State v. Anderson, COA23-821, ___ N.C. App. ___ (Aug. 6, 2024)

In this Cleveland County case, defendant appealed his convictions for statutory sexual offense with a child and indecent liberties with a child, arguing error in (1) admitting testimony containing hearsay from a pediatrician, (2) admitting testimony containing hearsay to “corroborate” a minor victim’s account of abuse, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no error in (1), and no prejudicial error in (2)-(3). 

Defendant came to trial on the charges in January of 2023, after an investigation by the Cleveland County Department of Social Services into allegations that defendant sexually abused his two daughters. During the trial, defendant’s two daughters both testified about defendant’s actions. Additionally, a pediatrician who examined the two girls testified about statements they made during medical examinations. Defendant’s half-brother also testified, and explained that his step-sister had told him about sexual contact between defendant and the half-brother’s daughter. The daughter also testified about those events at trial, and a signed statement from defendant that was given in 2009 was admitted into evidence. During closing argument, the prosecutor attempted to describe “404(b) evidence” to the jury, and included the following statement: “The best predictor of future behavior is past behavior.” Slip Op. at 6. 

Taking up (1), the Court of Appeals first noted the basis of the objection, as the pediatrician testified that the patient, one of defendant’s daughters, told her that defendant had touched her sister in a no-no spot. The prosecution responded to defendant’s objection by arguing that the statement could be admitted under Rule of Evidence 803(4), as a statement offered for medical diagnosis or treatment. Even though the statement referenced the patient’s sister, the court held that it was still offered for medical diagnosis or treatment. Here the pediatrician was conducting an exam that included “a patient’s mental health,” and the patient’s statement “concerned an eyewitness account of her sister’s sexual abuse, which undoubtedly affected [the patient’s] mental health.” Id. at 12.  

Moving to (2), the court agreed with defendant that the trial court erred by admitting the hearsay statements, but held that defendant waived his objection. The testimony was framed as “corroborating” a witness’s former statement, but this witness did not testify at trial. Despite the error, the court held that defendant waived his objection because he did not object to other evidence that supported the out of court statements. Because the other evidence was “of a similar character,” including the written statement given by defendant himself, the court held that defendant waived his objection. Id. at 16. 

Finally, the court considered (3), noting that the prosecutor’s statement was “the exact propensity purpose prohibited by [Rule of Evidence] 404(b).” Id. at 19. Although this statement was improper, the court did not see prejudice to the defendant, as there was ample evidence of guilt, and defendant did not rebut the presumption that the jury followed the trial court’s instructions.