State v. Pugh

530 S.E.2d 328, 138 N.C. App. 60, 2000 N.C. App. LEXIS 551
CourtCourt of Appeals of North Carolina
DecidedMay 16, 2000
DocketCOA99-673
StatusPublished
Cited by6 cases

This text of 530 S.E.2d 328 (State v. Pugh) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pugh, 530 S.E.2d 328, 138 N.C. App. 60, 2000 N.C. App. LEXIS 551 (N.C. Ct. App. 2000).

Opinions

WALKER, Judge.

The juvenile-respondent (juvenile) was adjudicated delinquent for committing a first degree sexual offense, indecent liberties, and assault inflicting serious injury on a child under the age of sixteen. After a dispositional hearing, the juvenile court ordered the juvenile to be placed in a residential training school facility for a period not to exceed his eighteenth birthday and to complete the sex offender treatment program.

At the adjudicatory hearing, the State’s evidence tended to establish the following: In May 1998, D.R., age 4, moved into the residence of Amy Cruz. Also living in the residence was Ms. Cruz’s boyfriend and her two sons, one of which is the juvenile, age 13. Prior to May 1998, D.R. had lived in Durham County, where she was physically abused by the husband of her biological mother. On 8 December 1998, at approximately 8:00 p.m., Ms. Cruz left her home to pick up her son, T.J., from basketball practice and was gone from the residence for about 30 minutes. During this time, the juvenile was alone with D.R., and he admitted striking her with an electrical cord.

At the outset of the hearing, the State called D.R. to testify. After asking D.R. five questions, the juvenile judge found that “[b]ased on the observations of the demeanor of the victim child and her answers [62]*62and the lack thereof to the questions propounded to her, the Court finds as a Matter of Law that she is not competent to testify.”

The State then called Dr. Diane Duffey, a pediatrician at Burlington Pediatrics as an expert in the field of medicine with a specialty in pediatrics and child abuse. Dr. Duffey testified that she examined D.R. on 14 December 1998 and found that D.É. had multiple bruises on her face, arms, and legs and that her eyes were “swollen shut and very bloodshot.” When Dr. Duffey asked D.R. what happened to her eyes, D.R. answered, “I fell out a van.” When asked about the bruises on her legs, D.R. stated that her brother, the juvenile, had hit her with an electrical cord when her mother, Ms. Cruz was not at home. D.R. denied that anything had happened to her vaginal area, but Dr. Duffey’s vaginal examination of D.R. revealed “a hymen that had a notch, or a tear between 12:30 and 1 o’clock, with some thickening of the hymen between two and three o’clock” and “a bluish color to her labia and a small ulceration,” indicating that she had been sexually abused or “had penetrating injury to her vaginal area.” Dr. Duffey further testified that when she examined D.R. in October and November 1998, her vaginal examinations were normal.

On cross-examination, Dr. Duffey was of the opinion that, based on the discoloration of the bruises, the vaginal injuries and the bruises to D.R.’s eyes did not occur more than five days before her examination. On redirect, Dr. Duffey admitted that “dating the ages of bruises” is not exact but depends on other factors such as the “overall health of the individual, the nutritional status, etc.”

Cathy Barrow, a protective services investigator with Alamance County Department of Social Services (D.S.S.), testified that she responded to a call from Alamance Regional Medical Center on 12 December 1998 regarding D.R.’s injuries. Ms. Barrow observed D.R.’s injuries and spoke with a doctor and D.R. regarding her injuries. Ms. Barrow testified that D.R. informed her that the juvenile had hit her with a cord. Later that day, Ms. Barrow interviewed the juvenile, who admitted hitting D.R. with a cable wire or cord approximately five times, but denied touching D.R. in her private parts.

Mary Lynn Needham, an investigator with child protective services in Alamance County, testified that she scheduled the medical examination with Dr. Duffey on 14 December 1998 and interviewed D.R. on 15 December 1998. Also present during the 15 December 1998 interview was Janet Fuquay, who is employed by the Youth Division of the Alamance County Sheriff’s Department. Both Ms. Needham and [63]*63Ms. Fuquay testified that during the 15 December 1998 interview, D.R. stated that the juvenile hit her in the face and hurt her vagina with a white stick. D.R. was interviewed again on 29 January 1999, after which Ms. Needham and Ms. Fuquay took her to the bathroom. Ms. Needham and Ms. Fuquay testified that while D.R. was in the bathroom, she removed a toilet paper spindle from its holder and told them that the juvenile had used one of these to hurt her vagina. On cross examination, Ms. Needham admitted that D.R. had been the subject of another D.S.S. investigation in May 1998, based on an allegation of sexual abuse when she lived with her biological mother in Durham County. D.R. had stated that “a man named Charles had touched her coocoo” but the report was unsubstantiated.

Danny Walker, a detective with the Alamance County Sheriffs Department, testified that he began his investigation on 12 December 1998 and that he was present with Ms. Fuquay during the 29 January 1999 interview of D.R. Detective Walker further testified that during this interview, D.R. stated that the juvenile hurt her vaginal area with a stick while she was in the bathroom and that this occurred the same day that the juvenile hit her with the cord. Detective Walker interviewed the juvenile on 14 December 1998, and during this interview, the juvenile admitted hitting D.R. at least five times on her legs and buttocks with a cord while he was babysitting her on 8 December 1998, because she would not listen to him. The juvenile denied inserting any object into her vagina.

During the adjudication hearing, the juvenile testified that he had a good relationship with D.R., but admitted hitting her legs about five times with a cord on 8 December 1998. The juvenile denied sexually abusing D.R. or hitting her in the face. Alicia Cox, the youth director at Nall Memorial Baptist Church, testified that the juvenile was an active member of the youth group at church and had made a commitment to abstain from sex until marriage. She further testified that the juvenile appeared to have a good relationship with D.R. and that she trusted him with her own small child. Sara Elizabeth Mowery, the juvenile’s grandmother, also testified that the juvenile was a “good boy” and had never done anything that would cause her to believe that he might have the propensity toward engaging in a sexual offense. Ms. Mowery further testified that the juvenile told her “the only thing that he did was hit her with that cord.”

The juvenile assigns as error the juvenile court’s: (1) finding that D.R. was incompetent to testify and thereafter admitting the hearsay [64]*64statements of D.R. under N.C. Gen. Stat. § 8C-1, Rule 803(24); (2) denying his motions to dismiss the first degree sexual offense and indecent liberties charges since there was insufficient evidence; and (3) finding that the State had proven the charges of first degree sexual offense and indecent liberties beyond a reasonable doubt.

The juvenile first contends that the juvenile court erred in finding D.R. incompetent to testify and thereafter admitting hearsay statements of D.R. under the residual hearsay exception, N.C. Gen. Stat. § 8C-1, Rule 803(24). The juvenile argues that the trial court failed to consider the six inquires as required by State v. Smith, 315 N.C. 76, 92, 337 S.E.2d 833, 844 (1985). In Smith,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Butts
582 S.E.2d 279 (Court of Appeals of North Carolina, 2003)
State v. Pearson
551 S.E.2d 471 (Court of Appeals of North Carolina, 2001)
Dean v. Manus Homes, Inc.
546 S.E.2d 160 (Court of Appeals of North Carolina, 2001)
State v. Pugh
530 S.E.2d 328 (Court of Appeals of North Carolina, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
530 S.E.2d 328, 138 N.C. App. 60, 2000 N.C. App. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pugh-ncctapp-2000.