the floor above him, followed by “a scream and loud voices.” He thought

“it sounded bad . . . like a matter of urgency.” He grabbed the baseball bat and ran

upstairs toward the source of the noises, which he determined was the master

bedroom. Inside the bedroom, Tom encountered Jason and Molly facing each other.

Jason’s hands were around Molly’s neck. Tom testified that he told Jason to let Molly

go, to which Jason replied, “I’m going to kill her.” Tom again asked Jason to let Molly

go, to which Jason again replied, “I’m going to kill her.” Jason then “reversed himself

so that he had [Molly’s] neck in the crook of his right arm” and started dragging Molly

toward the bathroom.

¶7 According to Tom, he feared that if Jason reached the bathroom with Molly,

Jason would close the door and kill her. In an effort to impede Jason, Tom swung the STATE V. CORBETT

baseball bat at “the back of the two of them glued together.” However, the initial blow

apparently had no effect on Jason. From Tom’s perspective, it only “further enraged”

him. Tom continued striking Jason “to distract him because he now had Molly in a

very tight chokehold” and “she was no longer wiggling.” Tom was unable to prevent

Jason from reaching the bathroom. However, after following Jason into the bathroom,

Tom struck Jason in the head with the bat. In response, Jason charged out of the

bathroom and back toward the master bedroom, pushing Molly in front of him. Tom

continued to swing the baseball bat at Jason to try to separate him from Molly.

Eventually, Molly slipped out of Jason’s arms, but Jason was able to wrestle the bat

out of Tom’s grasp. Tom, who had lost his glasses and was pushed to the floor in the

struggle, testified that he heard Molly yell “[d]on’t hurt my dad,” although this

portion of his testimony was stricken upon the State’s objection. In a written

statement admitted into evidence at the trial, Molly maintained that at some point

after Jason took the bat from Tom, she “tried to hit [Jason] with a brick (garden décor)

I had on my nightstand.”

¶8 When Tom regained his footing, he saw Molly trapped between Jason and the

bedroom wall. He claimed that he was physically weakened and in fear for both his

daughter’s life and his own. Jason was twenty-six years younger than Tom and

outweighed him by more than 100 pounds. Tom testified the following:

A. . . . I’m on the other side of the room at the end of the bed. And things look pretty bleak. He’s got the bat. He’s STATE V. CORBETT

in a . . . good athletic position. He has his weight down on the balls of his feet. He’s kind of looking between me and Molly. And so I decided . . . to rush him and try to get ahold of the bat.

....

A. . . . [A]s desperate as it seemed, it seemed like the only thing to do. And so I rush him and I do get both hands on the bat (demonstrating). Now there are four hands on the bat. And we are struggling over control of the bat. And this is not—this is not good for me. He’s bigger and stronger and younger.

A. . . . I try to hit him this way with the end of the bat. I try to hit him with this end of the bat. I don’t know. I’m trying to hit him with anything I can (demonstrating) and I win. I get control of the bat. He loses his grip. And I hit him. And—

Q. Why did you hit him?

A. Because I don’t want him to take the bat away from me and kill me. I mean—just because he lost control of the bat doesn’t mean this is over. This was far from over. And so I still think that, you know, he has the advantage even though—‘cause I know what I’m feeling like. I’m shaking. I’m not doing good now. And so I hit him. And I hit him until he goes down. And then I step away.

Q. Do you know how many times you hit him?

A. I don’t.

Q. And why did you continue to hit him after the first hit?

A. I hit him until I thought that he could not kill me. I thought that he was—I mean, he said he was going to kill Molly. I certainly felt he would kill me. I felt both of our STATE V. CORBETT

lives were in danger. I did the best I could.

Tom gathered his thoughts and told Molly “we need to call 911.” Both Tom and Molly

were themselves “in pretty bad shape,” but Molly eventually brought Tom a phone,

and they called 911.

B. The Investigation

¶9 The first EMT to arrive at the scene found Jason on the floor of the master

bedroom. He noticed a baseball bat and a brick paver near Jason’s body. There was

“blood all over the floor and the walls.” The EMT could not locate a pulse. When the

EMT tried to lift Jason’s chin for intubation, the fingers on the EMT’s left hand “went

inside [Jason’s] skull,” and he realized that “there was severe heavy trauma to the

back of the head.” Other EMTs who attempted to revive Jason testified that his body

“felt cool” when they arrived and that they observed dried blood. The forensic

pathologist who conducted Jason’s autopsy concluded that he had died from “multiple

blunt force injuries” which included “ten different areas of impact on the head, at

least two of which had features suggesting repeated blows indicating a minimum of

12 different blows to the head.” According to the forensic pathologist, the “degree of

skull fractures . . . are the types of injuries that we may see in falls from great heights

or in car crashes under other circumstances.”

¶ 10 Corporal Clayton Stewart Daggenhart of the Davidson County Sheriff’s Office

arrived at the scene at 3:16 a.m. At trial, he testified that he found a naked white STATE V. CORBETT

male lying on his back in the master bedroom with “several areas of blood next to him

that appeared to be puddled.” There were significant amounts of blood on the bedroom

wall. Corporal Daggenhart also observed a “brick stone or paving stone and a baseball

bat” near the body. A photograph of the brick paver revealed hair “scattered

throughout” the markings on its surface. After exiting the bedroom, Corporal

Daggenhart encountered Tom and Molly. He did not notice anything “remarkable”

about either defendant, other than that Molly had blood on the top of her head. He

asked Tom and Molly to exit the house, and then went to Jack’s and Sarah’s bedrooms

to wake the children and escort them outside.

¶ 11 Deputy David Dillard of the Davidson County Sheriff’s Office was tasked with

observing Molly while law enforcement officers were investigating inside the home.

He testified that he noticed dried blood on her forehead and face but no obvious

injuries. According to Deputy Dillard, Molly “was making crying noises but I didn’t

see any visible tears. She was also rubbing her neck.” Another officer who

photographed Molly in order to document her physical condition testified that she

was “continually tugg[ing] and pull[ing] on her neck with her hand.” At some point,

EMTs who came to check on Molly found her curled up in a fetal position on the grass.

They noticed that her neck was red.

¶ 12 When ruling on whether to admit the children’s statements at issue in this

case, Molly’s interview from early that morning at the Davidson County Sheriff’s STATE V. CORBETT

Office was before the trial court. In the videotaped interview, Molly told the

investigators that Jason had been experiencing anger issues which, in recent months,

had gotten progressively worse. She stated that Jason had been verbally and

physically abusive toward her on numerous occasions and that his outbursts were

often triggered by seemingly trivial matters.1 Molly told investigators that earlier

that evening, Jason had become angry at her after being awakened by his daughter,

Sarah, who had entered their bedroom after becoming frightened by the designs on

her bedsheets. Molly alleged that when she tried to defend Sarah’s behavior by

pointing out that she was only seven years old, Jason told Molly to “shut up” and

began choking her.

¶ 13 Also before the trial court was the fact that at the urgent request of the

Davidson County Sheriff’s Office, a social worker from the Union County Department

of Social Services (DSS) had interviewed Jack, Sarah, and Molly on the day after

Jason’s death, 3 August 2015. The social worker’s arrival was unannounced. Molly

was not home when the social worker separately interviewed Jack and Sarah. The

social worker’s notes reflect that Jack disclosed that “[Jason] gets mad at [Molly] for

no good reason” and that “[Jason] curses [Molly].” He also disclosed that “[Jason’s

anger] can be for anything, such as leaving a light on.” Sarah disclosed that “[Jason]

1 Jason’s medical records, which were unsealed and admitted as evidence at trial,

revealed that a couple of weeks prior to his death, Jason had complained to his doctor about feeling “angry lately for no reason.” STATE V. CORBETT

is angry on a regular basis,” that “seemingly innocuous things . . . set him off,” and

that “she has seen Jason pull Molly’s hair.” After Molly returned home, she told the

social worker that Jason frequently became angry at both her and the children and

that the children would “lie [to Jason] almost daily trying to protect her for fear of

what their father may do.”

¶ 14 Three days later, on 6 August 2015, Davidson County DSS and the Davidson

County Sheriff’s Office arranged for Jack and Sarah to complete a child medical

evaluation at Dragonfly House, an accredited child advocacy center in Mocksville,

North Carolina. The purpose of the child medical evaluation was to determine

whether Jack and Sarah had witnessed domestic violence or experienced child abuse

and, if necessary, to diagnose the children as victims of child abuse and develop an

appropriate treatment plan. Molly’s mother, Sharon, drove Jack and Sarah to

Dragonfly House immediately following Jason’s funeral. At Dragonfly House, Jack

and Sarah were seen by a child advocate, a forensic interviewer, and a pediatrician.

Jack told the forensic interviewer that his parents “didn’t get along very well. . . . My

dad got mad about bills, leaving lights on, um, and it he (sic) just got very mad at

simple things.” He stated that Jason “physically and verbally hurt my mom,” that he

had witnessed Jason “punching, hitting, [and] pushing” Molly “[o]nce or twice,” and

that he had noticed Jason “[g]etting madder . . . he’s been cussing and screaming a

lot more, getting a lot angrier” over the preceding months. Jack told the interviewer STATE V. CORBETT

that in the event of a really bad emergency, which he defined as “[h]itting or cussing

that would be going on and on and on without stopping for an hour or two, maybe

more,” the kids knew to call their maternal grandparents and say a “key word” which

would summon the grandparents to their home and then hang up the phone. Jack’s

“key word” was “Galaxy.” Sarah’s was “Peacock.” In response to a question asked at

the request of law enforcement, Jack explained that the reason the décor paver was

in his parents’ bedroom was because “we were going to paint it so it would look pretty,

and that—it was in my mom’s room, because it was raining earlier, and we already—

we were going to paint it. We didn’t want it getting all wet. So we brought it inside,

and my mom put it at her desk.”

¶ 15 During her forensic interview, Sarah also stated that she knew to call her

grandma in the event of an emergency and “just say Peacock and hang up the phone,

and she would come over to our house.” She told the interviewer that Jason “gets

really angry” at Molly “for like ridiculous reasons.” She described how she would “go

downstairs to my parents’ bedroom” if she woke up after having a nightmare, but that

whenever she went to get Molly, she “tried to go [into the bedroom] as quiet as

possible, because my dad—I do not want my dad to wake up, because that’s not a good

thing. Because he just gets very, very, angry.” She further explained that “what

caused my dad being really mad” the night of the altercation was that “my mom kept

on coming upstairs because I—like I have fairies on my bed, and I really got scared STATE V. CORBETT

of those things, because they look like there are spiders and lizards on my bed. So

that’s why my mom had to keep on coming up [to my room]. I couldn’t fall asleep until

my mom put another sheet on my bed, and then my dad got mad.

¶ 16 Jack and Sarah were both diagnosed as victims of child abuse and

recommended to receive treatment and mental health services. By court order in a

separate contested custody proceeding, Jack and Sarah were subsequently placed in

the custody of Jason’s sister and her husband (Mr. and Mrs. Lynch) in Ireland.

C. The Trial

¶ 17 On 18 December 2015, Tom and Molly were indicted for second-degree murder

and voluntary manslaughter. Both defendants pleaded not guilty. Because Jack and

Sarah were residing in Ireland and unavailable to testify at trial, Molly filed a pre-

trial motion seeking to admit the children’s statements to the DSS social worker and

their statements at Dragonfly House into evidence. The State objected and moved to

have all of the children’s statements excluded. During a pre-trial hearing, the State

submitted to the trial court a video and transcript of Jack being interviewed via Skype

from Mr. and Mrs. Lynch’s home in Ireland and various unauthenticated materials

the children had purportedly written after returning to Ireland. The interview was

conducted on 27 May 2016 by an assistant district attorney (ADA) from the Davidson

County District Attorney’s Office. During the interview, Jack told the ADA that “I

didn’t tell the truth at Dragonfly” or when he spoke with DSS. He claimed that Molly STATE V. CORBETT

coerced the children into lying by telling them that Mr. and Mrs. Lynch would obtain

custody and take them back to Ireland, where she would never see them again, unless

they told investigators “that our dad was abusive and . . . that he was very mean to

Molly.” Jack also claimed that Molly had physically abused him. When the ADA asked

why he was “telling the truth today” after lying previously, Jack replied “[b]ecause I

just want the truth. And I found out what happened to my dad, and I want justice to

be served.” The trial court ruled that Jack’s and Sarah’s statements to the DSS social

worker and at Dragonfly House were inadmissible hearsay and denied defendants’

motion to admit the children’s statements into evidence.

¶ 18 Tom and Molly were tried jointly in the Superior Court, Davidson County. The

State’s case centered on the forensic evidence—which established that Jason had

been killed by repeated blows to the head from either the aluminum baseball bat or

the brick paver—and testimony from the EMTs and law enforcement officers who

were present at the home on the night of Jason’s death. In addition, the State

presented expert testimony from Stuart H. James, an expert in bloodstain pattern

analysis. James testified that based on his review of the photographs and videos

taken at the scene of the crime, as well as the physical evidence collected by law

enforcement, the bloodstain patterns he examined were “consistent with impacts to

the head of [Jason] as he was descending to the floor with his head contacting the

south wall in the areas of the impact.” According to James, small blood spatters on STATE V. CORBETT

the boxer shorts Tom was wearing during the altercation were “impact spatters . . .

consistent with the wearer of these boxer shorts in proximity to the victim Jason

Corbett when blows were struck to his head” and that blood spatters found on the

underside of Tom’s boxer shorts “were consistent with the wearer of the shorts close

to and above the source of the spattered blood.” He also testified that blood spatters

on Molly’s pajama bottoms indicated that she was near Jason when his head was

struck as he was descending to the floor.

¶ 19 Tom and Molly claimed self-defense. Molly did not testify or present evidence.

With defendants’ consent, the State introduced into evidence the written statement

that Molly gave to law enforcement officers in the hours after Jason’s death. Tom took

the stand and called one character witness. During his testimony, Tom shared his

version of the altercation leading to Jason’s death, as recounted above. The trial court

sustained the State’s objection to the portion of Tom’s testimony in which he recalled

hearing Molly yell “[d]on’t hurt my dad.” Tom admitted that he had previously made

disparaging comments about Jason to a coworker after an incident involving a party

Jason attended at Tom’s home.

¶ 20 On 9 August 2017, the jury returned verdicts finding both defendants guilty of

second-degree murder. The defendants were each sentenced to a term of 240 to 300 STATE V. CORBETT

months imprisonment. They gave oral notice of appeal in open court.2

D. The Court of Appeals’ Decision

¶ 21 Although defendants raised thirteen issues on appeal, the Court of Appeals

described the ultimate question at trial as “deceptively simple, boiling down to

whether Defendants lawfully used deadly force to defend themselves and each other

during the tragic altercation with Jason.” Corbett, 269 N.C. App. at 512. Relevant for

the purposes of our review, defendants challenged (1) the trial court’s exclusion of

Jack’s and Sarah’s statements to DSS and at Dragonfly House, (2) the trial court’s

admission of a portion of James’s expert testimony based upon his examination of the

blood spatters found on Tom’s boxer shorts and Molly’s pajama bottoms; and (3) the

trial court’s exclusion of Tom’s testimony that he heard Molly yell “[d]on’t hurt my

dad.” Id. at 582. A majority of the Court of Appeals concluded that (1) Jack’s and

Sarah’s statements were admissible hearsay under both N.C.G.S. § 8C-1, Rule 803(4)

and Rule 803(24); (2) James’s testimony regarding the boxer shorts and pajama

bottoms was inadmissible expert testimony because it did not meet the requirements

of N.C.G.S. § 8C-1, Rule 702(a); and (3) Tom’s stricken testimony that he heard Molly

say “[d]on’t hurt my dad” was “either non-hearsay, or alternatively, admissible

2 Defendants also filed a Motion for Appropriate Relief (MAR) on 16 August 2017 and

a supplemental MAR on 25 August 2017 alleging juror misconduct and other violations of their constitutional rights. The trial court denied the MARs without conducting an evidentiary hearing, and the Court of Appeals affirmed. State v. Corbett, 269 N.C. App. 509, 521 (2020). Those issues are not before us because they were not a basis for the dissenting opinion below. See N.C. R. App. P., Rule 16(b). STATE V. CORBETT

hearsay.” Id. at 560. Judge Collins concurred in part and dissented in part with

regard to the majority’s resolution of the defendants’ evidentiary challenges, arguing

that the trial court did not prejudicially err.3 Upon close examination of the record,

we affirm the decision of the Court of Appeals.

II. Evidentiary Errors

A. Jack’s and Sarah’s Statements

¶ 22 At trial, parties are generally permitted to present evidence to the jury that is

relevant and admissible, subject to the limitations of N.C.G.S. § 8C-1, Rule 403. See,

e.g., State v. McElrath, 322 N.C. 1, 13 (1988) (“Relevant evidence, as a general matter,

is considered to be admissible.”). “Evidence is relevant if it has any logical tendency

to prove a fact in issue.” State v. Goodson, 313 N.C. 318, 320 (1985). Portions of Jack’s

and Sarah’s statements to the DSS investigator and at Dragonfly House were plainly

relevant to defendants’ case for at least three reasons. First, Jack’s and Sarah’s

disclosures regarding the nature of their parents’ relationship presented

circumstantial evidence tending to support defendants’ account of the altercation

which resulted in Jason’s death. Second, Jack’s statement to the forensic investigator

providing an innocent explanation for the presence of the brick paver tended to

corroborate Molly’s written statement, introduced by the State and admitted into

3 The Court of Appeals also held that the trial court erroneously instructed the jury

on the aggressor doctrine with regard to Tom. Because we agree with the Court of Appeals that the trial court’s evidentiary errors were prejudicial, we do not need to reach the question of whether the trial court erred by giving the aggressor-doctrine instruction. STATE V. CORBETT

evidence, that she “tried to hit [Jason] with a brick (garden décor) I had on my

nightstand.” Conversely, it tended to detract from the State’s argument that Molly’s

account was not credible because, as the prosecutor argued, “there is nothing else

having to do with landscaping or gardening or building walls inside that bedroom.”

Third, Sarah’s statement explaining her nightmare tended to support Molly’s claim

that Sarah’s arrival in the master bedroom angered Jason and precipitated the

altercation.

¶ 23 Although relevant, Jack’s and Sarah’s statements were out-of-court

statements offered for the truth of their content, making them hearsay. N.C.G.S.

§ 8C-1, Rule 801(c) (2019). (“ ‘Hearsay’ is 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.”), “Hearsay is not admissible except as provided by statute or

the Rules of Evidence.” State v. Hinnant, 351 N.C. 277, 283 (2000). The Court of

Appeals held that the trial court erred by failing to admit Jack’s and Sarah’s

statements at Dragonfly House pursuant to Rule 803(4)—the medical diagnosis or

treatment exception—and their statements at Dragonfly House and to DSS pursuant

to Rule 803(24)—the residual exception. After careful consideration, we substantially

agree with the reasoning and conclusions of the majority below concerning Rule

803(4) with regard to the statements given at Dragonfly House and concerning Rule

803(24) with regard to their statements to the social worker at their uncle’s house. STATE V. CORBETT

We first address the exception to the hearsay rule for statements made for the

purpose of medical diagnosis or treatment.4

1. The Medical Diagnosis or Treatment Exception

¶ 24 Defendants argue that Jack’s and Sarah’s statements at Dragonfly House were

admissible under Rule 803(4) because they were made for the purpose of diagnosing

the children as victims of child abuse. Pursuant to Rule 803(4), “[s]tatements 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” are admissible as hearsay “insofar as [the

statements are] reasonably pertinent to diagnosis or treatment. N.C.G.S. § 8C-1, Rule

803(4) (2019). We have interpreted Rule 803(4) to “require[ ] a two-part inquiry: (1)

whether the declarant’s statements were made for purposes of medical diagnosis or

treatment; and (2) whether the declarant’s statements were reasonably pertinent to

diagnosis or treatment.” Hinnant, 351 N.C. at 284.5 A trial court’s determination that

4 The trial court’s written order refers only to Rule 803, but the defendants moved for

admission of the statements under both Rule 803 and Rule 804. 5 The majority below reversed the trial court’s order finding that the statements were

not pertinent to medical diagnosis or treatment, but the dissenting judge expressly declined to address this holding. Before this Court, the State does not argue that the statements Jack or Sarah made at Dragonfly House are inadmissible under the second prong of the Hinnant test. Accordingly, the State has abandoned any argument that Jack’s and Sarah’s statements should be excluded as not reasonably pertinent to their medical diagnosis or treatment. See N.C. R. App. P. 28(b)(6); State v. Augustine, 359 N.C. 709, 738 (2005) (“Because defendant presents no argument and cites no authority in support of these contentions, they are deemed abandoned.”). STATE V. CORBETT

an out-of-court statement is inadmissible under Rule 803(4) is reviewed de novo. State

v. Norman, 196 N.C. App. 779, 783 (2009) (citing Hinnant, 351 N.C. at 284).6

¶ 25 The conceptual foundation of Rule 803(4) is “the rationale that statements

made for purposes of medical diagnosis or treatment are inherently trustworthy and

reliable because of the patient’s strong motivation to be truthful.” Hinnant, 351 N.C.

at 284. At its core, the exception is predicated on the presumptive trustworthiness of

a declarant who “is motivated to describe accurately his or her symptoms and their

source” in order to obtain a proper diagnosis and appropriate treatment. Id. at 285,

(quoting R.S. v. Knighton, 125 N.J. 79, 85 (1991)). However, in some circumstances,

the subjective motivation of a declarant may be difficult to ascertain. In Hinnant, we

noted “the difficulty of determining whether a [child] declarant understood the

purpose of his or her statements.” Id. at 287. Even in a setting where it would be

6 In disputing the appropriateness of reviewing the trial court’s admissibility determination de novo, the dissent claims that because our case law regarding this issue is “non-existent, we can look to the federal rules for guidance.” In fact, we do have case law on point regarding this issue that we should follow or expressly overrule for good cause, not ignore. Although this Court has not previously explicitly elaborated at length the standard of review which governs a challenge to a trial court’s determination regarding the admissibility of hearsay under Rule 803(4), our numerous opinions interpreting Rule 803(4) establish that the Court has routinely reviewed these decisions de novo without affording deference to the trial court’s determination. See, e.g., Hinnant, 351 N.C. at 285; State v. Jones, 339 N.C. 114, 146 (1994); State v. Stafford, 317 N.C. 568, 571 (1986). In addition, although decisions of the Court of Appeals are not binding on this Court, the fact that the Court of Appeals has interpreted our precedents as making clear that the admissibility of hearsay under Rule 803(4) is reviewed de novo further confirms that there exists settled precedent in the State of North Carolina, notwithstanding decisions of the federal courts which may have arrived at different conclusions. STATE V. CORBETT

obvious to an adult declarant, a child declarant may be confused or unclear about

precisely why certain questions are being asked. In contrast to an adult, a child is

unlikely to be able to independently and affirmatively seek out medical treatment or

even know when medical treatment may be necessary. In addition, professionals who

are responsible for the well-being of children may, understandably, tailor their

approach to eliciting sensitive health information to account for a child’s unique

perceptions and vulnerabilities.

¶ 26 Given these challenges, some jurisdictions have been reluctant to apply Rule

803(4) to admit hearsay statements given by child declarants. North Carolina has

charted a different course. This Court has instead sought to adhere to “the common

law rationale underlying Rule 803(4)” in cases involving child declarants by closely

analyzing the “objective record evidence to determine whether the declarant had the

proper treatment motive.” Id.; see also State v. Stafford, 317 N.C. 568, 574 (1986).

Rather than a bright-line rule, we have instructed trial courts to “consider all

objective circumstances of record surrounding [the] declarant’s statements in

determining whether he or she possessed the requisite intent under Rule 803(4).”

Hinnant, 351 N.C. at 288. Accordingly, in determining the admissibility of Jack’s and

Sarah’s statements, we look primarily to “objective circumstances” in deciding

whether or not the children possessed the requisite “motivation to provide truthful

information” which assures the reliability of otherwise inadmissible hearsay. Id. at STATE V. CORBETT

288 (quoting United States v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993)).

¶ 27 The first prong of the Hinnant test requires us to examine the specific context

in which Jack’s and Sarah’s statements were made. As the majority below correctly

noted, our analysis is not limited to any one specific factor, and no specific factor is

dispositive. Corbett, 269 N.C. App. at 530–31. However, we find the following three

factors articulated in Hinnant to be most probative in determining the reliability of

the children’s statements: (1) whether “some adult explained to the child the need for

treatment and the importance of truthfulness”; (2) “with whom, and under what

circumstances, the declarant was speaking”; and (3) “the surrounding circumstances,

including the setting of the interview and the nature of the questioning.” Hinnant,

351 N.C. at 287–88. In the present case, our analysis of each of these three factors

strongly supports admitting the statements Jack and Sarah made during their

interviews at Dragonfly House.

¶ 28 First, the intake procedure at Dragonfly House included a thorough, age-

appropriate explanation of the overarching medical purpose of the children’s visit.

Unlike in Hinnant, where neither the interviewer “[n]or anyone else explained to [the

child] the medical purpose of the interview or the importance of truthful answers,”

both were explained in significant detail to Jack and Sarah. Id. at 289–90. When the

children arrived at Dragonfly House, a child advocate explained the child medical

evaluation process “at their level” to “make[ ] sure that they understand and . . . know STATE V. CORBETT

what to expect” during their “forensic interview and medical exam.” The children

were informed that while they are being interviewed by a forensic interviewer, their

“caregiver will be talking with our doctor. Our doctor will be asking questions about

your health throughout your whole life.” The forensic interviewer then provided Jack

and Sarah with examples of the types of questions they would be expected to answer

and a detailed description of the medical examination they would undergo

immediately after the interview. The forensic interviewer testified that before

beginning any interview, she articulates the following three ground rules that the

children must understand and adhere to, each of which emphasizes the importance

of truthfulness:

[The] rules are to—do you know the difference between a truth and a lie? We get them to establish they know the difference. The second rule is if I make a mistake, you can correct me to let them know while I’m an adult, you can tell me I’m wrong. If I ask you a question that you don’t know the answer to, it’s okay to say you don’t know. We don’t want you to guess at anything.

To reinforce the importance of telling the truth, the child advocate will “show them

the cameras and show them the rules and tell them where they are being recorded”

before they “start the actual interview process.” The intake procedure and the

structure of the children’s entire visit to Dragonfly House are designed to help the

treating physician “find out the truth regardless of what that is,” in order to help the

organization fulfill its “primary purpose” of serving “the physical and mental STATE V. CORBETT

wellbeing of the child.” The reliability of the children’s testimony is enhanced by

Dragonfly House’s adherence to procedures that experts in child psychology rely upon

to determine if children can distinguish between truth and fiction and provide

truthful statements. See State v. Thornton, 158 N.C. App. 645, 650 (2003) (finding the

fact that “[t]he Center [for Child and Family Health in Durham] utilizes a team

approach to the diagnosis and treatment of sexually abused children” supported

admissibility).

¶ 29 Second, the children were interviewed by a trained professional specifically

employed to elicit truthful information from children suspected to have recently

experienced child abuse. Although it is true that Jack and Sarah did not make the

statements at issue directly to a medical doctor, statements “need not have been made

to a physician” to be admitted under Rule 803(4). State v. Smith, 315 N.C. 76, 84

(1985) (quoting the official commentary to Rule 803(4)). Instead, we examine the role

of the person to whom the child declarant makes the statements, that person’s

relationship (if any) to the child’s treating physician, and the way in which that

person’s function has been communicated to the child in order to ascertain whether

the statements are “inherently trustworthy and reliable” based upon the declarant’s

“interest in telling or relaying to medical personnel as accurately as possible the cause

for the patient’s condition.” Id.

¶ 30 The objective circumstances of Jack’s and Sarah’s interviews demonstrate they STATE V. CORBETT

likely understood that the information they provided would be used for their

diagnosis and treatment. Prior to Jack’s and Sarah’s forensic interviews, the child

advocate made clear to the children that the forensic interview and medical

examination were both necessary components of the child medical evaluation. The

interviewer told the children that their interviews were being recorded and that other

members of Dragonfly House’s “multi-disciplinary team”—which includes a

physician—might review them. Immediately after finishing the interviews, the

forensic interviewer “discuss[ed] that information that [she] had gathered” with the

treating physician, for the purpose of “aid[ing] [the physician] in her physical exam

of the children . . . so she can perform that physical exam best for that child.” Further,

the physician’s anticipated, customary, and actual use of the information gleaned

from the forensic interviews in diagnosing and treating Jack and Sarah is an objective

indicator of the reliability of their statements.

¶ 31 In addition, we agree with the Court of Appeals that the “child-friendly

atmosphere and the separation of the examination rooms do not indicate that the

children’s statements during the interviews were not intended for medical purposes.”

Corbett, 269 N.C. App. at 534. The reason Dragonfly House utilizes a child-friendly

approach in conducting child medical evaluations is because research demonstrates

that it is the best way to obtain reliable information from children who may have STATE V. CORBETT

recently experienced abuse.7 With an adult patient, it is reasonable to expect that a

medical professional would elicit the kind of substantive information Jack and Sarah

provided to the forensic interviewer. An adult would typically complete a form in the

waiting room or disclose the information directly to a nurse or physician in the

examination room. But Dragonfly House, in accordance with state policy and national

best practices, has determined that such an approach would be ill-suited to the

sensitive task of obtaining this information from children. Indeed, the stated purpose

of relying upon a forensic interviewer is to ensure that the interview is “done by

someone who is trained to talk to children in a non-leading manner in a format that

is approved on a national level while being recorded.” Dragonfly House needs reliable

information in order to serve its primary purpose of serving the well-being of children.

They utilize this method of evaluating children to increase the likelihood that the

information the physician receives will be reliable. Based on existing best practices

developed by medical professionals treating child abuse victims, their approach

supports, rather than detracts from, the reliability of Jack’s and Sarah’s statements.

7 The executive director of Dragonfly House testified that they conduct child medical

evaluations while utilizing procedures approved by the North Carolina Department of Health and Human Services, based on a program established by the University of North Carolina at Chapel Hill. In addition, as an accredited children’s advocacy center, Dragonfly House must “meet the accreditation standards and guidelines set forth by the National Children’s Alliance,” a national professional membership organization which develops best practices to “support child abuse victims” by “help[ing] children and families heal in a comprehensive, seamless way so no future is out of reach.” See National Children’s Alliance, Our Story, https://www.nationalchildrensalliance.org/our-story (last visited Feb. 28, 2021). STATE V. CORBETT

See State v. Shore, 258 N.C. App. 660, 676 (2018) (statements obtained by forensic

examiner at child advocacy center deploying best practices in interviewing children

sufficiently reliable to form basis of expert witness’s testimony).

¶ 32 Finally, the “setting” of Jack’s and Sarah’s interviews and the “nature of the

questioning” by the forensic interviewer both support defendants’ argument that the

children’s statements were reliable and therefore admissible as an exception to the

hearsay rule under Rule 803(4). The forensic interview took place “one room down

and across the hall” from the room where the children were physically examined by

the treating physician. The physical examination immediately followed the forensic

interview. Thus, the interview was both spatially and temporally proximate to Jack’s

and Sarah’s interactions with the physician—the children were told in advance to

expect, and did indeed experience, “a seamless transition from the forensic interview

into the physical exam.” This is a strong objective indicator that the children

understood the forensic interview and the physical examination as two aspects of a

single, integrated process—their child medical evaluations—rather than discrete,

unrelated events. See State v. Lewis, 172 N.C. App. 97, 104 (2005) (finding probative

of reliability the fact that “[t]he interviews took place . . . immediately prior to an

examination by a doctor.”); Thornton, 158 N.C. App. at 650 (finding probative of

reliability the fact that “[b]oth the physical examination and the initial interview

were conducted on [the same day]”). STATE V. CORBETT

¶ 33 In addition, the protocol used by the forensic interviewer, which is based on a

“national model” that “all [forensic interviewers] have to follow,” prohibits the kind

of questioning that might give cause to doubt the reliability of the children’s answers.

The interviewer is not permitted to “ask leading questions or suggest answers or

suggest topics to the children” and instead relies upon “open-ended” questions

designed to allow the children to freely share their own narrative. This style of

interview stands in stark contrast to the circumstances in Hinnant, where this Court

held inadmissible statements obtained through an “entire interview [which] consisted

of a series of leading questions, whereby [the interviewer] systematically pointed to

the anatomically correct dolls and asked whether anyone had or had not performed

various acts with [the child].” Hinnant, 351 N.C. at 290. Cf. Thornton, 158 N.C. App.

at 651 (concluding that statements elicited by an interviewer who asked the child

“very general questions about her home life, and ‘very general and nonleading’

questions about any touching that may have occurred” were admissible).

¶ 34 The State does not meaningfully dispute that the objective circumstances of

Jack’s and Sarah’s interviews at Dragonfly House “indicate that the children

understood that the purpose of the interviews was to obtain medical diagnosis or

treatment.” Corbett, 269 N.C. App. at 532. In its brief, the State assures this Court

that, as a general matter, it believes that statements made during interviews

conducted at a child advocacy center like Dragonfly House should be admitted under STATE V. CORBETT

Rule 803(4). The State expressly disclaims the argument that “there was any error

with the questions asked by [Dragonfly House] or the procedures used in the [ ]

interviews in this case, all of which was proper.” Instead, the State argues that this

case is different because when asked by the interviewer to “[t]ell me why you’re here,”

Sarah responded “[b]ecause my dad died,” and Jack responded, “my dad died, and

people are trying—my aunt and uncle from my dad’s side are trying to take away—

take me away from my mom.” In the State’s view, those answers explicitly

demonstrate that the children did not understand their interviews to be for the

purpose of medical diagnosis, and therefore, the rationale that statements made for

the purpose of medical diagnosis are likely to be reliable does not apply.

¶ 35 The problem with this argument is that the standard under Rule 803(4),

developed in our case law and interpreted in the context of assessing statements

made by child patients, does not look to whether the child has explained the purpose

of the interview to the interviewer in any particular manner. Instead, we ask whether

the interviewer explained to the child the importance of being truthful and whether

the interview occurred in circumstances which indicate that “the child understood the

[witness’] role in order to trigger the motivation to provide truthful

information.” Hinnant, 351 N.C. at 288 (alteration in original) (quoting Barrett, 8

F.3d at 1300). Indeed, the children’s own statements at other points in the interview

dispel the notion that that they failed to grasp the importance of being truthful. Sarah STATE V. CORBETT

told the forensic interviewer that “everybody’s like just say what’s the truth. . . . And

my mom just says, tell the truth, Sarah. That’s all she says.” Jack told the interviewer

that when he learned he was being taken to Dragonfly House, he was “nervous at

first, but then . . . my grandma and mom said everything’s going to be fine. You’re

just going to ask me some questions, and they wanted me to tell the truth.” The

State’s narrow argument otherwise stands in significant tension with its typical

position when litigating criminal prosecutions which rely on child declarants. See

Corbett, 269 N.C. App. at 537 (“Most often it is the State seeking [the] admission” of

“this type of evidence in cases involving children”). As one law enforcement officer

testified at trial, he had brought “[o]ver 500” children to Dragonfly House for

treatment since it opened in 2010, and he agreed that these types of forensic

interviews were extremely helpful in the prosecution of individuals.

¶ 36 Here, the Court of Appeals correctly concluded that Jack’s and Sarah’s

statements in response to the question asking why they were at Dragonfly House do

not change the outcome of the analysis under the first prong of the Hinnant test.

Jack’s and Sarah’s answers were not inconsistent with an understanding of the

overarching medical purpose of their visit to Dragonfly House and the need for them

to be truthful. In their answers, Jack and Sarah properly identified the event which

triggered their referral to Dragonfly House to be treated for possible physical and

psychological trauma. If the event triggering Jack and Sarah’s visit to Dragonfly STATE V. CORBETT

House had been a car accident and they had responded to the question “why are you

here” with the statement “I am here because I was in a car accident,” this answer

would not be proof that the children did not understand that they were receiving

medical treatment. It would prove only that they had a basic understanding of cause

and effect. The same is true here. The violent death of their father at the hands of the

people they considered their mother and grandfather was relevant to their need for

medical evaluation. Their diagnosis and treatment for the condition of experiencing

child abuse illustrate that for Jack and Sarah, the circumstances of their father’s

death and their medical needs were intertwined. Similarly, Jack’s awareness that the

outcome of his medical examination might have implications for his custody

situation—a proposition which is likely true anytime a child is examined at Dragonfly

House—is not evidence that he did not understand the medical purpose of his visit or

the need to be truthful.

¶ 37 As described above, the basic premise of Hinnant is that given the inherent

difficulties in ascertaining a child declarant’s subjective motivations—and the child’s

comparative lack of agency in seeking out medical treatment and lack of

understanding of when medical treatment is necessary relative to an adult—a trial

court “should consider all objective circumstances of record surrounding [a]

declarant’s statements in determining whether he or she possessed the requisite

intent under Rule 803(4).” Hinnant, 351 N.C. at 288 (emphasis added). As the Court STATE V. CORBETT

of Appeals correctly held in an earlier case, it is highly probative of Jack’s and Sarah’s

motivations for truthfulness that they were interviewed in private, that they

discussed sensitive topics in a “comfortable and ‘safe’ environment,” and that the

interviewer “did not use leading questions” or “ask [the child] many specific

questions” while “ ‘adher[ing] to the protocol’ established by . . . a ‘licensed and

accredited child advocacy center.’ ” In re M.A.E., 242 N.C. App. 312, 321–22 (2015).

The objective circumstances of the interview at Dragonfly House indicate that Jack’s

and Sarah’s statements were made for the purpose of obtaining medical diagnosis or

treatment and were reliable.

¶ 38 It would turn Hinnant on its head to disregard the “objective circumstances of

record,” which overwhelmingly point toward admitting the children’s statements, and

instead base our decision on a child’s single response of ambiguous significance to a

question posed early in the interview process. We hold that defendants have met their

burden of “affirmatively establish[ing] that the declarant[s] had the requisite intent

by demonstrating that the declarant made the statements understanding that they

would lead to medical diagnosis or treatment.” Hinnant, 351 N.C. at 287. Accordingly,

we affirm the Court of Appeals’ holding that the trial court erred by ruling that Jack’s

and Sarah’s statements regarding Jason and Molly’s relationship and the children’s

statements regarding their own relationships with Jason and Molly were

inadmissible. STATE V. CORBETT

2. Residual Hearsay Exception

¶ 39 In addition to challenging the Court of Appeals’ conclusion that Jack’s and

Sarah’s statements at Dragonfly House were admissible under Rule 803(4), the State

argues that the majority below erred in holding that the children’s statements to the

DSS social worker and at Dragonfly House were both admissible under Rule 803(24).

Because we agree with the Court of Appeals that the trial court erroneously excluded

the children’s statements at Dragonfly House under the medical diagnosis or

treatment exception, we now consider whether the children’s statements to the DSS

social worker were admissible under Rule 803(24).8 We hold that the trial court

abused its discretion in failing to admit Jack’s and Sarah’s statements to the DSS

social worker under the residual exception to the hearsay rule because the trial

court’s conclusions of law rested on unsupported factual findings and because those

conclusions cannot otherwise be supported by the record evidence.

¶ 40 The “residual exception” provides that a hearsay statement “not specifically

covered by any of the” other enumerated exceptions is admissible if it possesses

“equivalent circumstantial guarantees of trustworthiness.” N.C.G.S. § 8C-1, Rule

803(24) (2019). A statement possesses “circumstantial guarantees of trustworthiness”

8 Because Rule 803(24), the residual hearsay exception, applies only if a hearsay statement is not specifically covered by another exception to the hearsay rule, there is no need to consider whether the children’s statements made at Dragonfly House are also admissible under this exception. See N.C.G.S. § 8C-1, Rule 803(24) (2019). STATE V. CORBETT

if

the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Id. A trial court’s determination as to the admissibility of hearsay statements

pursuant to Rule 803(24) is reviewed for abuse of discretion. See State v. Smith, 315

N.C. 76, 97 (1985).

¶ 41 In order to facilitate effective judicial review of a decision to admit or exclude

statements under the residual exception, a trial court must “make adequate findings

of fact and conclusions of law sufficient to allow a reviewing court to determine

whether the trial court abused its discretion in making its ruling.” State v. Sargeant,

365 N.C. 58, 65 (2011). These findings must address

(1) whether proper notice has been given, (2) whether the hearsay is not specifically covered elsewhere, (3) whether the statement is trustworthy, (4) whether the statement is material, (5) whether the statement is more probative on the issue than any other evidence which the proponent can procure through reasonable efforts, and (6) whether the interests of justice will be best served by admission.

State v. Valentine, 357 N.C. 512, 518 (2003). We have deemed the third factor, the

trustworthiness of the statement, to be the “most significant requirement.” Smith,

315 N.C. at 93. When assessing trustworthiness, a trial court considers the following, STATE V. CORBETT

non-exhaustive set of factors: “(1) assurances of the declarant’s personal knowledge

of the underlying events, (2) the declarant’s motivation to speak the truth or

otherwise, (3) whether the declarant has ever recanted the statement, and (4) the

practical availability of the declarant at trial for meaningful cross-examination.”

State v. Triplett, 316 N.C. 1, 10–11 (1986).9

¶ 42 In the present case, the trial court made findings of fact which track all four of

these factors before concluding that “[t]he proffered statements do not have

circumstantial guarantees of trustworthiness.” However, upon close examination of

the record, we agree with the Court of Appeals that these findings were

fundamentally flawed. “If the trial court . . . makes erroneous findings, we review the

record in its entirety to determine whether that record supports the trial court’s

conclusion concerning the admissibility of a statement under a residual hearsay

exception.” Sargeant, 365 N.C. at 65. Thus, after identifying the trial court’s

erroneous findings, we independently examine the record to determine if the trial

court’s ultimate conclusion regarding the admissibility of evidence under the residual

exception can be supported. We hold that the trial court’s conclusion that the

statements lacked trustworthiness is not and cannot be supported by the evidence in

the record.

9 There is no dispute regarding the fourth factor of the Triplett test, the “practical

availability” of the children at trial, as the children were living with their paternal aunt and uncle in Ireland and had not returned to the United States to testify. STATE V. CORBETT

¶ 43 First, the trial court determined that it was “not assured of the personal

knowledge of the declarants as to the underlying events described” based on its

factual finding that “both children identified the source of their knowledge being

nothing more than statements of [Molly] and [Molly’s] mother. The declarations

contain no reference to seeing, hearing or perceiving anything about the events

described except these statements of others.” This conclusion is not supported by the

text of the DSS social worker’s record of the interviews with Jack and Sarah. At least

some of the relevant and material statements proffered by defendants were based on

the children’s firsthand knowledge of incidents they contemporaneously saw, heard,

or perceived. For example, Jack told the DSS social worker that “his dad curses his

mom; he stated that he has seen his dad a few times hit his mom with his fist

anywhere on her body that he can.” He stated that both he and his sister “tried to

stop the fighting by yelling at his parents asking them to stop and by trying to push

them apart.” Sarah told the DSS social worker that her “dad fights her mom” and

“she gets in trouble because her dad gets angry at her for saying [to] stop [fighting]”

but that “she doesn’t say stop to her mom because her mom is not doing anything

wrong she is just [standing] up for herself.” She stated that “her dad is angry on a

regular basis . . . if you leave a light on he gets angry, or if you leave a door open or

do not walk the dog her father gets angry and . . . they (her mother and father) go

into their room.” She stated that “she saw her dad smack her mom across the face STATE V. CORBETT

with an open hand,” so she “ran into the bathroom [with Jack] and brushed [her]

teeth and pretended that [she] did not see it.”

¶ 44 To be sure, in response to some questions, Jack and Sarah disclosed that the

information they were conveying was communicated to them by Molly. The trial

court’s conclusion that the children’s statements lacked trustworthiness also rested

on its unsupported determination that it was “not assured of the children’s motivation

to speak the truth, but instead finds the children were motivated, in the near

immediate aftermath of the death of their father, to preserve a custody environment

with the only mother-figure they could remember having known during their lives.”

In assessing a declarant’s motivation for truthfulness, “the issue is not whether [the

declarant’s] statement is objectively accurate; the determinative question is whether

[the declarant] was motivated to speak truthfully when” the statement was made.

Sargeant, 365 N.C. at 66. The inquiry does not require defendants to prove that every

statement made by Jack and Sarah was truthful. Instead, it requires the trial court

to determine if the declarants had “reason to lie” or “would have benefitted from

altering the[ir] story.” Valentine, 357 N.C. at 519.

¶ 45 In lieu of direct evidence, the State emphasizes that Jack and Sarah desired to

remain in Molly’s care and were aware that their custody may be at issue in the

aftermath of their father’s death. In essence, the State asks us to presume Jack’s and

Sarah’s motivations to lie because they expressed a desire to remain with their sole STATE V. CORBETT

surviving caregiver and perceived that their family circumstances might change in

the aftermath of a violent altercation which resulted in the death of their only then-

living biological parent. We have never held that only children who do not like their

parents or who are blind to the potential consequences of a destabilizing family crisis

possess a motivation for truthfulness, and we reject the invitation to do so here.

¶ 46 Of course, a trial court does not abuse its discretion when in an exercise of that

discretion it assigns different weight to different pieces of evidence in arriving at a

determinative legal conclusion. When examining the trial court’s order, we do not

“reweigh the evidence and make our own factual findings on appeal, a task for which

an appellate court like this one is not well suited.” State v. Rodriguez, 371 N.C. 295,

319 (2018). Even if the record contains significant evidence that the children

possessed a motivation for truthfulness, we would be compelled to affirm the trial

court’s order if there were evidence in the record “tending to support a contrary

determination.” Id. In this case, however, the record is bereft of evidence supporting

the trial court’s conclusion that the children lacked a motivation for truthfulness.

¶ 47 Finally, we conclude that the trial court’s finding that Jack’s and Sarah’s

statements “were specifically recanted and disavowed” is unsupported by the record.

The children’s subsequent statements calling into question the reliability of their

statements to the DSS social worker and at Dragonfly House are not evidence that

all of their statements lacked trustworthiness. The primary basis for the trial court’s STATE V. CORBETT

finding that the statements were recanted was the Skype interview with Jack

conducted by the ADA, during which Jack stated that he “told the person who was

interviewing [him (the DSS social worker and Dragonfly House forensic interviewer)]

exactly what [Molly] told me to say.” In addition, the trial court found that Sarah

“recanted her statements in diary entries made after her return to Ireland.” We do

not dispute the trial court’s authority to rely upon these sources of evidence in making

a threshold determination as to the admissibility of Jack’s and Sarah’s statements

under the residual exception.10 However, this evidence in no way calls into question

all of the statements the children made which were relevant and probative to

defendants’ self-defense claims.

¶ 48 In his Skype interview, Jack stated that while in the car on the way to

Dragonfly House, Molly “started making up little stories about my dad, saying that

10 In justifying its conclusion that the trial court erred by failing to admit Jack’s and

Sarah’s statements under the residual exception, the majority below stated that “it is unclear from finding of fact #22 why the trial court deemed the ‘diary entries’ or the circumstances of Jack’s Skype interview with a member of the district attorney’s office to be more trustworthy than either of the objective and impartial interviews at issue here.” Corbett, 269 N.C. App. at 545. There may have been valid reasons for questioning the reliability of Jack’s and Sarah’s post-trial recantations. Notably, Jack’s statement contained allegations that were internally inconsistent or flatly contradicted by the evidentiary record, and Sarah’s diary entries were not authenticated. In addition, Jack explicitly stated that the reason he was recanting his prior statements was because he “found out what happened to my dad” after having begun living with Jason’s sister in Ireland. Nevertheless, we agree with the State that the trial court was entitled to consider Jack’s Skype interview and Sarah’s diary entries, regardless of whether either would ultimately have been deemed admissible evidence, in making a preliminary determination regarding the admissibility of the Dragonfly House interview and DSS interview. See N.C.G.S. § 8C-1, Rule 104(a). STATE V. CORBETT

he was abusive. And then she started crying, and she said if you don’t tell the truth,

we’ll never, ever see you again. If you don’t tell this, we’ll never see you again.” When

the ADA asked Jack to clarify what he meant by “this,” Jack responded “[l]ike what

she was telling us to say. She was telling us to say that our dad was abusive and

saying that he was very mean to Molly.” When asked if he could share “any more of

the stories [Molly] told you to tell,” Jack replied, “[n]o.” There is some reason to doubt

that this exchange occurred as Jack recalled it, given that the testimony of the staff

at Dragonfly House establishes that Molly did not accompany Jack and Sarah to that

interview. Regardless, even if this exchange did occur, it occurred after Jack and

Sarah were interviewed by the DSS social worker on 3 August 2015. Notably, the

DSS social worker’s visit was unannounced and Molly was not present at the time.

Jack’s recantation was limited in nature—at most, he recanted his previous claims

that Jason was abusive toward Molly and the children—not a specific disavowal of

every statement he had made during his DSS interview. Accordingly, the record

cannot support the trial court’s conclusion that Jack and Sarah “specifically recanted

and disavowed” all of the relevant, probative statements they made to the DSS social

worker.

¶ 49 The trial court’s ultimate conclusion that Jack’s and Sarah’s statements to the

DSS social worker were not trustworthy was “made on the basis of inaccurate and

incomplete findings of fact used to reach unsupported conclusions of law.” Sargeant, STATE V. CORBETT

365 N.C. at 67. After close examination of the record, it is apparent that this

conclusion is “not supported by competent evidence in the record.” Id. at 65. Having

determined that defendants have met their threshold requirement of proving the

trustworthiness of the proffered statements, we conclude that the other factors

enumerated in Valentine also support admitting Jack’s and Sarah’s statements under

the residual exception. The proponents gave proper notice. The substance of Jack’s

and Sarah’s statements were not adequately covered by any other source of evidence.

For reasons more fully explained in the section of this opinion examining prejudice,

Jack’s and Sarah’s statements were material and probative and their admission

serves the interests of justice by enabling Tom and Molly to present an adequate

defense. Accordingly, we conclude that it was an abuse of discretion for the trial court

to exclude the statements that Jack and Sarah made in their interviews with the DSS

social worker under the residual exception to the hearsay rule contained in Rule

803(24).

3. The Expert’s Bloodstain Pattern Analysis

¶ 50 During its case-in-chief, the State presented testimony from Stuart H. James,

qualified as an expert in bloodstain pattern analysis, who offered his opinion about

the location of Tom, Molly, and Jason at various points during the altercation. Most

significantly, James testified that in his opinion the bloodstain patterns located on

Tom’s and Molly’s clothing suggested that one or both of them struck Jason in the STATE V. CORBETT

head as he was descending toward the floor and struck Jason from above while his

head was near the floor. The trial court determined that James’s testimony was

admissible under Rule 702(a). The Court of Appeals reversed, and the State appealed.

¶ 51 To admit expert opinion testimony under Rule 702(a), a trial court must

conduct a three-step inquiry to determine (1) whether the expert is qualified, (2)

whether the testimony is relevant, and (3) whether the testimony is reliable. State v.

McGrady, 368 N.C. 880, 892 (2016). As defined by Rule 702(a), expert opinion

testimony is reliable

if all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case.

N.C.G.S. § 8C-1, Rule 702(a) (2019). In assessing reliability, the trial court considers

the five non-exhaustive factors articulated by the U.S. Supreme Court in Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as well as “other factors that may help

assess reliability given ‘the nature of the issue, the expert’s particular expertise, and

the subject of his testimony.’ ” McGrady, 368 N.C. at 891 (quoting Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 150 (1999)). A trial court’s ruling as to the admissibility of

proffered expert testimony “will not be reversed on appeal absent a showing of abuse

of discretion.” SciGrip, Inc. v. Osae, 373 N.C. 409, 418 (2020) (citing McGrady, 368

N.C. at 893). STATE V. CORBETT

¶ 52 Before this Court, the parties’ sole dispute centers on one portion of James’s

testimony: his testimony that was based upon purported blood spatters found on the

underside of Tom’s boxer shorts and at the bottom of Molly’s pajama pants. The

majority below held that because these purported blood spatters were never tested to

confirm that they were in fact Jason’s blood, in violation of the protocol set out in a

“peer-reviewed treatise” that James himself co-authored, Corbett, 269 N.C. App. at

554, James’s conclusions based on these particular spatters were “based upon

insufficient facts and data, and accordingly, could not have been the product of

reliable principles and methods applied reliably to the facts of this case,” id. at 558.

By contrast, the dissenting judge would have held that defendants waived their

challenge to James’s testimony regarding the untested blood spatters by “fail[ing] to

object to the testimony when it was elicited by the State at trial.” Id. at 609 (Collins,

J., concurring in part and dissenting in part).

¶ 53 The dissenting judge did not address the majority’s conclusions that (1)

admission of the disputed testimony was erroneous and (2) the trial court’s erroneous

admission of this testimony prejudiced defendants. Corbett, 269 N.C. App. at 609 (“As

Defendants did not object when the State elicited the testimony before the jury,

Defendants failed to preserve the alleged error for appellate review.”). Nor did the

State seek discretionary review of these issues. Accordingly, we must restrict our

review of the decision below to the sole issue that divided the majority and the STATE V. CORBETT

dissent, whether or not defendants preserved their challenge to James’s testimony.

See State v. Rankin, 371 N.C. 885, 895 (2018) (when a case “is before this Court based

on a dissent in the Court of Appeals . . . the scope of review is limited to those

questions on which there was division in the intermediate appellate court, and this

Court’s review is properly limited to the single issue addressed in the [Court of

Appeals] dissent” (cleaned up) (alteration in original)).

¶ 54 “In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion.” N.C. R. App. P.

10(a)(1). “To be timely, an objection to the admission of evidence must be made at the

time it is actually introduced at trial.” State v. Ray, 364 N.C. 272, 277 (2010) (cleaned

up). It is correct that although defendants objected to the introduction of the portion

of James’s expert report addressing the untested blood spatters, defendants failed to

again object11 when James testified at trial that

[w]ith respect to the small spatters on the front underside of the left leg of the [boxer] shorts, these were consistent with the wearer of the shorts close to and above the source of the spattered blood. To what extent, I can’t really say. In order for the stains to get to that location on the inside of the leg, they would have to be traveling, you know, at least

11 There is no indication in the record that defendants’ counsel ever requested a continuing objection to the testimony at issue, which is one way that a party may preserve an objection for appellate review. See, e.g., State v. Crawford, 344 N.C. 65, 76 (1996) (“Defense counsel then asked the trial court to permit a ‘continuing objection to any of the testimony here offered.’ The trial court granted defendant’s continuing objection to all of the victim’s hearsay statements.” (citing N.C.G.S. § 15A-1446(d)(10) (1993); Duke Power Co. v. Winebarger, 300 N.C. 57 (1980) (authorizing the use of a continuing objection to a line of questions on the same subject to preserve the objection)). STATE V. CORBETT

somewhat upward in order to do that. My conclusion there was the source of the impact spatters is most likely the head of Jason Corbett while it was close to the floor in the bedroom.

However, we agree with the Court of Appeals that defendants did not waive their

objection to the admissibility of James’s testimony regarding these blood spatters.

The record establishes that “[d]efendants did, in fact, timely object, and did so on

multiple occasions before the jury throughout James's testimony.” Corbett, 269 N.C.

App. at 551. They “immediately objected when the State proffered James's

‘Supplementary Report of Bloodstain Pattern Analysis’ containing his comments and

conclusions concerning, inter alia, Tom's boxer shorts and Molly's pajamas, which

were the subject of Defendants’ objections during voir dire.” Id. The defendants then

renewed their objections prior to James’s second day of direct examination. Id. Thus,

we are persuaded that “[d]efendants properly objected and preserved this issue for

appeal.” Id.

¶ 55 Regardless, we would also hold that defendants’ objection to the admissibility

of this evidence was preserved by operation of law. “In N.C.G.S. § 15A-1446(d) (2017),

the General Assembly enumerated a list of issues it deems appealable without

preservation in the trial court.” State v. Meadows, 371 N.C. 742, 747–48 (2018).

Pursuant to N.C.G.S. § 15A-1446(d)(10), notwithstanding a party’s failure to object

to the admission of evidence at some point at trial, a party may challenge

“[s]ubsequent admission of evidence involving a specified line of questioning when STATE V. CORBETT

there has been an improperly overruled objection to the admission of evidence

involving that line of questioning.” N.C.G.S. § 15A-1446(d)(10) (2019).12 Defendants

objected to testimony based on the purported blood spatters on Tom’s boxer shorts

and Molly’s pajama pants on numerous occasions. Because the dissenting judge did

not dispute the majority’s conclusion that the blood spatter evidence was erroneously

admitted into evidence and because the State did not seek discretionary review of

this issue which was not set forth in the opinion of the dissenting judge, the law of

the case is that the trial court improperly overruled defendants’ objection to this

portion of the blood spatter testimony. See Lanning v. Fieldcrest-Cannon, Inc., 352

N.C. 98, 105 (2000) (when “defendant did not seek, and this Court did not grant,

discretionary review of . . . two issues . . . those issues are not before this Court; and

the determination of the Court of Appeals becomes the law of the case as to those

issues”). Accordingly, we affirm the Court of Appeals’ holding that the objection was

preserved at trial and further by operation of N.C.G.S. § 15A-1446(d)(10), the only

12 In prior cases, we have held some subsections of N.C.G.S. § 15A-1446(d) unconstitutional as violating this Court’s exclusive rulemaking authority. See State v. Meadows, 371 N.C. 742, 748 n.2 (2018) (describing cases holding N.C.G.S. § 15A-1446(d)(5), (6), and (13) unconstitutional). However, we have never held N.C.G.S. § 15A-1446(d)(10) unconstitutional. Because the provision does not “conflict[ ] with specific provisions of our appellate rules rather than the general rule stated in Rule of Appellate Procedure 10(a),” it “operates as a ‘rule or law’ under Rule 10(a)(1), which permits review of this issue.” State v. Mumford, 364 N.C. 394, 403 (2010) STATE V. CORBETT

issue that is properly before this Court.13

4. Tom’s Testimony Regarding Molly’s Statement “Don’t Hurt My Dad”

¶ 56 At trial, Tom testified that after he had been shoved to the ground in the midst

of the altercation with Jason, he heard Molly yell “[d]on’t hurt my dad.” The State

objected to this testimony. The trial court sustained the objection, told the jury to

disregard it, and struck this portion of Tom’s testimony from the record. On appeal,

the majority below concluded that “[t]he trial court erroneously sustained the State’s

objection to Tom’s testimony because Molly’s out-of-court statement was either non-

hearsay, or alternatively, admissible hearsay.” Corbett, 269 N.C. App. at 560. We

agree with the Court of Appeals that Molly’s statement was admissible because it was

relevant non-hearsay.

¶ 57 As explained above, an out-of-court statement introduced to prove the truth of

the matter asserted is only admissible if it falls within an enumerated hearsay

exception. However, “[a]s has been stated by this Court on numerous occasions . . . ,

whenever an extrajudicial statement is offered for a purpose other than proving the

truth of the matter asserted, it is not hearsay.” State v. Maynard, 311 N.C. 1, 15

(1984); see also State v. Kirkman, 293 N.C. 447, 455 (1977) (“The Hearsay Rule does

13 The dissent claims that our consideration of N.C.G.S. § 15A-1446(d)(10) is inappropriate because the parties did not directly argue that their objection to the bloodstain analysis was preserved by operation of the statute. To the extent that the briefing before this Court is deficient on this point, it is possibly because the State failed to argue that defendants had not preserved their objection to the bloodstain analysis at the Court of Appeals. STATE V. CORBETT

not preclude a witness from testifying as to a statement made by another person when

the purpose of the evidence is not to show the truth of such statement . . . .”). Read in

context, it is clear that Tom testified about Molly’s statement not to prove that Jason

was actually about to harm him but to support his contention that he was, at that

moment, subjectively fearful for his and his daughter’s lives. His perception of Molly’s

statement was relevant regardless of the statement’s actual “truth or falsity.”

Valentine, 357 N.C. at 524.14 It was relevant because Tom testified that he heard

Molly speak it, which tended to support his claim that he “reasonably believe[d]” that

his use of deadly force was “necessary to defend himself . . . or another against

[another’s] imminent use of unlawful force” which he reasonably believed would have

resulted in “imminent death or great bodily harm to himself . . . or another.” N.C.G.S.

§ 14-51.3(a) (2019).

¶ 58 Tom’s testimony bolstered his claim that he was subjectively fearful and that

his fear was reasonable, based in part upon his hearing of Molly’s statement. Thus,

14 In fact, Tom’s testimony was relevant regardless of whether or not Molly actually

made this statement or any statement. What matters for the purpose of assessing Tom’s subjective mental state is what Tom thought he heard. It would not matter if Molly had actually said “[d]on’t look so sad.” If what Tom heard in that moment was that he was about to be hurt, it is relevant to whether he “believed it was necessary to kill the deceased in order to save [him]self from death or great bodily harm, and if defendant’s belief was reasonable in that the circumstances as they appeared to [Tom] at the time were sufficient to create such a belief in the mind of a person of ordinary firmness.” State v. Norris, 303 N.C. 526, 530 (1981) (emphasis added). Thus, neither what Molly said nor whether she actually said anything matters for the purpose of this testimony. Rather, Tom is entitled to testify to his subjective belief at the time and what circumstances led him to have that belief. STATE V. CORBETT

his testimony was admissible for the appropriate non-hearsay purpose of

“establish[ing] the state of mind of another person hearing the statement” or to “show

the presence . . . of an emotion which would naturally result from hearing the

statement.” State v. Grier, 51 N.C. App. 209, 214 (1981). While this portion of Tom’s

testimony may have been self-serving, it was for the jury to decide “[t]he weight . . .

to give the[ ] statement[ ] in deciding the issue of defendant’s guilt or innocence

depend[ing] upon” their assessment of Tom’s credibility. Valentine, 357 N.C. at 524–

25. Accordingly, we affirm the Court of Appeals’ holding that the trial court erred by

sustaining the State’s objection to this portion of Tom’s testimony.15

III. Prejudice

¶ 59 Having concluded that the trial court erred by excluding Jack’s and Sarah’s

statements, by striking a portion of Tom’s testimony, and by admitting certain expert

witness testimony concerning alleged blood spatters on Tom’s and Molly’s clothing,

we must determine whether defendants were prejudiced thereby. “To establish

prejudice based on evidentiary rulings, defendant bears the burden of showing that

a reasonable possibility exists that, absent the error, a different result would have

been reached.” State v. Lynch, 340 N.C. 435, 458 (1995); see also N.C.G.S. § 15A-1443

15 In the alternative, we agree with defendants that the statement, if hearsay, fell

within the “excited utterance” exception to the hearsay rule, which provides that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is admissible. N.C.G.S. § 8C-1, Rule 803(2) (2019). STATE V. CORBETT

(2019). An evidentiary error may be prejudicial on its own, but “should this Court

conclude that no single error identified [at trial] was prejudicial, the cumulative effect

of the errors nevertheless [may be] sufficiently prejudicial to require a new trial.”

State v. Wilkerson, 363 N.C. 382, 426 (2009). A new trial is warranted if the errors,

either individually or “taken as a whole, deprived defendant of his due process right

to a fair trial free from prejudicial error.” State v. Canady, 355 N.C. 242, 254 (2002).

Thus, even if we conclude that one evidentiary error, standing alone, is not itself

prejudicial, we are still required to consider whether that error contributed to

prejudice in the aggregate.

¶ 60 Here, the trial court’s erroneous exclusion of Jack’s and Sarah’s testimony

meaningfully deprived defendants of the opportunity to support their self-defense

claim in several ways. This error was prejudicial for three reasons.

¶ 61 First, Jack’s statement explaining the presence of the brick paver would have

provided a non-culpable justification for why one of the defendants possessed one of

the alleged murder weapons. We agree with the majority below that the State

“benefited from the unexplained presence of one of two potential murder weapons in

the master bedroom, and in fact, raised this very question during its opening

statement.” Corbett, 269 N.C. App. at 577 (emphasis omitted). Absent explanation,

Molly’s possession of the alleged murder weapon at the scene of the killing—a place

where her possession of the murder weapon would otherwise have been highly STATE V. CORBETT

unusual—naturally gave rise to the inference that Molly did not act in self-defense.

¶ 62 Second, Sarah’s statement describing her nightmare and her entry into the

master bedroom provided compelling firsthand evidence supporting defendants’

account of how the altercation began. Her statement confirmed that the altercation

had a precipitating cause besides the actions of either defendant and that Jason was

angry when the altercation began.

¶ 63 Third, we agree with the Court of Appeals that Jack’s and Sarah’s statements

regarding Jason’s worsening anger and their characterization of Jason and Molly’s

relationship “would have corroborated and provided significant context for the

written statement that Molly provided at the Davidson County Sheriff’s Office on 2

August 2015.” Corbett, 269 N.C. App. at 578. The jury would have been presented

with evidence which filled crucial gaps in Molly’s statement, most notably why she

had a brick paver within arm’s reach in her bedroom and why she felt the need to use

it under the circumstances as she perceived them.

¶ 64 Without evidence supporting their account of the circumstances leading up to

the tragic events of 2 August 2015, it was easier for the jury to conclude that Tom

and Molly had invented their story in an effort to cover up their crime and falsely

assert that they acted in self-defense. There is a reasonable possibility that the

outcome would have been different if the jury had been presented with admissible

evidence providing a non-culpable justification for Molly’s possession of a possible STATE V. CORBETT

murder weapon, the brick paver; offering a corroborative description of why the

altercation began, because Jason was angry at being awoken by Sarah, which placed

Molly in the position of a victim from the outset and evidence of important relevant

information about the nature of Jason and Molly’s relationship in the weeks and

months leading up to this incident. Indeed, as the Court of Appeals recounted, the

jury foreman explained that “how and why the paver made it into the home was the

#1 question that was talked about when deliberations started.’ ” Corbett, 269 N.C.

App. at 578 (cleaned up) (emphasis omitted). Further, Jack’s and Sarah’s testimony

also would have corroborated Jason’s medical records, which contained his admission

that he had been feeling “more stressed and angry lately for no reason.” This

corroborative evidence would have provided important context to the jury as it

considered how the altercation began, what state of mind Molly possessed during the

altercation, and whether that state of mind is reasonable. A different outcome might

reasonably have occurred at trial had the jury been provided with evidence tending

to show that Jason was frequently angry and experiencing increased anger over

recent months and that Jason and Molly had been awakened that night in a manner

known previously to have caused discord in their relationship.

¶ 65 On the other hand, the trial court’s erroneous exclusion of Tom’s testimony

regarding his perception of Molly’s statement “[d]on’t hurt my dad” was not by itself

sufficiently prejudicial to either Tom or Molly as to warrant a new trial. This STATE V. CORBETT

testimony undoubtedly supported defendants’ self-defense claim, in that it tended to

corroborate Tom’s testimony that he was subjectively fearful during the altercation

and that his fear was reasonable. However, in this case, the prejudicial impact of

excluding Tom’s testimony was limited because this testimony was largely

duplicative of other testimony that was admitted into evidence tending to establish

his state of mind. Apart from the stricken testimony, Tom was permitted to testify at

length and in significant detail about the circumstances of the altercation. Just before

the stricken testimony, he stated “if I can get any more afraid, that was it. I can’t see

[Jason]. It’s dark in the bedroom. I’m thinking the next thing is going to be a bat in

the back of the head.” He also testified that around the time he heard Molly yell,

Jason shoved him to the ground, he lost his glasses, and he saw Molly trapped

between Jason and the wall with Jason appearing poised to strike Molly with the

baseball bat. This testimony amply supported Tom’s claim that he was fearful and

that his fear was reasonable. Although we cannot say the trial court’s exclusion of his

testimony had no effect on the jury’s deliberations, this error standing alone was not

significant enough to establish prejudice sufficient to warrant a new trial. However,

we still consider this error in combination with other evidentiary errors that occurred

during the trial to determine if the errors, in the aggregate, were prejudicial.

¶ 66 In that regard, it is significant that the trial court’s errors in excluding

evidence offered by defendants limited defendants in their ability to counter the STATE V. CORBETT

State’s contention that they did not act in self-defense. In order to convict a defendant

of second-degree murder in the presence of evidence of heat of passion or self-defense,

“the [S]tate must prove beyond a reasonable doubt that defendant did not act in heat

of passion and in self-defense in order to prove the existence of malice and

unlawfulness, respectively.” State v. Marley, 321 N.C. 415, 420 (1988). Evidence

which tended to show that defendants both subjectively feared imminent death or

substantial bodily harm and that their fear was reasonable at the time they used

deadly force was extremely salient to the resolution of this question. See, e.g., State

v. Williams, 342 N.C. 869, 872–73 (1996) (describing the subjective and objective

components of the defense of perfect self-defense). In addition, as the Court of Appeals

explained, the erroneous admission of the blood-spatter testimony also undercut

defendants’ self-defense argument by “bolstering the State’s claim that Jason was

struck after and while he was down and defenseless.” Corbett, 269 N.C. App. at 559.16

In the present case, these errors together imposed a significant constraint on

defendants’ efforts to establish a crucial fact: namely, their state of mind at the time

of the events in question based on all of the circumstances known to them.

¶ 67 We have long held that when a defendant has claimed self-defense, “a jury

16 Additionally, because the only issue before us on the issue of the expert’s bloodstain

testimony was whether the objection was properly preserved, and by statute we necessarily must conclude that it was, the Court of Appeals ruling that the testimony was improperly admitted and prejudicial stands as an alternative ground requiring a new trial. STATE V. CORBETT

should, as far as is possible, be placed in defendant’s situation and possess the same

knowledge of danger and the same necessity for action, in order to decide if defendant

acted under reasonable apprehension of danger to his person or his life.” State v.

Johnson, 270 N.C. 215, 219 (1967). In this case, “[i]f defendant[s] had been able to

present the excluded testimony, [they] might have been able to convince the jury that

[they used deadly force] while under a reasonable belief that it was necessary to do

so in order to save [themselves] from death or great bodily harm.” State v. Webster,

324 N.C. 385, 393 (1989). “Thus, there is a reasonable possibility that, had the error

not been committed, a different result would have been reached at trial.” Id.

Accordingly, we affirm the decision of the Court of Appeals concluding that the trial

court committed prejudicial evidentiary errors.

IV. Conclusion

¶ 68 The events of 2 August 2015 which led to Jason Corbett’s untimely death were

tragic. Our system of laws assigns to the jury in this case the onerous responsibility

of examining the evidence and determining if Tom Martens and Molly Corbett were

guilty of second-degree murder or if the homicide was justified self-defense necessary

to save them from serious bodily harm or death. However, it is the responsibility of

the courts, including this Court, to ensure that both the State and criminal

defendants are afforded the opportunity to fully and fairly present their cases. Here,

Tom’s and Molly’s sole defense to the charges levelled against them was that their STATE V. CORBETT

use of deadly force was legally justified. By erroneously excluding admissible

testimony which was relevant to the central question presented to the jury, the trial

court impermissibly constrained defendants’ ability to mount their defense. On these

facts, we conclude that “[a]s a matter of fundamental fairness, the exclusion of [Jack’s

and Sarah’s] statement[s] deprived the jury of evidence that was relevant and

material to its role as finder of fact.” Sargeant, 365 N.C. at 68. Similarly, the jury was

erroneously instructed to disregard testimony supporting the conclusion that Tom

was fearful of being seriously injured or killed. Therefore, we agree with the majority

below that “this is the rare case in which certain evidentiary errors, alone and in the

aggregate, were so prejudicial as to inhibit Defendants’ ability to present a full and

meaningful defense.” Corbett, 269 N.C. App. at 512. Accordingly, we affirm.

AFFIRMED. Justice BERGER dissenting.

¶ 69 The analysis by the majority contains three fundamental flaws. Concerning

preservation, the majority creates an argument for defendants. In addition,

throughout the opinion, the majority reweighs the evidence. Finally, and perhaps

most remarkably, the majority engages in a de novo analysis of issues which should

be reviewed for an abuse of discretion. Because defendants “receive[d] ‘a fair trial,

free of prejudicial error,’ ” State v. Malachi, 371 N.C. 719, 733, 821 S.E.2d 407, 418

(2018) (quoting State v. Ligon, 332 N.C. 224, 243, 420 S.E.2d 136, 147 (1992)), the

trial court’s judgments should be affirmed. Therefore, I respectfully dissent.

I. Preservation

¶ 70 Rules concerning preservation not only establish a framework for appellate

review but also provide parties and trial courts with the opportunity to clarify

arguments, frame issues, and correct errors at trial. As a matter of judicial economy,

the trial court can ask for additional arguments from the parties, sustain objections,

and give necessary curative instructions during trial, allowing for a better

understanding of the arguments and issues presented in the case. See State v. Oliver,

309 N.C. 326, 334, 307 S.E.2d 304, 311 (1983) (“Rule 10 functions as an important

vehicle to insure that errors are not ‘built into’ the record, thereby causing

unnecessary appellate review.”). This allows trial courts to correct errors on the front

end, rather than engaging in needless after-the-fact appeals. See generally State v. STATE V. CORBETT

Berger, J., dissenting

Bursell, 372 N.C. 196, 199, 827 S.E.2d 302, 305 (2019) (“[Rule 10] prevents

unnecessary retrials by calling possible error to the attention of the trial court so that

the presiding judge may take corrective action if it is required.”).

¶ 71 “In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion . . . .” N.C. R. App.

P. Rule 10(a)(1). “To be timely, an objection to the admission of evidence must be

made ‘at the time it is actually introduced at trial.’ ” State v. Ray, 364 N.C. 272, 277,

697 S.E.2d 319, 322 (2010) (quoting State v. Thibodeaux, 352 N.C. 570, 581, 532

S.E.2d 797, 806 (2000)). “[T]he Rules of Appellate Procedure must be consistently

applied; otherwise, the Rules become meaningless, and an appellee is left without

notice of the basis upon which an appellate court might rule.” Viar v. N.C. Dep’t of

Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).

¶ 72 Defendants’ argument regarding the evidence of the blood stain on defendant

Martens’s boxer shorts was not preserved. The parties did not argue in their briefs

or at oral argument that N.C.G.S. § 15A-1446(d)(10) was the vehicle through which

this issue was preserved. Moreover, neither the Court of Appeals majority, nor the

dissent, referenced this statute. However, the majority finds preservation by

operation of N.C.G.S. § 15A-1446(d)(10).

¶ 73 It is troubling that the majority impermissibly creates an argument for

defendants given the lack of briefing and argument by the parties. It is particularly STATE V. CORBETT

troubling that the majority does so utilizing a statute that this Court has, in part,

declared unconstitutional where it conflicts with our appellate rules. See State v.

Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010) (stating that provisions of

subsection 15A–1446(d) have been declared unconstitutional where those provisions

“conflicted with specific provisions of our appellate rules rather than the general rule

stated in Rule of Appellate Procedure 10(a)”).

¶ 74 During voir dire, defendants objected to the reliability of the conclusion of the

State’s blood spatter expert, Stuart James, that the stains on defendant Martens’s

boxer shorts were impact blood spatter arising from blunt force strikes to Jason’s

head while he was on the ground. The trial court overruled defendants’ objections.

¶ 75 At trial, Stuart James testified without objection as follows:

With respect to the small spatters on the front underside of the left leg of the shorts, these were consistent with the wearer of the shorts close to and above the source of the spattered blood. To what extent, I can’t really say. In order for the stains to get to that location on the inside of the leg, they would have to be traveling, you know, at least somewhat upward in order to do that. My conclusion there was the source of the impact spatters is most likely the head of Jason Corbett while it was close to the floor in the bedroom.

¶ 76 Defendants failed to renew their objections to this testimony at trial, and the

majority acknowledges that “[t]here is no indication in the record that defendants’

counsel ever requested a continuing objection to the testimony at issue . . . .” As

defendants did not object when the State elicited the testimony before the jury, STATE V. CORBETT

defendants failed to preserve the alleged error for appellate review. See State v.

Snead, 368 N.C. 811, 816, 783 S.E.2d 733, 737 (2016) (“An objection made ‘only during

a hearing out of the jury’s presence prior to the actual introduction of the testimony’

is insufficient.” (quoting Ray, 364 N.C. at 277, 697 S.E.2d at 322)).

¶ 77 In relying on N.C.G.S. § 15A-1446(d)(10), the majority impermissibly creates

an avenue for preservation that was not addressed, briefed, or argued. The majority’s

argument is a departure from our Rule 10 jurisprudence, and rests on questionable

constitutional grounds.

¶ 78 Moreover, defendants were not prejudiced by the admission of testimony

concerning one drop of untested blood due to the extensive amount of blood and blood

spatter evidence that was admitted without objection. The State introduced without

objection additional blood spatter evidence that Jason was struck when his head was

close to the ground. Regarding the blood stains on the walls, Stuart James testified

without objection that “the[ ] patterns are consistent with impacts to the head of

[Jason] as he was descending to the floor[,]” that some of the impacts were “24 to 28

inches above the floor . . . [i]t went from five feet down to 24 to 28 inches[,]” and that

the other impacts were “[a]pproximately 5 to 16 inches [from the floor] . . . [s]o that’s

what I meant by descending succession of impacts.” Stuart James further testified

that there were “impact spatters on the underside of the folded-back quilt” on the

bottom of the bed in the master bedroom. STATE V. CORBETT

¶ 79 Additionally, defendant Martens testified, “[a]nd so I hit [Jason]. And I hit him

until he goes down. And then I step away. . . . I hit him until I thought that he could

not kill me.” To this point, Stuart James’s testimony corroborates defendant

Martens’s testimony when he stated, “[a]nd if you would take those [untested stains]

away, it really doesn’t change much of my opinion. It is still impact spatter with the

wearer of the shorts in proximity with the source of the blood.”

¶ 80 Defendants’ failure to object may have been a trial strategy. Defendants may

not have wanted to draw additional attention to the overwhelming amount of blood

and blood-related evidence associated with Jason’s brutal death. Whatever their

reason, given the admission of other blood evidence showing that Jason was struck

while close to or near the ground, defendants certainly were not prejudiced by the

admission of the blood spatter testimony relating to defendant Martens’s boxer

shorts.

II. Hearsay Statements

¶ 81 This Court has recognized that, “[t]he competency, admissibility, and

sufficiency of the evidence is a matter for the [trial] court to determine.” In re Lucks,

369 N.C. 222, 228, 794 S.E.2d 501, 506 (2016) (second alteration in original) (quoting

Queen City Coach Co. v. Lee, 218 N.C. 320, 323, 11 S.E.2d 341, 343 (1940)). Because

our case law regarding the standard of review applicable to a ruling on whether

evidence is admissible under Rule 803(4) is nonexistent, we can look to the federal STATE V. CORBETT

rules for guidance. See State v. Wilson, 322 N.C. 117, 132, 367 S.E.2d 589, 598 (1988)

(“Since the case law concerning collateral statements under this rule of evidence in

this State is negligible, we shall look to the federal courts for guidance on this point

in interpreting its federal counterpart.”).1 Rule 803(4) of the North Carolina Rules of

Evidence is similar to its federal counterpart. Compare N.C.G.S. § 8C-1, Rule 803(4)

(2019), with Fed. R. Evid. 803(4). See Roberts v. Hollocher, 664 F.2d 200, 204 (8th

1 Federal courts also recognize that evidentiary rules and those regarding hearsay are

typically reviewed for abuse of discretion. See, e.g., United States v. Earth, 984 F.3d 1289, 1294 (8th Cir. 2021) (“We review a district court’s rulings regarding the admission of hearsay evidence for an abuse of discretion.”); United States v. Lovato, 950 F.3d 1337, 1341 (10th Cir. 2020) (“We review the district court’s evidentiary rulings for an abuse of discretion, considering the record as a whole. Because hearsay determinations are particularly fact and case specific, we afford heightened deference to the district court when evaluating hearsay objections.”(citations omitted)); United States v. Slatten, 865 F.3d 767, 805 (D.C. Cir. 2017) (“Ordinarily, the Court reviews the exclusion of a hearsay statement under the abuse of discretion standard.”); United States v. Ferrell, 816 F.3d 433, 438 (7th Cir. 2015) (“To reverse a district court’s decision on the admissibility of hearsay statements, we must conclude that the district court abused its discretion.”); United States v. Amador-Huggins, 799 F.3d 124, 132 (1st Cir. 2015) (“The parties agree that our review of how the district court applied the hearsay rules to these facts is for abuse of discretion.”); United States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011) (“We review a trial court’s rulings on the admissibility of evidence for abuse of discretion, and we will only overturn an evidentiary ruling that is ‘arbitrary and irrational.’ ”); United States v. Santos, 589 F.3d 759, 763 (5th Cir. 2009) (“We review evidentiary rulings for abuse of discretion.”); United States v. Price, 458 F.3d 202, 205 (3d Cir. 2006) (“Whether a statement is hearsay is a legal question subject to plenary review. If the district court correctly classifies a statement as hearsay, its application of the relevant hearsay exceptions is subject to review for abuse of discretion.” (citations omitted)); United States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006) (“We review a district court’s hearsay ruling for abuse of discretion.”); United States v. Wright, 343 F.3d 849, 865 (6th Cir. 2003) (“All evidentiary rulings, including hearsay, are reviewed for abuse of discretion.”); United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003) (“We review for an abuse of discretion the district court’s evidentiary rulings during trial, including the exclusion of evidence under the hearsay rule.”); United States v. Forrester, 60 F.3d 52, 59 (2d Cir. 1995) (“[A]n application of the rules concerning hearsay is reviewed for the abuse of discretion.”). STATE V. CORBETT

Cir. 1981) (Federal Rule of Evidence 803(4) excepts from the hearsay rule

“[s]tatements 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”).

¶ 82 The majority relies on State v. Norman, 196 N.C. App. 779, 783, 675 S.E.2d

395, 399 (2009), for the proposition that a ruling on whether evidence is admissible

under Rule 803(4) is reviewed de novo. However, Norman is not binding precedent

on this Court. See N. Nat’l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62, 76,

316 S.E.2d 256, 265 (1984) (“This Court is not bound by precedents established by the

Court of Appeals.”). The Norman decision rests on a questionable interpretation of

the standard of review utilized by this Court in Hinnant. A review of Hinnant shows

that this Court did not state the standard it used to review the Rule 803(4) issues

before it. Because this Court has never expressly established a standard of review

under Rule 803(4), the plethora of federal hearsay jurisprudence is more persuasive

than a single statement in Norman.2 Accordingly, review of the admissibility of

evidence under Rule 803(4) should be for an abuse of discretion.

2 The majority further cites to State v. Jones, 339 N.C. 114, 146 (1994) and State v.

Stafford, 317 N.C. 568, 571 (1986) for the proposition that this Court routinely reviews Rule 803(4) determinations de novo. This Court has never expressly stated the standard of review used to analyze Rule 803(4) issues. The majority acknowledges that this Court has never STATE V. CORBETT

¶ 83 Rule 803(4) excepts from the general rule against hearsay

[s]tatements 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.

N.C.G.S. § 8C-1, Rule 803(4). “This exception to the hearsay doctrine was created

because of a ‘patient’s strong motivation to be truthful’ when making statements for

the purposes of medical diagnosis or treatment.” State v. Lewis, 172 N.C. App. 97,

103, 616 S.E.2d 1, 4–5 (2005) (citing N.C.G.S. § 8C-1, Rule 803(4) official commentary

(2003)).

Rule 803(4) requires a two-part inquiry: (1) whether the declarant’s statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant’s statements were reasonably pertinent to diagnosis or treatment.

Hinnant, 351 N.C. at 284, 523 S.E.2d at 667. “[T]he proponent of Rule 803(4)

testimony must affirmatively establish that the declarant had the requisite intent by

demonstrating that the declarant made the statements understanding that they

would lead to medical diagnosis or treatment.” Id. at 287, 523 S.E.2d at 669. To

determine whether a child’s statements are admissible under this exception, “the trial

court should consider all objective circumstances of record surrounding [the]

“explicitly elaborated at length” our standard of review under 803(4). After review of the cases cited by the majority, it cannot be said that “our opinions interpreting Rule 803(4) establish that the Court has routinely reviewed these decisions de novo . . . .” STATE V. CORBETT

declarant’s statements in determining whether he or she possessed the requisite

intent under Rule 803(4).” Id. at 288, 523 S.E.2d at 670.

¶ 84 At trial, Brandi Reagan, executive director of the Dragonfly House, explained

that when a child arrives at the Dragonfly House for an appointment, the child is met

by a child advocate who “talks with th[e] nonoffending caregiver and the child about

. . . people they are going to meet, every service they are going to receive[,] and what

would happen at the end of the appointment.” Heydy Day, the child advocate in this

case, testified, “I start off talking to the child and the caregiver saying, ‘you will be

talking with one of my friends today,’ whether that’s our interviewer Kim or

interviewer Brandi, you will be talking to that lady.” She testified that she would tell

the children, “Once you finish talking with Miss Kim or Miss Brandi and the doctor

finishes talking with the caregiver, then the doctor will call you back to do a head to

toe check-up of you.” Additionally, Reagan testified that interviews at the Dragonfly

House took place in bedrooms to create a “child-friendly” interview room, rather than

in the medical examination room.

¶ 85 When asked if he knew why he was at the Dragonfly House, Jack responded

that he was there because “people are trying” to take him away from his mom. When

asked who told him that, he responded “[m]y mom.” When Sarah was asked if she

knew why she was at the Dragonfly House, she responded, “[b]ecause my dad died.” STATE V. CORBETT

¶ 86 The trial court determined the statements at issue did not qualify as

statements for the purposes of the medical diagnosis or treatment exception because

the trial court found that the children thought the interview was about custody. The

trial court made appropriate findings of fact and weighed factors when it determined

that the circumstances surrounding the interviews did not indicate that either child

understood that the interviews were for the purpose of medical diagnosis or

treatment. The declarants stated that they were present at the Dragonfly House

either because their dad died or because of some issue relating to custody. The

children did not respond with an answer focusing on their physical or emotional well-

being. Based on these statements, the trial court reasonably concluded that the

statements were not made for the purpose of medical diagnosis or treatment. See

Hinnant, 351 N.C. at 284, 523 S.E.2d at 667–68.

¶ 87 It is important to acknowledge that the trial court could have admitted the

children’s statements into evidence. While reasonable minds can differ on the

admissibility of this evidence, we cannot say that the trial court abused its discretion.

“The purpose of standards of review is to focus reviewing courts upon their proper

role when passing on the conduct of other decision-makers. Standards of review are

thus an elemental expression of judicial restraint, which, in their deferential

varieties, safeguard the superior vantage points of those entrusted with primary

decisional responsibility.” Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d STATE V. CORBETT

315, 320–21 (4th Cir. 2008). The majority’s de novo review does away with the

fundamental safeguards that are available to all litigants when the primary

decisional responsibility of the trial court is respected and maintained. See United

States v. Charboneau, 914 F.3d 906, 912 (4th Cir. 2019). Our inquiry should be

limited to whether the trial court’s decision to exclude the statements was “manifestly

unsupported by reason.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833

(1985). Based upon the record in this case, the trial court did not abuse its discretion

when it excluded the children’s statements under Rule 803(4).

¶ 88 Similarly, the trial court did not abuse its discretion when it determined that

the children’s statements did not meet the requirements of the residual hearsay

exception.

¶ 89 The residual hearsay exception is disfavored and should be invoked “very

rarely, and only in exceptional circumstances.” State v. Smith, 315 N.C. 76, 91 n.4,

337 S.E.2d 833, 844 n.4 (1985) (citation omitted). A trial court’s determination of

whether to admit statements under Rule 803(24) is reviewed for an abuse of

discretion. Id. at 97, 337 S.E.2d at 847. As stated above, “[a] trial court may be

reversed for abuse of discretion only upon a showing that its actions are manifestly

unsupported by reason.” White, 312 N.C. at 777, 324 S.E.2d at 833.

¶ 90 The trial court “must enter appropriate statements, rationale, or findings of

fact and conclusions of law . . . in the record to support [its] discretionary decision[,]” STATE V. CORBETT

Smith, 315 N.C. at 97, 337 S.E.2d at 847, to allow “a reviewing court to determine

whether the trial court abused its discretion in making its ruling,” State v. Sargeant,

365 N.C. 58, 65, 707 S.E.2d 192, 196 (2011). Moreover, “evidence proffered for

admission pursuant to . . . Rule 803(24) . . . must be carefully scrutinized by the trial

judge within the framework of the rule’s requirements.” Smith, 315 N.C. at 92, 337

S.E.2d at 844.

Under either of the two residual exceptions to the hearsay rule, the trial court must determine the following: (1) whether proper notice has been given, (2) whether the hearsay is not specifically covered elsewhere, (3) whether the statement is trustworthy, (4) whether the statement is material, (5) whether the statement is more probative on the issue than any other evidence which the proponent can procure through reasonable efforts, and (6) whether the interests of justice will be best served by admission.

State v. Valentine, 357 N.C. 512, 518, 591 S.E.2d 846, 852 (2003) (citation omitted).

The sole issue here concerns whether the children’s statements were trustworthy.

¶ 91 In determining whether a statement under Rule 803(24) is “trustworthy,” this

Court has identified the following factors to consider:

(1) assurance of personal knowledge of the declarant of the underlying event; (2) the declarant’s motivation to speak the truth or otherwise; (3) whether the declarant ever recanted the testimony; and (4) the practical availability of the declarant at trial for meaningful cross-examination.

Smith, 315 N.C. at 93–94, 337 S.E.2d at 845 (citations omitted). “[I]f the trial judge

examines the circumstances and determines that the proffered testimony does not STATE V. CORBETT

meet the trustworthiness requirement, his inquiry must cease upon his entry into the

record of his findings and conclusions, and the testimony may not be admitted

pursuant to Rule 803(24).” Id. at 94, 337 S.E.2d at 845.

¶ 92 The trial court made the following relevant findings of fact relating to the

children’s statements:

15. The children’s statements did not describe actual knowledge of the events surrounding the homicide of Jason Corbett. Jack identified the source of the information in his statements by saying “my mom told me” and “she (defendant Molly Corbett) told us.” Sarah similarly described the source of her knowledge, saying the [sic] her grandmother “told [me] first and then her mother [told me].” When speaking of her “grandmother,” Sarah was referring to the mother of defendant Molly Corbett and the wife of defendant Thomas Martens.

20. The statements of the children which the defense proffers were not made out of the personal knowledge of the declarant children but are instead double hearsay[3] declarations of the defendant Molly Corbett and her mother.

21. These same statements were not made at a time when the children were motivated to speak the truth but were rather motivated to affect future custody

3 The majority does not address the issue of double hearsay.In addition, the majority gives no direction to the trial court on which statements are admissible and which are not. Furthermore, the majority does not address the trial court’s discretion to exclude this evidence under Rule 403 regardless of its admissibility under Rule 803(24). See N.C.G.S. § 8C-1, Rule 403 (2019) (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”). STATE V. CORBETT

arrangements—specifically the children feared that they were going to be “taken away from their mother” and removed to another country by their father’s relatives.

22. The statements of the children that are offered by the defense as pertinent to the relationship between Molly Corbett and Jason Corbett have been specifically recanted. Sarah Corbett, the younger of the two children, recanted her statements in diary entries made after her return to Ireland. Jack Corbett recanted his statements in diary entries and during a recorded interview with members of the District Attorney’s Office.

¶ 93 With regard to finding of fact 15, that the statements did not describe the

homicide, there is no evidence that the children witnessed the homicide of Jason.

Jack was asleep that night and did not wake up until law enforcement came into his

room, and Sarah was documented saying that “at night she was sleeping and an

officer came upstairs around 4 AM and took her downstairs to her grandma.” Her

mom told her that someone got hurt and later told her that her dad died.

¶ 94 As to finding of fact 20, that the statements were not made with personal

knowledge, the Dragonfly House’s Medical Services Log for Sarah states that “Sarah

does not disclose witnessing [domestic violence].” When asked if Sarah saw Jason

hurt Molly, Sarah said, “No, not really ever, but one time I saw him step on her foot.”

Reagan followed up by asking, “So when you said that he would fight with her and he

would hurt her, you said you didn’t really see it, how would you know about it?” Sarah

responded, “Because, um, my mom told me.” Further, the DSS social worker’s notes STATE V. CORBETT

stated, “Sarah states her father screams and yells and states when her mom and dad

goes into the room her dad hurts her mom. She stated her mom told her.”

¶ 95 When Reagan asked Jack, “How did your dad die?” Jack responded:

Okay. Well, my sister had a nightmare about insect crawling—she had fairy blankets and insects all over her bed. That was a nightmare, though. And my dad got very mad, and he was screaming at our mom, and my mom screamed, and my grandpa came up and started to hit him with a bat. And then my dad grabbed hold of the bat— grabbed—held the bat and hit my grandpa with the bat, until my mom put a—put—we were going to paint a brick that was in there, like a cinder block, and it hit his temple, right here, and he died.

When Reagan asked, “now you said your sister had a nightmare. How did you know

that?” Jack responded, “My parents—my mom told me.” When asked to recount

details about Jason’s behavior, Jack admitted he “[didn’t] actually remember[,]” or

stated that he knew because his mom or grandma told him. Lastly, Reagan asked,

“[a]nd just to make sure I understand, how did you find out that your mom hit [your

dad] with a brick and your grandpa hit him with a bat?” Jack responded, “She told

me.”

¶ 96 The record demonstrates that there was evidence to support the trial court’s

findings of fact 15 and 20 because the children’s statements were not made with

“actual knowledge of the events surrounding the homicide of Jason” and “were not

made out of the personal knowledge of the declarant children.” Moreover, finding of

fact 21 was supported by Sarah’s exchange at Dragonfly House. When Sarah was STATE V. CORBETT

asked, “Tell me why you’re here today[,]” she responded, “Because my dad died.”

Sarah stated, “I actually heard people talk about my aunt trying to come get us, trying

to come get me and my brother. Like, and she (indiscernible) right now and

(indiscernible). And that’s why at the funeral, I had to (indiscernible) my mother—

my mom’s hand the whole time.” In addition, Jack stated, “my dad died, and people

are trying—my aunt and uncle from my dad’s side are trying to take away—take me

away from my mom. And—that’s why I’m here. My mom’s trying to get custody over

us.”

¶ 97 Further, finding of fact 22, that the statements were recanted, is supported by

Jack’s Skype interview from Ireland and copies of diary entries written by Sarah and

Jack. Jack recanted his earlier statements and stated, “I didn’t tell the truth at

Dragonfly. I didn’t tell the truth [during the DSS Interview].” Sarah’s diary entries

include statements that defendant Corbett had instructed the children to say that

Jason hit and yelled at defendant Corbett and that defendant Corbett told Sarah that

Jason had killed Sarah’s mom by putting a pillow over her mouth. This evidence

supports the trial court’s determination that the children’s statements concerning the

relationship between defendant Corbett and Jason had “been specifically recanted.”

¶ 98 Given the findings of fact, the trial court’s conclusion that “[t]he proffered

statements do not have circumstantial guarantees of trustworthiness” was not an

abuse of discretion. In addition, under Rule 104(a) the trial court was entitled to STATE V. CORBETT

consider the children’s recantations in determining whether to admit the children’s

statements into evidence under the residual hearsay exception. See N.C.G.S. § 8C-1,

Rule 104(a) (2019) (“Preliminary questions concerning the qualification of a person to

be a witness, the existence of a privilege, or the admissibility of evidence shall be

determined by the court . . . .”). Further, the majority acknowledged the trial court’s

gatekeeping function stating, “the trial court was entitled to consider Jack’s Skype

interview and Sarah’s diary entries, regardless of whether either would ultimately

have been deemed admissible evidence, in making a preliminary determination

regarding the admissibility of the Dragonfly House interview and DSS interviews.”

Here, the trial court entered “appropriate statements, rationale, or findings of fact

and conclusions of law [ ] in the record to support his discretionary decision[.]” Smith,

315 N.C. at 97, 337 S.E.2d at 847.

¶ 99 There is support in the record for the trial court’s determination that the

statements “were not made at a time when the children were motivated to speak the

truth but were rather motivated to affect future custody arrangements.” Therefore,

the trial court’s determination that the children’s statements were not admissible

under the residual exception was not “manifestly unsupported by reason.” White, 312

N.C. at 777, 324 S.E.2d at 833.

¶ 100 Even if we assume the trial court erred when it excluded the children’s

statements, defendants have not shown that they were prejudiced. It is STATE V. CORBETT

uncontroverted that defendants killed Jason. The question for the jury was whether

defendants’ killing of Jason was justified.

¶ 101 The autopsy report stated that Jason died of blunt force trauma to the head.

Jason sustained “[e]xtensive skull fractures” from “multiple blunt force impact sites

of the head.” According to the medical examiner, Jason’s injuries “included ten

different areas of impact on the head, at least two of which had features suggesting

repeated blows indicating a minimum of 12 different blows to the head.” The medical

examiner testified that an injury on the right side of Jason’s head was caused by an

object with a sharp edge not consistent with a baseball bat. In addition, Jason had a

broken nose and blunt force injuries to his torso, left hand, and legs.

¶ 102 Defendant Martens testified that he first “hit [Jason] in the head, the back of

the head with the baseball bat,” but the blow did not stop Jason. Defendant Martens

then “tried to hit [Jason] as many times as [he] could to distract [Jason]” in the

hallway. According to defendant Martens, he had struck Jason at least two times in

the back of the head with the aluminum baseball bat at this point in the altercation.

After coming back down the hallway, Jason and defendant Martens struggled over

the bat. Jason obtained control of the bat and pushed defendant Martens over the

bed and onto the floor. Defendant Martens eventually regained control of the bat and

struck Jason again. Defendant Martens then testified, “just because [Jason] lost

control of the bat doesn’t mean this is over. This was far from over. . . . And so I still STATE V. CORBETT

think that, you know, he has the advantage even though—‘cause I know what I’m

feeling like. I’m shaking. I’m not doing good now. And so I hit him. And I hit him

until he goes down.” Defendant Martens admitted that he beat Jason with the

aluminum bat until he was no longer moving.

¶ 103 Defendant Martens gave a statement to authorities and testified that he had

no knowledge of the brick paver or that the brick paver was used to kill Jason.

However, the State’s evidence showed that defendant Corbett provided a statement

to detectives admitting that she struck Jason with the brick paver. The brick paver

had hair fragments and blood stains which were consistent with multiple impacts to

Jason’s head. Based on defendant Martens’s testimony and defendant Corbett’s

statement to law enforcement, defendant Corbett could not have struck Jason with

the brick paver until after she broke away from his initial assault.

¶ 104 The jury heard this evidence, and defendants had the opportunity to argue this

evidence and the issue of self-defense to the jury. Even assuming the children’s

statements were admissible, defendants have failed to show how these statements

have any bearing on whether they were justified in killing Jason. While the children’s

statements highlight past incidents of alleged domestic abuse, the jury heard

defendant Martens’s testimony that Jason was abusing defendant Corbett that night

in the bedroom. The jury was also able to consider defendant Corbett’s statement to STATE V. CORBETT

law enforcement that Jason was choking her before defendant Martens hit Jason with

the aluminum baseball bat.

¶ 105 At the same time, the jury heard evidence that Jason’s body “felt cool” and

there was “dry blood on him” indicating he had been there for some time before

paramedics arrived. The jury also heard evidence that the blood spatter indicated

that Jason was struck at or near the ground; that defendant Martens “hit [Jason]

until he went down”; and that neither defendant had any visible injuries. Further,

an aggressor instruction was given as to defendant Martens. The jury had the

opportunity to compare defendants’ statements, and the testimony of defendant

Martens, with the physical evidence surrounding Jason’s death. See State v.

Patterson, 335 N.C. 437, 451, 439 S.E.2d 578, 586 (1994) (finding that despite the

defendant’s contention that he killed the victim accidentally, “[f]rom [the physical]

evidence, the jury could reasonably infer that defendant intentionally pointed the

shotgun at [the victim] at close range and intentionally pulled the trigger”). Any

purported errors relating to the trial court’s decision to exclude the children’s

statements as evidence did not deprive defendants of a fair hearing on the issue of

self-defense.

¶ 106 Moreover, the children’s statements and subsequent recantations were not

relevant to defendant Martens’s state of mind. See State v. Smith, 337 N.C. 658, 447

S.E.2d 376 (1994) (finding evidence of prior violence not admissible because there was STATE V. CORBETT

no evidence defendant had knowledge of prior violent behavior). Defendant Martens

testified that he was unaware of any acts of violence between Jason and defendant

Corbett.

¶ 107 The evidence against defendants in this case was overwhelming. Each

defendant had the opportunity to argue and present their arguments of self-defense

to the jury. Neither defendant has established the possibility of a different result.

See N.C.G.S. § 15A-1443(a) (2019) (“A defendant is prejudiced . . . when there is a

reasonable possibility that, had the error in question not been committed, a different

result would have been reached . . . .”). Therefore, the decision of the trial court should

be affirmed.

Chief Justice NEWBY and Justice BARRINGER join in this dissenting

opinion.