State v. Corbett/Martens

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-714

Filed: 4 February 2020

Davidson County, Nos. 16 CRS 21–24

STATE OF NORTH CAROLINA

v.

MOLLY MARTENS CORBETT and THOMAS MICHAEL MARTENS

Appeal by defendants from judgments entered 9 August 2017 and order

entered 4 December 2017 by Judge W. David Lee in Davidson County Superior Court.

Heard in the Court of Appeals 31 January 2019.

Attorney General Joshua H. Stein, by Special Deputy Attorneys General

Jonathan P. Babb and L. Michael Dodd, for the State.

Tharrington Smith, LLP, by Douglas E. Kingsbery and Melissa H. Hill, for

defendant-appellant Molly Martens Corbett.

Crumpler Freedman Parker & Witt, by David B. Freedman, Jones P. Byrd, Jr.,

and Dudley A. Witt, for defendant-appellant Thomas Michael Martens.

ZACHARY, Judge.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens

(“Tom”), daughter and father, appeal from judgments entered upon a jury’s verdicts

finding them guilty of second-degree murder in the death of Jason Corbett (“Jason”),

Molly’s husband. Defendants also appeal the trial court’s order denying their Motion

for Appropriate Relief alleging juror misconduct. After careful review, we affirm the

order denying Defendants’ Motion for Appropriate Relief. However, due to a number

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of prejudicial errors apparent within the record, we reverse the judgments entered

upon Defendants’ convictions for second-degree murder and remand for a new trial.

Although Defendants raise 13 issues on appeal—many of which are

interconnected and complex—this case is deceptively simple, boiling down to whether

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

the tragic altercation with Jason. Having thoroughly reviewed the record and

transcript, it is evident 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. Moreover, the trial court erred in instructing

the jury on the aggressor doctrine as to Tom, given the absence of evidence to support

such an instruction.

Because these errors are dispositive and warrant a new trial, we need not

address the additional issues raised by Defendants.

I. Background

Jason originally lived in Ireland with his first wife, Margaret, and their two

children, Jack and Sarah. After Margaret died unexpectedly in 2004, Jason hired

Molly to work as an au pair. Jason and Molly later began a romantic relationship,

and in 2011, they moved with the children to Davidson County, North Carolina.

Jason and Molly married later that year.

A. The Altercation

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On 1 August 2015, Molly’s parents, Tom and Sharon Martens, traveled from

their home in Knoxville, Tennessee, to visit the Corbetts in Davidson County. Tom,

an attorney and retired FBI agent, packed an aluminum Little League baseball bat

and a tennis racket as gifts for Jack. When Tom and Sharon arrived at the Corbetts’

home at around 8:30 p.m., Jason was in the driveway, drinking a beer with a

neighbor, and he walked over to greet Tom and Sharon. That evening, Tom, Sharon,

Jason, Molly, and Sarah had dinner together while Jack attended a party. Jack came

home at around 11:00 p.m. Because of the late hour, Tom decided not to give Jack

the bat and tennis racket that night.

Tom and Sharon slept in the guest room, which was located just below the

bathroom that adjoined Jason and Molly’s bedroom. Late in the night, Tom was

awakened by noises, including “a scream and loud voices,” above their bedroom.

Wearing only a golf shirt and boxer shorts, Tom jumped out of bed, grabbed the Little

League bat that remained with his luggage by the bed, and rushed upstairs.

Once he arrived upstairs, Tom determined that the noises were coming from

Jason and Molly’s bedroom. When Tom opened the bedroom door, Molly and Jason

were facing each other, and Jason had his hands around Molly’s neck. As Tom

entered and closed the door behind him, Jason quickly removed his hands from

Molly’s neck, and shifted her into a tight chokehold with her neck in the crook of his

right arm, and her body positioned between himself and Tom.

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Tom repeatedly told Jason, “Let her go”; Jason repeatedly responded, “I’m

going to kill her.” Jason began to move down the hall toward the bathroom, dragging

Molly with him. Tom feared that if Jason took Molly into the bathroom and closed

the door, Tom would be unable save her, and “that would be the end of that.” To

impede Jason’s progress down the hall, Tom swung the baseball bat at “the back of

the two of them glued together”—hitting Jason in the back of the head, while carefully

avoiding Molly. Jason did not “go down” or even waver, and it seemed to Tom that

the blow only “further enraged” Jason. Nevertheless, Tom continued to hit Jason “as

many times as [he] could to distract him because he now had Molly in a very tight

chokehold,” and “she was no longer wiggling.”

Despite Tom’s efforts, Jason successfully pulled Molly into the bathroom. Tom

was close behind them, however, and Jason was unable to close the door. Tom had

more room to maneuver inside of the bathroom than in the hallway, and he was able

to hit Jason in the head with the bat again. Yet these efforts “didn’t seem to have

any effect.”

Jason forced his way out of the bathroom, into the hallway, and back into the

bedroom, pushing Molly and Tom along as he went. The affray resumed in the

bedroom. Tom swung the bat at Jason, who caught the bat in his left hand, enabling

Molly to break free from Jason’s chokehold. While Tom and Jason were struggling

for possession of the bat, Jason “punche[d]” his hand out and shoved Tom across the

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width of the bed, and Tom fell face first onto the floor. As he lay facedown on the

floor, Tom heard Molly scream, “Don’t hurt my dad.”

When Tom got up, he saw Jason holding the bat, standing in “a good athletic

position . . . looking between [Tom] and Molly.” Seeing that Molly was “trapped”

between the wall and the bed, Tom “rush[ed]” Jason to “try to get ahold of the bat.”

Tom and Jason renewed their struggle for control of the bat, and at some point, Molly

picked up a brick paver that was sitting on her nightstand and used it to strike Jason.

Tom managed to regain control of the bat. By this point, he was “shaking” and

physically weak from the altercation. However, because Tom remained afraid that

Jason might regain control of the bat and again attempt to kill him or Molly, Tom

continued hitting Jason until he was down, and Tom felt certain that Jason “could

not kill” them.

Shortly thereafter, Tom called 911 and told the operator, “My, my, uh,

daughter’s husband, uh, my son-in-law, uh, got in a fight with my daughter, I

intervened, and I, I think, um, and, he’s in bad shape. We need help. . . . He, he’s

bleeding all over, and I, I may have killed him.” With the 911 operator’s guidance,

Molly and Tom took turns administering CPR to Jason until the emergency medical

crew arrived.

B. The Investigation

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Davidson County EMS paramedics arrived at the scene within ten minutes of

receiving the 911 call. One paramedic quickly determined that Jason had suffered

“severe heavy trauma to the back of the head.” While attempting to lift Jason’s chin

in order to prepare him for intubation, all of the paramedic’s left “fingers went inside

the skull.”

Inside of the house, first responders observed a significant amount of blood on

the floor and walls of the bedroom, dry blood on portions of Jason’s body, and a brick

paver on the bedroom floor. Deputies from the Davidson County Sheriff’s Office

retrieved the children from their bedrooms, where they found Sarah and Jack asleep

and undisturbed.

Meanwhile, Deputy David Dillard escorted Molly to his patrol car, where she

remained for approximately one hour. In his written report of the incident, Deputy

Dillard noted that Molly was “very obviously in shock.” He recalled that Molly “was

making crying noises but [he] didn’t see any visible tears. She was also rubbing her

neck. . . . It wasn’t a constant. She would do it and stop and do it and then stop while

continuing to make the crying noises.”

Molly was “in the fetal position” on the ground beside Deputy Dillard’s car

when two paramedics approached to examine her. Both paramedics observed redness

on Molly’s throat, and when one of them asked Molly whether her neck hurt, she said

yes, and stated that she had been choked. Aside from Molly’s symptoms of shock and

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the redness and soreness to her throat, none of the first responders observed any

apparent injuries to either Molly or Tom.

Lieutenant Frank Young, III, arrived on the scene later, and took photographs

of Jason’s body. One of the photographs depicted Jason’s right hand with a long

blonde hair in his palm.

Later that day, Molly submitted the following written statement to the

Davidson County Sheriff’s Office:

My husband, Jason Corbett, was upset that he awoke and

an argument ensued with him telling me to “shut up,” (etc.)

and he applied pressure to my throat/neck and started

choking me. At some point, I screamed as loud as possible.

He covered my mouth and then started choking me again

with his arm. My father, Tom Martens, came in the room

and I cannot remember if he said something or just hit

Jason to get him off me. Jason grabbed the bat from him

and I tried to hit him with a brick (garden decor) I had on

my nightstand. I do not remember clearly after that.

On 3 August 2015, a medical examiner at the North Carolina Office of the Chief

Medical Examiner performed an autopsy and determined Jason’s cause of death to

be blunt force head trauma, including “extensive skull fractures” and “two large,

branched, full-thickness lacerations of bilateral parietal scalp,” arising from multiple

blows to the head. The medical examiner found that one laceration on Jason’s head

“ha[d] an appearance of a postmortem injury.” He also noted that Jason had a blood

alcohol level of 0.02% and tested positive for low levels of an antidepressant

medication known to have sedative effects.

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That day, Sarah and Jack were staying with Molly’s brother in Union County

when they were visited by a social worker from the Union County Department of

Social Services (“DSS”). Pursuant to a request from the Davidson County Sheriff’s

Office, the social worker conducted separate interviews of the children, inquiring

about issues including domestic violence and familial relationships. During his

interview, Jack reported that “his dad gets mad at his mom [Molly] for no good

reason.” He also shared that once, he was accidentally pushed down the stairs while

attempting to intervene in a fight between Jason and Molly. Sarah similarly stated

during her interview that “her dad is angry on a regular basis,” and she described an

incident when Jason pulled Molly’s hair and “smacked her in the face.”

Upon the referral of Davidson County DSS, on 6 August 2015, four days after

Jason’s death, Jack and Sarah received child medical evaluations at the Dragonfly

House Children’s Advocacy Center in Mocksville, North Carolina. Davidson County

Sheriff’s Detectives Mark Hanna and Nathan Riggs observed the forensic medical

interview portions of the children’s separate, two-part child medical evaluations.

Prior to the interviews, Detectives Hanna and Riggs met with the other members of

the children’s multi-disciplinary team and submitted the following list of questions

related to the investigation of Jason’s death, which they wanted the interviewer to

ask the children:

QUESTIONS FOR KIDS –

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1. FIND OUT ABOUT DV IN HOME.

IS JACK AFRAID OF DAD. DO KIDS LIKE/HATE

MOLLY.

2. FIND OUT ABOUT PAVER IN BEDROOM

3. ASK ABOUT NIGHTMARE THAT WOKE HER UP.

4. ASK ABOUT HOW THE “EMERGENCY #”

– WHY WAS IS [sic] SETUP – WHO SETUP – WHEN

– WHO WROTE#.

5. ASK WHERE G-MOM + G-DAD USUALLY SLEEP

WHEN THEY STAY

6. ASK IF DAD EVER MENTIONED A TRIP TO

IRELAND THIS MONTH

7. ASK ABOUT RELATIONSHIP W/ MOLLY

8. ASK ABOUT SARAH’S SLEEPING IN BED W/MOLLY

[illegible] DAD.

During his interview, Jack described how Jason often got angry with Molly

over “simple things” such as “bills” and “leaving lights on.” Jack stated that Jason

“physically and verbally hurt” Molly, and that he had personally witnessed occasions

when Jason punched, hit, and pushed her. According to Jack, Jason’s anger problems

had “gotten worse over the past few months.”

In addition, Jack explained that the brick paver was present in the master

bedroom because Molly and the children “were going to paint it, because [they] just .

. . got flowers that [they] were going to plant in [their] front yard or back yard[.]” Jack

further explained, however, that it had been raining, and they did not want the brick

paver “getting all wet. So [they] brought it inside, and [Molly] put it at her desk.”

Like Jack, Sarah similarly stated during her interview that Jason would get

angry for “ridiculous reasons,” such as when he was inadvertently awakened from

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sleep at night. Sarah explained that she sometimes had nightmares and would come

to Molly for comfort, but that Jason would get “very angry” if she accidentally woke

him up. Sarah described one such incident that occurred in the middle of the night

that Jason died. That night, Sarah had a nightmare involving the fairies on her

bedsheets, and she went to Jason and Molly’s bedroom and asked Molly to change her

sheets. When Molly got out of bed to go to Sarah’s bedroom, Jason became angry,

and the ensuing argument between Molly and Jason eventually led to the deadly

affray in this matter.

C. Defendants’ Trial

On 18 December 2015, a grand jury indicted Molly and Tom for second-degree

murder and voluntary manslaughter. Defendants pleaded not guilty, and a joint trial

was set for 17 July 2017 in Davidson County Superior Court, the Honorable W. David

Lee, judge presiding.

By the time of trial, Jack and Sarah were in the custody of Jason’s family in

Ireland, and thus, beyond the subpoena power of the trial court. Accordingly, prior to

trial, Defendants moved to admit the children’s hearsay statements from their

interviews conducted (1) by the Union County DSS social worker on 3 August 2015,

and (2) at the Dragonfly House on 6 August 2015, pursuant to N.C. Gen. Stat. § 8C-

1, Rule 803(4), the medical diagnosis or treatment exception, or in the alternative,

Rules 803(24) and 804(b)(5), the residual exceptions. Following a hearing on 8 and 9

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June 2017, the trial court decided to defer its ruling on Defendants’ motion until trial.

Ultimately, although the trial court found that both children were unavailable to

testify, it nonetheless denied Defendants’ motion to admit the children’s hearsay

statements following Tom’s testimony during Defendants’ case-in-chief.

At trial, the State relied heavily upon forensic evidence, including photographs

of Jason’s body and the undeniably violent fight scene, as well as the testimony of

first responders and law enforcement officers who were present that night. The State

also presented significant medical evidence, including testimony from the medical

examiner and Jason’s medical records from Kernersville Primary Care, which

established that two weeks before his death, during a 16 July 2015 appointment,

Jason reported that he had been feeling dizzy and “more stressed and angry lately for

no reason.”

When the State proffered an expert witness in bloodstain pattern analysis,

Defendants requested voir dire, challenging the reliability of the witness’s

conclusions regarding certain evidence that the State had not submitted to the North

Carolina State Crime Laboratory for blood or DNA testing. Following voir dire, the

trial court ruled that the testimony was sufficiently reliable under N.C. Gen. Stat. §

8C-1, Rule 702(a), and admitted the witness’s testimony over Defendants’ objections

at trial.

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At the charge conference, Defendants requested that the trial court remove all

aggressor language from the proposed pattern jury instructions, arguing that there

was no evidence “that anyone was the aggressor but Jason.” The State had “no

objection” to the trial court’s “declining to instruct on the aggressor issue as to” Molly,

but argued that there was “conflicting evidence” in Tom’s case, which could

reasonably be interpreted to support that he was the aggressor. Following detailed

arguments from the parties, the trial court ruled, as a matter of law, that Molly was

not an aggressor, and properly omitted all aggressor language from the proposed

pattern instructions in her case. As to Tom, however, the trial court ruled in the

State’s favor, and accordingly, instructed the jury on the aggressor doctrine in his

case.

The State also requested that the trial court instruct the jury that it could find

Molly guilty under an acting-in-concert theory, if it found that she was present during

the incident and acted with Tom in pursuit of a common plan or purpose. The trial

court delivered the State’s requested instruction, over Defendants’ objections.

On 9 August 2017, the jury returned verdicts finding Defendants guilty of

second-degree murder. That day, the trial court entered separate judgments

sentencing Defendants to 240-300 months each in the custody of the North Carolina

Division of Adult Correction. Defendants gave oral notice of appeal in open court.

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On 16 August 2017, Defendants filed a joint Motion for Appropriate Relief

asserting that they were entitled to an evidentiary hearing and ultimately, a new

trial, due to alleged juror misconduct. On 4 December 2017, the trial court entered

an order denying Defendants’ Motion for Appropriate Relief, which Defendants

timely appealed to this Court.

II. Motion for Appropriate Relief

We first address Defendants’ challenge to the trial court’s order denying their

Motion for Appropriate Relief. Defendants contend that the trial court erred by

failing to grant, or conduct an evidentiary hearing on, Defendants’ requests to set

aside the jury verdicts and judgments and grant them a new trial, “because

competent evidence demonstrates frequent juror misconduct prejudicial to the

defense and harmful to the judicial system.” We disagree.

A. Standard of Review

On appeal, we review a trial court’s order denying a motion for appropriate

relief “to determine whether the findings of fact are supported by evidence, whether

the findings of fact support the conclusions of law, and whether the conclusions of law

support the order entered by the trial court.” State v. Frogge, 359 N.C. 228, 240, 607

S.E.2d 627, 634 (2005) (quotation marks and citation omitted). “When a trial court’s

findings on a motion for appropriate relief are reviewed, these findings are binding if

they are supported by competent evidence and may be disturbed only upon a showing

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of manifest abuse of discretion.” State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d

274, 276 (1998) (citation omitted). “Abuse of discretion results where the court’s

ruling is manifestly unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d

735, 748, cert. denied, 549 U.S. 1000, 166 L. Ed. 2d 378 (2006). “However, the trial

court’s conclusions are fully reviewable on appeal.” Wilkins, 131 N.C. App. at 223,

506 S.E.2d at 276.

B. N.C. Gen. Stat. § 15A-1414

“After the verdict but not more than 10 days after entry of judgment,” a

criminal defendant may “by motion . . . seek appropriate relief for any error

committed during or prior to the trial.” N.C. Gen. Stat. § 15A-1414(a) (2019). See

generally id. §§ 15A-1414, -1415 (setting forth the errors that may be asserted, as well

as the time limitations upon, a criminal defendant’s motion for appropriate relief

made in the trial division). However, once the 10-day, post-judgment period expires,

the only errors from which a defendant may seek appropriate relief in the trial court

are those specifically enumerated in N.C. Gen. Stat. § 15A-1415. Id. § 15A-1414(b);

see also id. § 15A-1415.

Whether the trial court must conduct an evidentiary hearing before ruling on

a motion for appropriate relief depends upon a number of factors, including when the

motion was filed; the complexity of the issues presented, as well as the trial court’s

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familiarity with the underlying record; and whether the allegations involve questions

of law or fact. See id. § 15A-1420(c)(1)-(4). No evidentiary hearing is required “when

the motion is made in the trial court pursuant to [N.C. Gen. Stat. §] 15A-1414, but

the court may hold an evidentiary hearing if it is appropriate to resolve questions of

fact.” Id. § 15A-1420(c)(2).

Accordingly, where the defendant moves the trial court for appropriate relief

within 10 days following entry of judgment, the decision of whether to hold “an

evidentiary hearing is . . . within the sound discretion of the trial court.” Elliott, 360

N.C. at 419, 628 S.E.2d at 748. “[I]f the trial court can determine from the motion

and any supporting or opposing information presented that the motion is without

merit, it may deny the motion without any hearing either on questions of fact or

questions of law, including constitutional questions.” Id. (original emphasis and

citations omitted). We review the trial court’s decision to deny “an evidentiary

hearing for abuse of discretion.” Id. (citation omitted).

C. Defendants’ Motion for Appropriate Relief

In the instant case, after the jury returned verdicts on 9 August 2017 finding

Defendants guilty of second-degree murder, the trial court proceeded to enter

separate judgments and sentences upon Defendants’ convictions. Defendants

entered oral notice of appeal in open court.

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Seven days later, on 16 August 2017, Defendants filed a Motion for Appropriate

Relief alleging juror misconduct and violations of their constitutional rights, and

requesting that the trial court “set an evidentiary hearing, set aside the jury’s

verdict[s] and grant [Defendants] a new trial.” In support of their motion, Defendants

submitted affidavits and exhibits, including (1) printouts from Facebook on 10 August

2017 showing various individuals discussing the details of Defendants’ trial, and a

few former jurors sharing their personal experiences and opinions about the case; and

(2) an 11 August 2017 report featuring coverage of Defendants’ case and trial in that

evening’s upcoming episode of ABC News “20/20.”

In the State’s Response to Defendants’ Motion for Appropriate Relief, filed 21

August 2017, the State asserted that Defendants’ allegations of juror misconduct

were “speculative” and could not be proved by admissible evidence; accordingly, the

State requested that the trial court deny Defendants’ motion without conducting an

evidentiary hearing. On 25 August 2017, Defendants filed a Supplemental Motion

for Appropriate Relief and Reply to State’s Response, and submitted additional

supporting affidavits and exhibits including, inter alia, affidavits from two

individuals who attested to having witnessed pre-deliberation conversations between

jurors. The State filed a response to Defendants’ Supplemental Motion for

Appropriate Relief on 8 September 2017.

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Without conducting an evidentiary hearing, on 4 December 2017, the trial

court entered an order denying Defendants’ Motion for Appropriate Relief,

determining that

there is neither evidence nor forecast with reasonable

certainty of evidence that rises above the level of mere

speculation or conjecture of either (1) any extraneous

prejudicial information brought to a juror’s attention or (2)

any outside influence that has violated either defendants’

[sic] constitutional right of confrontation brought to bear

on any juror.

In their filings before the trial court, Defendants advanced numerous

arguments in support of their contention that “frequent juror misconduct prejudicial

to the defense and harmful to the judicial system” occurred in this case. However, we

need only address the three arguments raised in Defendants’ briefs with respect to

this issue.

On appeal, Defendants contend that the trial court abused its discretion by

denying their Motion for Appropriate Relief, as well as their request for an

evidentiary hearing, because (1) competent evidence demonstrated that certain jurors

“committed gross and pervasive misconduct in their private discussions of the case”;

(2) jurors engaged in “private discussions” amongst themselves prior to deliberations,

thereby violating Defendants’ constitutional right to trial by a jury of twelve qualified

jurors; and (3) several jurors’ statements during post-trial media interviews evinced

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that they improperly considered and formed opinions about Molly’s mental health,

although that issue was not in evidence.

After careful review, we agree with the State that the trial court did not abuse

its discretion by denying Defendants’ Motion for Appropriate Relief without

conducting an evidentiary hearing. Defendants’ allegations of juror misconduct are,

at best, general, speculative, and conclusory. Furthermore, we conclude that even if

the trial court were to hold an evidentiary hearing on Defendants’ § 15A-1414

motion—which it is not required to do, see N.C. Gen. Stat. § 15A-1420(c)(2)—

precedent prohibiting verdict impeachment would bar Defendants from presenting

any admissible evidence to prove the truth of their allegations.

The proscription against impeachment of a jury verdict “is well settled in North

Carolina.” State v. Cherry, 298 N.C. 86, 100, 257 S.E.2d 551, 560 (1979), cert. denied,

446 U.S. 941, 64 L. Ed. 2d 796 (1980). “[A]fter a verdict has been rendered and

received by the court, and jurors have been discharged, jurors will not be allowed to

attack or overthrow their verdict, nor will evidence from them be received for such

purpose.” Id.

The purpose of the “no-impeachment rule” is “to promote freedom of

deliberation, stability and finality of verdicts, and protection of jurors against

annoyance and embarrassment.” Cummings v. Ortega, 365 N.C. 262, 267, 716 S.E.2d

235, 239 (2011), cert. denied, 566 U.S. 993, 182 L. Ed. 2d 1029 (2012). This rule has

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been codified under N.C. Gen. Stat. § 8C-1, Rule 606(b), and N.C. Gen. Stat. § 15A-

1240(a). As our Supreme Court has observed, “Rule 606(b) reflects the common law

rule that affidavits of jurors are inadmissible for the purposes of impeaching the

verdict except as they pertain to extraneous influences that may have affected the

jury’s decision.” Cummings, 365 N.C. at 267, 716 S.E.2d at 239 (internal quotation

marks omitted). See also State v. Lyles, 94 N.C. App. 240, 246, 380 S.E.2d 390, 394

(1989) (“[T]he exceptions to the anti-impeachment rule listed in Section 15A-1240 are

designed to protect the same interests as, and are entirely consistent with, the

exceptions in Rule 606(b).”).

Whether evidence may be utilized to impeach a verdict depends upon whether

jurors were subjected to “external” or “internal” influences. External influences,

“which generally are admissible to prove the invalidity of a verdict,” may “include

information dealing with the defendant or the case which is being tried, which

reaches a juror without being introduced in evidence.” Cummings, 365 N.C. at 269,

716 S.E.2d at 240 (internal quotation marks, ellipsis, and citation omitted). By

contrast, “internal influences” include “information coming from the jurors

themselves—the effect of anything upon a juror’s mind or emotions as influencing

him to assent to or dissent from the verdict or indictment or concerning his mental

processes in connection therewith.” Id. “Internal influences may include: a juror not

assenting to the verdict, a juror misunderstanding the instructions of the court, a

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juror being unduly influenced by the statements of his fellow-jurors, or a juror being

mistaken in his calculations or judgments.” Id. (internal quotation marks and

citations omitted).

In the case at bar, it is evident that any notions developed by the jurors

regarding Molly’s mental health relate to “internal influences” of the jury. Therefore,

Rule 606(b) precludes Defendants from presenting juror testimony—or affidavits

regarding the internal influences of the jury—as a means to impeach the verdicts.

See Elliott, 360 N.C. at 420, 628 S.E.2d at 748 (concluding that the trial court did not

abuse its discretion in denying a hearing where the “defendant would have been

unable to present any evidence which would have strengthened the claims made in

the motion for appropriate relief”).

Nor do Defendants offer any facts to support that their allegations regarding

the jurors’ statements concerning Molly’s mental health are based upon anything

beyond mere speculation or opinion. The interviews appearing on ABC News “20/20,”

in which three jurors made statements that Defendants allege pertained to Molly’s

mental health, were conducted after the verdicts had been rendered. Notably,

Defendants fail to identify, or even suggest, any source from which the jurors might

have improperly gleaned this information prior to rendering a decision at trial. Cf.

State v. Rollins, 224 N.C. App. 194, 201-02, 734 S.E.2d 634, 636-37 (2012) (holding

that the trial court did not abuse its discretion by failing to hold an evidentiary

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hearing on the defendant’s motion that “failed to specify: which news broadcast the

juror in question had seen besides a possible broadcast summary from the News 14

Carolina website; the degree of attention the juror . . . had paid to the broadcast; the

extent to which the juror . . . received or remembered the broadcast; whether the juror

. . . had shared the contents of the news broadcast with other jurors; and the

prejudicial effect, if any, of the alleged juror misconduct” (footnote omitted)), aff’d per

curiam, 367 N.C. 114, 748 S.E.2d 146 (2013).

The no-impeachment rule similarly defeats Defendants’ arguments regarding

any “private discussions” that allegedly took place between jurors. Again, “Rule

606(b) of the North Carolina Rules of Evidence bars jurors from testifying during

consideration of post-verdict motions seeking relief from an order or judgment about

alleged predeliberation misconduct by their colleagues.” Cummings, 365 N.C. at 270,

716 S.E.2d at 240-41. The Cummings Court concluded that affidavits tending to show

that a juror made statements regarding his opinion about the case were inadmissible

under Rule 606(b) because such statements were internal influences: “Even if [a

juror] had made up his mind before [the] plaintiff introduced any evidence, this state

of mind is precisely the type of information that Rule 606(b) excludes. Consequently,

the affidavits of [two of the jurors] were inadmissible pursuant to Rule 606(b).” Id. at

271, 716 S.E.2d at 241.

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Here, the no-impeachment rule bars the admission of Defendants’ proffered

affidavits. Moreover, any evidence regarding pre-deliberation conversations would

also be inadmissible under Rule 606(b). See N.C. Gen. Stat. § 8C-1, Rule 606(b) (“Nor

may [a juror’s] affidavit or evidence of any statement by him concerning a matter

about which he would be precluded from testifying be received for these purposes.”).

Moreover, the affidavit from the non-juror who attested to having witnessed

two jurors conversing in a car prior to the jury’s deliberations contains nothing more

than speculative allegations. See Elliott, 360 N.C. at 420, 628 S.E.2d at 748 (holding

that the trial court did not abuse its discretion in denying a request for an evidentiary

hearing where the “defendant failed to make an adequate threshold showing of juror

misconduct”). Indeed, as Defendants acknowledge in their brief, “the content of this

conversation is unknown.” By Defendants’ own admission, the only parties who could

offer evidence regarding the subject and scope of this conversation are the two jurors

who took part. But as previously explained, their statements would not be admissible

for that purpose. See N.C. Gen. Stat. § 8C-1, Rule 606(b); N.C. Gen. Stat. § 15A-

1240(a); cf. Rollins, 224 N.C. App. at 201, 734 S.E.2d at 636 (“Based on the record,

[the] defendant’s evidence was insufficient to show the existence of the asserted

ground for relief. There is insufficient evidence to determine whether juror

misconduct occurred as [the] defendant’s motion and [a fellow juror’s] affidavit merely

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contained general allegations and speculation.” (citations and internal quotation

marks omitted)).

For the same reasons, Defendants’ argument that the alleged private

discussion between jurors violated their constitutional right to trial by 12 qualified

jurors must also fail. See Elliott, 360 N.C. at 418, 628 S.E.2d at 747 (“[T]he

documentary evidence [the] defendant submitted to support his motion for

appropriate relief was insufficient to show, by any standard, that juror misconduct

occurred in the form of private deliberations outside the presence of the other jurors.

While [the] defendant’s brief characterizes the prayer between the two jurors as

‘deliberations’ and ‘discussions about the case outside the presence of their ten fellow

jurors,’ there is nothing in the record that indicates a discussion or deliberation of

any kind occurred.”).

Even assuming, arguendo, that the affidavits were admissible to prove

misconduct, Defendants nevertheless fail to indicate the effect—prejudicial or

otherwise—of the alleged misconduct upon the jury’s verdicts. See N.C. Gen. Stat. §

15A-1420(c)(6) (“Relief must be denied unless prejudice appears, in accordance with

[N.C. Gen. Stat. §] 15A-1443.”); see also Cummings, 365 N.C. at 271-73, 716 S.E.2d

at 241-42 (reversing this Court’s decision upholding the trial court’s grant of a new

trial due to jury misconduct, despite allegations from multiple jurors that pre-

deliberation statements by one juror “inhibited jurors from engaging in full

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deliberations” and “interfered with [another juror’s] thought process”); Elliott, 360

N.C. at 419, 628 S.E.2d at 748 (affirming the trial court’s denial of the defendant’s

“inadequately supported motion for appropriate relief” because the defendant “failed

to shed light on any prejudice to [the] defendant which arose from [the alleged juror]

discussions”).

Absent the required showing of prejudice, we conclude that the trial court did

not err in denying Defendants’ Motion for Appropriate Relief without conducting an

evidentiary hearing.

III. Motion to Dismiss

Defendants next argue that the trial court erred by denying their motions to

dismiss for insufficient evidence the charges of second-degree murder and voluntary

manslaughter. Defendants contend that this case is analogous to State v. Carter, 254

N.C. 475, 119 S.E.2d 461 (1961), in which our Supreme Court held, inter alia, that

“[w]hen the State introduces in evidence exculpatory statements of the defendant

which are not contradicted or shown to be false by any other facts or circumstances

in evidence, the State is bound by these statements.” 254 N.C. at 479, 119 S.E.2d at

464. Accordingly, Defendants assert that the State failed to present substantial

evidence to rebut or contradict Molly’s exculpatory handwritten statement

establishing that Molly and Tom acted in lawful self-defense and defense of others,

which was introduced by the State and by which the State was bound. We disagree.

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“In ruling on a motion to dismiss, the trial court need determine only whether

there is substantial evidence of each essential element of the crime and that the

defendant is the perpetrator.” State v. Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546,

549 (2018) (citation omitted). “Substantial evidence is that amount of relevant

evidence necessary to persuade a rational juror to accept a conclusion.” Id. The trial

court “must consider all evidence admitted, whether competent or incompetent, in

the light most favorable to the State, giving the State the benefit of every reasonable

inference and resolving any contradictions in its favor.” Id. at 492, 809 S.E.2d at 549-

50 (citation omitted). “Whether the State presented substantial evidence of each

essential element of the offense is a question of law; therefore, we review the denial

of a motion to dismiss de novo.” State v. Crockett, 368 N.C. 717, 720, 782 S.E.2d 878,

881 (2016).

“Second-degree murder is defined as (1) the unlawful killing, (2) of another

human being, (3) with malice, but (4) without premeditation and deliberation.” State

v. Arrington, 371 N.C. 518, 523, 819 S.E.2d 329, 332 (2018) (quotation marks and

citation omitted). By contrast, voluntary manslaughter is defined as “the unlawful

killing of a human being without malice, express or implied, and without

premeditation and deliberation.” State v. Rinck, 303 N.C. 551, 565, 280 S.E.2d 912,

923 (1981). Malice sufficient to support a conviction of second-degree murder is either

actual, express malice, or acting in a manner “which is inherently dangerous to

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human life . . . [in that it is] so reckless[ ] and wanton[ ] as to manifest a mind utterly

without regard for human life and social duty and deliberately bent on mischief.”

State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982). “[T]he burden of

showing an unlawful killing . . . rest[s] with the State.” Carter, 254 N.C. at 479, 119

S.E.2d at 464 (citation omitted).

When a defendant raises a self-defense claim on a motion to dismiss, the State

must “present sufficient substantial evidence which, when taken in the light most

favorable to the State, is sufficient to convince a rational trier of fact that [the]

defendant did not act in self-defense.” State v. Kirby, 206 N.C. App. 446, 453, 697

S.E.2d 496, 501 (2010) (citation and quotation marks omitted). The four elements of

self-defense are:

(1) it appeared to [the] defendant and he believed it to be

necessary to kill the deceased in order to save himself from

death or great bodily harm; and

(2) [the] defendant’s belief was reasonable in that the

circumstances as they appeared to him at that time were

sufficient to create such a belief in the mind of a person of

ordinary firmness; and

(3) [the] defendant was not the aggressor in bringing on the

affray, i.e., he did not aggressively and willingly enter into

the fight without legal excuse or provocation; and

(4) [the] defendant did not use excessive force, i.e.[,] did not

use more force than was necessary or reasonably appeared

to him to be necessary under the circumstances to protect

himself from death or great bodily harm.

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State v. Presson, 229 N.C. App. 325, 328, 747 S.E.2d 651, 654-55 (citations omitted),

disc. review denied, 367 N.C. 274, 752 S.E.2d 150 (2013).

Defendants rely heavily on State v. Carter to support their contention that the

trial court erred by denying their motion to dismiss the second-degree murder

charges. The salient facts in Carter came entirely from a county sheriff’s testimony.

At 9:00 p.m. on 7 July 1960, the defendant came to the home of the sheriff and said,

“I think I have killed my daddy.” Carter, 254 N.C. at 476, 119 S.E.2d at 462. Earlier

that night, when the defendant’s father came home from work, he noticed that a

screen door was damaged. He became angry and “jumped on [the defendant’s] 9 and

1/2-year-old brother . . . about it.” Id. The defendant’s mother and father began to

argue, which led to the defendant’s father beating her mother with a wine bottle. Id.

at 477, 119 S.E.2d at 462. When the defendant tried to intervene, the defendant’s

father “grabbed [the defendant’s] arm and started twisting it.” Id. After the

defendant’s father released her, he began beating her mother again. Id. at 477, 119

S.E.2d at 463. The defendant retrieved a bumper jack and hit her father on the head

with it numerous times until he went down, at which time the defendant left her

father on the ground and took her mother to the hospital. Id. The defendant’s father

died two days later. Id. at 478, 119 S.E.2d at 463.

In Carter, “the State introduced statements of the accused to the effect that the

defendant was trying to stop the deceased from assaulting her mother with a broken

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bottle.” Id. at 479, 119 S.E.2d at 464. The State limited its evidence in this regard

to the accused’s statements, and there was “no evidence from which a jury could

reasonably find that either the defendant or her mother was at fault in starting the

altercation described in the record.” Id. Our Supreme Court explained that “[w]hile

the State by offering this evidence was not precluded from showing that the facts

were different, no such evidence was offered, and the State’s case was made to rest

entirely on the statements of the defendant, which the State presented as worthy of

belief.” Id. Thus, the Court concluded that “[t]his evidence plainly negatives the

existence of an unlawful killing,” and reversed the trial court’s denial of the

defendant’s motion for judgment of nonsuit. Id. at 479-80, 119 S.E.2d at 464.

We conclude that Carter is not analogous to the case before us. This Court has

repeatedly distinguished self-defense cases from Carter where there is circumstantial

or physical evidence contradicting exculpatory evidence. See, e.g., State v. Stafford,

66 N.C. App. 440, 443, 311 S.E.2d 64, 66 (“While there was evidence tending to show

that [the] defendant acted in self-defense, there was also substantial circumstantial

evidence tending to show an intentional shooting done without legal excuse. The

credibility and sufficiency of [the] defendant’s evidence to establish his plea of self-

defense were for the jury to evaluate in the light of the court’s instructions.” (citation

and internal quotation marks omitted)), disc. review denied, 311 N.C. 406, 319 S.E.2d

279 (1984); State v. Lane, 3 N.C. App. 353, 355, 164 S.E.2d 618, 619 (1968) (“The

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evidence did not completely exculpate the defendant because accidental death was

not conclusively shown. There was some intimation of ill will or a quarrel between

the defendant and the deceased, and the defendant was holding the knife in such a

manner as to indicate an intentional use thereof.”).

Likewise, the instant case was not entirely predicated on Molly’s statement

that she and Tom acted in self-defense and defense of each other. Here, the State

presented substantial circumstantial evidence from which a rational juror could

reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows

to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on

her neck; (3) Jason was unarmed when the altercation occurred; (4) the children

remained asleep throughout the entire altercation; (5) EMS, paramedics, and law

enforcement responders observed that some of the blood on Jason’s body had dried,

and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7)

Jason had a life insurance policy, of which Molly was the named beneficiary.

Viewed in the light most favorable to the State, there was sufficient evidence

from which a rational juror could conclude that Defendants did not act in self-defense,

or defense of each other. Accordingly, the trial court did not err by denying

Defendants’ motions to dismiss the charges of second-degree murder and voluntary

manslaughter.

IV. Evidentiary Errors

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A. Sarah and Jack’s Interview Statements

We next consider Defendants’ arguments that the trial court erred by

excluding hearsay statements made by Sarah and Jack (1) during their child medical

evaluations at the Dragonfly House on 6 August 2015, and (2) during their 3 August

2015 interviews with a social worker employed by the Union County DSS.

On 3 August 2015, the day after Jason’s death, both children were interviewed

by a Union County DSS social worker, after an urgent request from the Davidson

County Sheriff’s Office. Later that week, on 6 August 2015, Jack and Sarah visited

the Dragonfly House, a nationally accredited children’s advocacy center in

Mocksville, North Carolina. The children were referred to the Dragonfly House by

the Davidson County Sheriff’s Office, due to concerns of abuse in the home.

Prior to trial, Defendants moved to admit hearsay statements made by the

children during their interviews (1) by Union County DSS on 3 August 2015; and (2)

at the Dragonfly House on 6 August 2015, pursuant to N.C. Gen. Stat. § 8C-1, Rule

803(4), or in the alternative, Rules 803(24) and 804(b)(5).1 Defendants further moved

the trial court “to declare the minor witnesses, Jack Corbett and Sarah Corbett,

unavailable for purposes of testifying at” trial, noting the defense’s inability “to

1Defendants also moved to admit statements made by the children on 13 August 2015 during

interviews conducted by Union County DSS personnel, at the request of Davidson County DSS.

However, on appeal, Defendants do not argue that the exclusion of these statements was erroneous.

Accordingly, we do not consider the 13 August 2015 statements in our analysis. See N.C.R. App. P.

28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or argument is stated,

will be taken as abandoned.”).

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procure the presence of” Jack and Sarah, who “are citizens and residents of the

country of Ireland which is outside the jurisdiction of the subpoena power of the state

of North Carolina.” The State sought to exclude all of the proffered statements.

Following an extensive hearing with numerous witnesses on 8 and 9 June 2017, the

trial court decided to “defer an absolute ruling” on Defendants’ hearsay motion until

trial.

The trial court delivered its ruling on Friday, 4 August 2017, shortly after Tom

testified during Defendants’ case-in-chief. The court properly found “that both Jack

Corbett and Sarah Corbett are unavailable for purposes of this proffer of evidence. . .

. [T]hey are beyond the jurisdiction and process of th[e] Court[,]” in that they “have

been and remain in Ireland.” The trial court concluded, however, that none of the

proffered statements were admissible under either (1) the medical diagnosis or

treatment exception, Rule 803(4), or (2) the residual exception, pursuant to Rule

803(24). The trial court subsequently entered a written order memorializing its

ruling.

1. Medical Diagnosis or Treatment Exception

Defendants first contend that the trial court erroneously concluded that the

children’s statements were not admissible under Rule 803(4). We agree.

Rule 803 provides, in pertinent part:

The following are not excluded by the hearsay rule, even

though the declarant is available as a witness:

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....

(4) Statements for Purposes of Medical Diagnosis or

Treatment. – Statements 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. Gen. Stat. § 8C-1, Rule 803(4).

The medical diagnosis or treatment exception to the hearsay rule is based upon

the common-law rationale “that a patient has a strong motivation to be truthful in

order to obtain appropriate medical treatment.” State v. Hinnant, 351 N.C. 277, 287,

523 S.E.2d 663, 669 (2000). For this reason, statements admitted under Rule 803(4)

are considered “inherently trustworthy and reliable[.]” Id. at 284, 523 S.E.2d at 668.

In Hinnant, our Supreme Court established a two-part test for admissibility

under Rule 803(4):

First, the trial court must determine that the declarant

intended to make the statements at issue in order to obtain

medical diagnosis or treatment. The trial court may

consider all objective circumstances of record in

determining whether the declarant possessed the requisite

intent. Second, the trial court must determine that the

declarant’s statements were reasonably pertinent to

medical diagnosis or treatment.

Id. at 289, 523 S.E.2d at 670-71. A trial court’s determination of the admissibility of

hearsay statements pursuant to Rule 803(4) is reviewed de novo on appeal. State v.

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Norman, 196 N.C. App. 779, 783, 675 S.E.2d 395, 399, disc. review denied, 363 N.C.

587, 683 S.E.2d 382 (2009).

In order to satisfy the first prong of the Hinnant test—the intent inquiry—the

proponent of Rule 803(4) evidence must “demonstrat[e] that the declarant made the

statements understanding that they would lead to medical diagnosis or treatment.”

Hinnant, 351 N.C. at 287, 523 S.E.2d at 669. As our courts have repeatedly

recognized, however, it is not always easy to ascertain “whether a declarant

understood the purpose of his or her statements[,]” id., particularly in cases involving

child-declarants. See, e.g., id.; State v. Blankenship, __ N.C. App. __, __, 814 S.E.2d

901, 915-16 (2018), disc. review denied, 372 N.C. 295, 827 S.E.2d 98 (2019); State v.

Isenberg, 148 N.C. App. 29, 36-37, 557 S.E.2d 568, 573 (2001), appeal dismissed and

disc. review denied, 355 N.C. 288, 561 S.E.2d 268 (2002).

The trial court may consider a number of factors in determining whether a

child’s statements were motivated by the necessary intent, including “whether an

adult explained to the child the need for treatment and the importan[ce] of

truthfulness; with whom and under what circumstances the declarant was speaking;

the setting of the interview; and the nature of the questions.” Blankenship, __ N.C.

App. at __, 814 S.E.2d at 916 (citation omitted). But again, “the trial court should

consider all objective circumstances of record surrounding [the] declarant’s

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statements in determining whether he or she possessed the requisite intent under

Rule 803(4).” Hinnant, 351 N.C. at 288, 523 S.E.2d at 670 (emphasis added).

“The second inquiry under Rule 803(4) is whether the statements of the

declarant are reasonably pertinent to diagnosis or treatment.” Id. (citations omitted).

Here, it is important to note that a “statement need not have been made to a

physician” in order to satisfy Rule 803(4)’s requirements for admission. N.C. Gen.

Stat. § 8C-1, Rule 803(4) cmt. Indeed, our Supreme Court has recognized that the

exception could “include ‘statements to hospital attendants, ambulance drivers, or

even members of the family.’ ” Hinnant, 351 N.C. at 288, 523 S.E.2d at 670 (quoting

State v. Smith, 315 N.C. 76, 84, 337 S.E.2d 833, 839 (1985) (quoting N.C. Gen. Stat.

§ 8C-1, Rule 803(4) cmt.)).

The common-law rationale underlying the medical diagnosis or treatment

exception is “equally relevant during the second inquiry under Rule 803(4). If the

declarant’s statements are not pertinent to medical diagnosis, the declarant has no

treatment-based motivation to be truthful.” Id. at 289, 523 S.E.2d at 670. The Court

in Hinnant thus determined that although statements to nonphysicians made before

the declarant obtains treatment might be covered by the exception, “Rule 803(4) does

not include statements to nonphysicians made after the declarant has already

received initial medical treatment and diagnosis.” Id. Nor does the Rule apply where

the declarant “was interviewed solely for purposes of trial preparation.” Id. (emphasis

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added) (citations omitted). But cf. Isenberg, 148 N.C. App. at 38-39, 557 S.E.2d at 574

(concluding that statements were properly admitted under Rule 803(4) where the

trial court found from the evidence that “the purpose of the examination was ‘dual,

in that it was both for the purpose of medical intervention and for the purpose of

future prosecution,’ which meets the first prong of the [Hinnant] test”).

In the instant case, the trial court concluded that the children’s interview

statements were inadmissible under Rule 803(4) because:

3. None of the proffered statements of Jack Corbett and

Sarah Corbett satisfy the first prong of the Hinnant

analysis as they were not intended to obtain a medical

diagnosis or treatment.

4. Likewise, none of the proffered statements of Jack

Corbett and Sarah Corbett satisfy the second prong of the

Hinnant analysis as they were not pertinent to any medical

diagnosis or treatment.

Following similar reasoning, our dissenting colleague concludes that the

children’s statements fail the first prong of the Hinnant test because (1) the forensic

medical interviews were conducted in a child-friendly environment, separate and

distinct from the physical examinations that the children received at the Dragonfly

House; and (2) the objective circumstances of record do not indicate that the children

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

treatment. We disagree.

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Here, the child-friendly setting in which the interviews were conducted favors

admission, rather than exclusion, of Jack’s and Sarah’s statements. Brandi Reagan,

Executive Director of the Dragonfly House, testified at the pretrial hearing on

Defendants’ motion to admit the children’s statements. Reagan explained that the

Dragonfly House is an independent, nationally accredited, non-profit children’s

advocacy center “that provides all-inclusive services to children who have either

disclosed abuse or are suspected of experiencing abuse, which is physical abuse,

sexual abuse, neglect or witnessed violence.” The Dragonfly House provides myriad

services, including a “child medical evaluation,” which Reagan explained is “a type of

exam that is very detailed and thorough that is set forth from the [State] Department

of Social Services . . . us[ing] a program . . . that was established by UNC Chapel

Hill.” The purpose of a child medical evaluation is to determine the child’s needs, and

to diagnose and treat the child accordingly.

A child medical evaluation at the Dragonfly House begins with a meeting of

the child, his or her caregivers, and Heydy Day, child advocate for the Dragonfly

House. Day conducts intake paperwork, answers questions, and informs the parties

what to expect during all stages of the appointment. Reagan testified that “[a]fter

[Day] explains that to the caregiver, she does explain that to the child at their level

so if it’s a younger child, she will explain it in a different way than she would a

teenager. She makes sure that they understand and they know what to expect.”

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Day described how she typically explains the child medical evaluation process

to the parties during intake:

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.

Her job is just to talk with you. That’s all she will

do. But while she is talking with you there are cameras set

up in the room. I typically point out the camera to them in

the lobby. We have security cameras just for security

purposes in the lobby. Outside I will say, “Can you find the

camera in this room?” They will point to it. I say, “Miss

Kim and Miss Brandi have cameras just like that in that

room. The cameras in that room are to record what you

and her talk about because this is really important. This

way I don’t have to talk to all of these different people that

you don’t know.” I usually ask them, “Do you have any

questions? Are you okay with that?” And I will answer

their questions. After that I say, “While you are talking

with Miss Brandi or Miss Kim your caregiver will be

talking with our doctor. Our doctor will be asking

questions about your health throughout your whole life.”

I typically give kids examples of those questions

such as, have you ever been in the hospital, have you ever

had surgeries, broken bones, allergies, take medicine

regularly, just to give the child an idea what the doctor is

going to be talking to their caregiver about. I say, “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.” I

say, “there is a nurse, . . . she’s going to help you pick out a

T-shirt and a blanket for the medical exam.”

....

“Once you come out of the bathroom, the nurse and

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doctor will ask you how much you weigh, how tall you are.”

I usually say, “The thing that gives you a hug for your blood

pressure, your vision, your hearing, your height, your head

check, back, bottom, private area, legs and feet.” I do a

head to toe of myself to give them an overview of what is to

be expecting [sic]. I say, “Is that okay with you?” I get a

variety of responses on that from different children. I say,

“Do you have any questions for me about that?” I answer

the questions if they have any. Then I say, “Okay I will go

ahead and let everybody know I have spoken with you and

then Miss Kim or Miss Brandi will come and get you.”

Then I will defer them.

The Dragonfly House is “set into an old home.” Forensic medical interviews2

and physical examinations are conducted in separate bedrooms across the hall from

one another. The interview room is “intentionally designed and laid out to be . . .

‘child friendly’ ”: there is an easel “in case the child needs to draw,” along with

anatomically correct dolls, Play-Doh, and tissues, among other items.

Nonetheless, the room’s child-friendly design does not negate its clinical

purpose. Reagan testified that the room’s two “chairs are positioned so that they can

be seen from two cameras on the wall; one is – you can see everything in the room

from both cameras; one is primarily focused on one chair. The other is focused on the

other chair.” Members of the child’s “multi-disciplinary team”3 may view the forensic

2 According to Reagan, a “forensic interview” is “an interview 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.”

3 Davidson County Sheriff’s Detective Mark Hanna explained, “We have what’s called an MDT,

multi-disciplinary team, which involves law enforcement, DSS and the Dragonfly House. Each of those

entities work together to figure out what’s going on in the child’s life, how to properly treat the child,

and get services for the child.”

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medical interview in an adjacent “observation room,” via a one-way, live audio-visual

feed.

In the instant case, 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. The children were informed

before their interviews that they would be receiving medical interviews together with

physical examinations as part of their full evaluations at the Dragonfly House. See

Hinnant, 351 N.C. at 289, 523 S.E.2d at 670 (“Rule 803(4) does not include statements

to nonphysicians made after the declarant has already received initial medical

treatment and diagnosis.”).

Day testified that during intake, she informed Jack and Sarah that they

“[we]re going to be interviewed and . . . have a medical exam.” Day did not recall

either child asking any questions during intake; in her view, the children “seem[ed]

to understand” both components of the child medical evaluation. Contra State v.

Bates, 140 N.C. App. 743, 746-47, 538 S.E.2d 597, 600 (2000) (concluding that the

record failed to demonstrate that the child possessed the requisite intent under Rule

803(4) where the child “did not know why she was there” and the psychologist “never

made it clear that the child needed treatment”; neither the psychologist nor the “

‘child-friendly’ room” in which the interview was conducted “emphasize[d] the need

for honesty”; and “the child’s statements lack[ed] inherent reliability because of the

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nature of [the psychologist’s] leading questions”), disc. review denied, 353 N.C. 383,

547 S.E.2d 20 (2001).

Moreover, Reagan testified that the Dragonfly House is child-friendly by

design: the intention is to ease any anxiety that the child may be experiencing upon

arrival, and to encourage open and frank discussions. Day testified that in her

experience, “the lobby is the most comfortable place” for families to conduct intake

procedures, likely due to the child-friendly décor and the presence of many toys,

children’s books, and puzzles. Children come to the Dragonfly House because they

are either confirmed or suspected victims of some type of abuse or other trauma; they

are more likely to be truthful with an unknown interviewer if they are at ease and

feel safe and comfortable with their surroundings. Cf. State v. McLaughlin, 246 N.C.

App. 306, 321, 786 S.E.2d 269, 281 (rejecting the defendant’s contention that some of

the nurse’s interview questions, “such as the importance of telling the truth, were not

pertinent to medical diagnosis or treatment[,]” because “these questions were crucial

to establishing a rapport with the victim and impressing upon him the need to be

open and honest about very personal and likely embarrassing details pertinent to his

well-being”), appeal dismissed and disc. review denied, 368 N.C. 919, 787 S.E.2d 29

(2016).

Both the dissent and the trial court focus heavily on the children’s responses

to one of Reagan’s initial inquiries: “Tell me why you’re here.” Sarah replied,

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“Because my dad died.” Jack responded, “[M]y 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.” The trial court gleaned from these responses that “[t]he children understood

the impetus of these interviews was to affect future legal custody determinations and

not to obtain medical evaluation or treatment.” The dissent concludes that

Defendants fail “to affirmatively establish that Sarah or Jack had the requisite intent

to make statements” for medical diagnosis or treatment purposes during their

forensic interviews. Dissent at 21. Both analyses under Rule 803(4) miss the point.

Under the first prong of the Hinnant test, the focus is not whether the children

independently sought out medical treatment, nor even whether their statements

evince that they might do so if they were able. Instead, the focus must be on whether

all of the objective circumstances of record demonstrate that the children understood

the overall medical purpose and significance of their interviews at the Dragonfly

House, and were accordingly motivated to be truthful. See State v. Lewis, 172 N.C.

App. 97, 104, 616 S.E.2d 1, 5 (2005) (concluding that the first part of the Hinnant

inquiry was satisfied where “the children were old enough to understand the

interviews had a medical purpose, and they indicated as such[,]” and “the

circumstances surrounding the interviews created an atmosphere of medical

significance”—even though “the interviews took place in a ‘child-friendly’ room, not a

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medical examination room”—because they were conducted “at a medical center, with

a registered nurse, immediately prior to a physical examination”).

Here, the objective circumstances of record support the conclusion that the

children had the requisite intent under Rule 803(4). Reagan asked non-leading, open-

ended questions, and she instructed the children that they should not “guess at

anything.” Both Day and Reagan emphasized the overall significance of the child

medical evaluations that Jack and Sarah would be receiving at the Dragonfly House.

Day testified that during intake, she points to the security cameras in the lobby and

tells children that there will be similar cameras in the interview room “to record what

you and [Miss Kim or Miss Brandi] talk about because this is really important.”

(Emphasis added).

Reagan testified that before she begins interviewing a child, she explains her

“rules” for the interview. Reagan first establishes that the child knows the difference

between the truth and a lie. Reagan also instructs the child to correct her if she

makes a mistake, and explains that if she asks a question that the child cannot

answer, “it’s okay to say you don’t know.”

Jack and Sarah were of sufficient age and maturity to understand the medical

significance of the overall evaluations. See id. (“[T]he children were old enough to

understand the interviews had a medical purpose, and they indicated as such.”).

Furthermore, it is evident from the children’s conduct and responses—both during

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Reagan’s statement of the “rules” and throughout their interviews—that they

understood the importance of honesty. Sarah self-corrected when she misspoke;

when her answer was unclear, Reagan gently redirected Sarah to the previous topic

until she provided a clear answer. Moreover, not only did Reagan convey the

importance of honesty, when asked whether anyone had told them what to say during

their interviews prior to their arrival at the Dragonfly House, both children

affirmatively stated that they had only been instructed to “tell the truth.”

Jack was initially reluctant to speak about his father’s death during his

interview with Reagan. Who could blame him? It would be a rare ten-year-old boy

indeed who relished the opportunity to speak openly with a complete stranger about

what must be deeply painful, complicated feelings regarding the violent, tragic death

of his father—and in Jack’s case, his last remaining biological parent—mere hours

after attending his funeral. But this is precisely why Jack required the Dragonfly

House’s services, and why he and Sarah were referred for examinations: they were

present during an extremely traumatic event involving the death of their father, and

they may have been witnesses to, or victims of, domestic abuse. See McLaughlin, 246

N.C. App. at 321, 786 S.E.2d at 281 (“[H]aving the victim relate the details from

beginning to end helped the medical practitioners to evaluate the extent of the mental

and physical trauma to which the victim was exposed, inquire as to whether the

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victim was out of danger, and discover whether other abusers or victims may have

been involved.”).

There is no requirement under the Rule or the Hinnant test that children

independently seek medical treatment, nor even request it. Children do not have the

ability to seek medical assistance without the resources, financial or otherwise, of

their parents or caregivers. See Smith, 315 N.C. at 84, 337 S.E.2d at 840 (“[Y]oung

children cannot independently seek out medical attention, but must rely on their

caretakers to do so.”). Nor do they have the emotional acumen or the language

necessary to effectively seek help when the medical need involves mental health.

Indeed, this is an area with which many adults struggle. In asking children who lack

sufficient knowledge even to verbalize the trauma that they have experienced to

independently seek medical assistance, the trial court demands too much.

Our courts have a strong precedent of allowing this type of evidence in cases

involving children. Most often it is the State seeking its admission. See, e.g.,

McLaughlin, 246 N.C. App. at 321, 786 S.E.2d at 281; State v. Burgess, 181 N.C. App.

27, 34-35, 639 S.E.2d 68, 74 (2007), cert. denied, 365 N.C. 337, 717 S.E.2d 384 (2011);

Lewis, 172 N.C. App. at 105, 616 S.E.2d at 6; State v. Thornton, 158 N.C. App. 645,

649-51, 582 S.E.2d 308, 310 (2003); Isenberg, 148 N.C. App. at 36, 557 S.E.2d at 573.

The Dragonfly House is just one of many similar team-oriented children’s

advocacy centers statewide. Excluding the evidence in this case runs counter to

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existing precedent and muddies the law moving forward. Cf. McLaughlin, 246 N.C.

App. at 322 n.5, 786 S.E.2d at 282 n.5 (“We do not posit that the [children’s advocacy

center] interview is a substitute for in-court testimony, but, where, as here, the

declarant is unavailable, his video recorded medical interview is sufficiently reliable

to be admissible. Therefore, the jury is able to assess the testimony, to observe the

demeanor of the declarant, to determine the credibility and trustworthiness of his

statements, and thereby perform their function as a jury.”).

Having determined that the children possessed the requisite intent under Rule

803(4), we proceed to the second inquiry of the Hinnant test. We conclude that the

children’s statements were reasonably pertinent to medical treatment or diagnosis,

and therefore, should have been admitted pursuant to Rule 803(4).

Following their forensic medical interviews, Sarah and Jack received physical

examinations by Dr. Amy Suttle, the pediatrician for the Dragonfly House. Based

upon the results of the examinations, Dr. Suttle diagnosed both children as “victim[s]

of child abuse based on exposure to domestic violence” and recommended that they

“receive mental health services” as treatment. The children attended one therapy

session in North Carolina on 10 August 2015, following a referral by the Dragonfly

House personnel, and they began attending counseling for grief and trauma in early

September 2015, after they were taken to Ireland.

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As Defendants argued at the pretrial hearing on the admissibility of these

statements, Jack and Sarah were referred to the professionals at Dragonfly House in

order to obtain examinations “primarily for their health, safety, and welfare.” The

medical interviews and the physical examinations were conducted for the same

purpose and as part of the same overall child medical evaluation. Both parts were

used to inform the ultimate conclusion in each child’s medical evaluation, and

conducting one part without the other would render the evaluation incomplete.

The children’s statements evince the requisite intent under Rule 803(4), and

the statements clearly pertain to medical treatment or diagnosis. Thus, the trial

court erred in excluding these statements.

2. Residual Exception

Even if the children’s Dragonfly House forensic medical interview statements

were inadmissible under the medical diagnosis or treatment exception to the rule

against hearsay, these statements are admissible under the residual exception.

The residual exception to the rule against the admission of hearsay is codified

by N.C. Gen. Stat. § 8C-1, Rules 803(24) and 804(b)(5). Rules 803(24) and 804(b)(5)

are “substantively nearly identical”: “Rule 804(b)(5) is a verbatim copy of Rule

803(24), except that Rule 804(b)(5) also requires that the declarant be unavailable

before the hearsay may be admitted and Rule 803(24) does not.” State v. Triplett, 316

N.C. 1, 7, 340 S.E.2d 736, 740 (1986). For purposes of Rule 804, a declarant is

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“unavailab[le] as a witness” if, inter alia, he “[i]s absent from the hearing and the

proponent of his statement has been unable to procure his attendance . . . by process

or other reasonable means.” N.C. Gen. Stat. § 8C-1, Rule 804(a)(5).

As set forth under either Rule, the residual exception permits admission of

[a] statement not specifically covered by any of the

foregoing exceptions but having equivalent circumstantial

guarantees of trustworthiness, 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.

However, a statement may not be admitted under this

exception unless the proponent of it gives written notice

stating his intention to offer the statement and the

particulars of it, including the name and address of the

declarant, to the adverse party sufficiently in advance of

offering the statement to provide the adverse party with a

fair opportunity to prepare to meet the statement.

N.C. Gen. Stat. § 8C-1, Rules 803(24), 804(b)(5).

In order for hearsay statements to be admissible under Rule 803(24) or Rule

804(b)(5), the trial court must determine:

(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).

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We review a trial court’s ruling on the admissibility of hearsay statements

under the residual exception for abuse of discretion. State v. Sargeant, 365 N.C. 58,

62-63, 707 S.E.2d 192, 195 (2011); Smith, 315 N.C. at 97, 337 S.E.2d at 847. The 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.” Sargeant, 365 N.C. at 65, 707 S.E.2d at 196 (citing Smith, 315 N.C. at 97,

337 S.E.2d at 847). “If the trial court either fails to make findings or makes erroneous

findings, we review the record in its entirety to determine whether th[e] record

supports the trial court’s conclusion concerning the admissibility of a statement

under a residual hearsay exception.” Id. “If we conclude that the trial court erred in

excluding [Jack’s and Sarah’s] hearsay statement[s], we consider whether

[D]efendant[s] w[ere] prejudiced.” Id. at 65, 707 S.E.2d at 197.

Defendants contend that the trial court committed prejudicial error by

concluding that the following evidence was inadmissible under the residual

exception: (1) the children’s statements during their interviews with the Union

County DSS social worker on 3 August 2015; and (2) Jack’s and Sarah’s statements

during their child medical evaluations at the Dragonfly House on 6 August 2015.4

We agree.

4Contrary to their arguments at trial, Defendants do not contend on appeal that the 3 August

2015 Union County DSS interview statements were admissible under the medical diagnosis or

treatment exception; consequently, we limit our consideration of the admissibility of those statements

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In its written order, the trial court determined, in relevant part:

1. The declarant minor children, Jack Corbett and Sarah

Corbett, are unavailable for purposes of N.C.G.S. 8C-1,

Rule 803.

....

6. Admissibility of hearsay statements offered pursuant to

the residual exception, N.C.G.S. 8C-1, Rule 803(24) is

governed by the six-prong test set out by our Supreme

Court in State v. Smith, 315 N.C. 76 (1990).

7. This court must first consider whether proper notice has

been given. The defendant provided written notice to the

State more than 60 days in advance of trial. This notice

was proper and timely.

8. This court next considers whether each proffered

statement is specifically covered under one of the other

hearsay exceptions. The defendants’ only contention of

another applicable exception is the medical treatment or

diagnosis exception, Rule 803(4). The court has

determined the statements are not admissible pursuant to

that exception. The court has reviewed all other exceptions

set out in the Rule and finds that none are applicable.

9. This court must next consider whether the proffered

statements are trustworthy. “[A] hearsay statement . . .

may be admissible under the residual exception if it

possesses ‘circumstantial guarantees of trustworthiness’

equivalent to those required for admission under the

enumerated exceptions.” Smith, at 93.

to the residual exception, in accordance with N.C.R. App. P. 28(b)(6). Furthermore, as explained in

Section IV(A)(1) above, the children’s Dragonfly House statements should have been admitted under

the medical diagnosis or treatment exception. But even assuming, arguendo, that Sarah’s and Jack’s

statements from the child medical evaluations conducted at the Dragonfly House on 6 August 2015

were inadmissible under Rule 803(4), for the reasons set forth herein, the trial court nevertheless erred

by excluding the statements under the residual exception.

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....

14. The proffered statements do not have circumstantial

guarantees of trustworthiness. Further, this court having

concluded the statements are not trustworthy, the court

need not continue to the additional prongs of the Smith

analysis.

(Alteration in original).

The third inquiry of the trial court’s analysis, which asks whether the proffered

statement possesses “circumstantial guarantees of trustworthiness” akin to those

required for admission under other exceptions, “has been called ‘the most significant

requirement’ of admissibility” under the residual exception to the rule against the

admission of hearsay. Smith, 315 N.C. at 93, 337 S.E.2d at 844-45. In evaluating

the “circumstantial guarantees of trustworthiness” of a statement pursuant to Rules

803(24) and 804(b)(5), the trial court must consider “(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.” Triplett, 316 N.C. at 10-11, 340 S.E.2d at 742. “Also pertinent to this

inquiry are factors such as the nature and character of the statement and the

relationship of the parties.” Id. at 11, 340 S.E.2d at 742.

Here, the trial court concluded that the proffered statements lack

circumstantial guarantees of trustworthiness because:

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11. The court is not assured of the personal knowledge of

the declarants as to the underlying events described in that

both children identified the source of their knowledge being

nothing more than statements of a defendant and that

defendant’s mother. The declarations contain no reference

to seeing, hearing or perceiving anything about the events

described except these statements of others.

12. The court is 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. The children appear to have known that

if they were not in the custody of defendant Molly Corbett

they would be taken to live in the Republic of Ireland with

relatives of their father.

13. The proffered statements were specifically recanted

and disavowed.

Defendants challenge the following findings of fact underlying the above

conclusions: (1) findings #15 and #20, which pertain to the children’s personal

knowledge; (2) finding #21, 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”; and (3) finding #22, that the statements regarding Molly and

Jason’s relationship “have been specifically recanted” by the children in diary entries

and a Skype interview between Jack and a member of the district attorney’s office.

We consider each of Defendants’ arguments in turn.

Findings of fact #15 and #20 provide:

15. The children’s statements did not describe actual

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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

declarations of the defendant Molly Corbett and her

mother.

(Alterations in original).

Insofar as the trial court limited its consideration of the children’s statements

during their interviews with Union County DSS and Dragonfly House personnel on

3 and 6 August 2015, respectively, to “the events surrounding the homicide of Jason

Corbett” alone, findings of fact #15 and #20 are erroneous. See Sargeant, 365 N.C. at

65, 707 S.E.2d at 196 (“If the trial court either fails to make findings or makes

erroneous findings, we review the record in its entirety to determine whether th[e]

record supports the trial court’s conclusion concerning the admissibility of a

statement under a residual hearsay exception.” (emphasis added)).

As explained in Section IV(A)(1) above, the Davidson County Sheriff’s Office

referred the children to the Dragonfly House, due to concerns that they may have

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witnessed or experienced domestic abuse. Similarly, Union County DSS personnel

interviewed the children at the request of Davidson County DSS, to which this matter

had been referred by the Davidson County Sheriff’s Office, following allegations of

domestic violence and substance abuse in the home. On 3 August 2015, Davidson

County DSS faxed a letter to Union County DSS, stating, inter alia:

To Whom This May Concern:

Our agency received and accepted a [Child Protective

Services] referral in reference to [Jack and Sarah Corbett]

on 08/02/2015 with a 72 hours [sic] response time, however

due to the nature of this report and the concerns that Molly

Corbett, step-mother, may leave to Tennessee with the

children we asked that you assist us in initiating this case

TODAY (08/03/2015). Please interview each children [sic]

privately to address the [Child Protective Services]

concerns as well as questions surround [sic] SEEMAPS.

Please interview the mother and her parents, Mr. and Mrs.

Martens, regarding the incident that was alleged in the

[Child Protective Services] referral.

Due to the death of the children’s father, our Sheriff’s

Office has scheduled a [child medical evaluation] for both

children. This [child medical evaluation] have [sic] been

schedule [sic] for Thursday (08/06/2015) at 1:00 pm. Please

provide the family with the attached brochure regarding

our [child advocacy center]. I’ve informed Mrs. Corbett that

she cannot be present during the children’s [child medical

evaluation] due to the nature of the allegations. Mrs.

Corbett reported that her mother can transport the

children to and from their appointment. Please address

this in the safety plan with Mrs. Corbett and her mother.

(Emphases added).

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This letter plainly states that the primary purpose of the Union County DSS

interviews—like the Dragonfly House interviews—was to ensure the immediate

safety and well-being of the children. Indeed, as the trial court observed in finding of

fact #16, the Union County DSS interviews were conducted “in regard to alleged

alcohol and/or substance abuse by the defendant Molly Corbett and concern about

physical abuse of Jack Corbett.” Moreover, it is also clear from this letter that the

utmost care was taken to protect the objectivity, integrity, and confidentiality of the

children’s interviews, both those conducted by DSS personnel as well as those

conducted at the Dragonfly House. Davidson County DSS requested that Union

County DSS interview each child privately, and specifically noted that Molly had

already been instructed that her presence was not permitted during the children’s

Dragonfly House interviews.

The trial court’s findings of fact #21 and #22 are similarly flawed in their

reasoning:

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 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

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Ireland. Jack Corbett recanted his statements in diary

entries and during a recorded interview with members of

the District Attorney’s Office.

Finding of fact #21 is erroneous in that it overlooks the overwhelming evidence

that both children understood the seriousness of the proceedings and the importance

of truthfulness, as well as the temporal proximity of the children’s statements to

Jason’s death. Although both children indicated that they loved Molly and desired to

remain in her custody, this, alone, is not indicative of a dishonest motive, particularly

where there is substantial evidence to the contrary.

Moreover, this finding discounts statements by Jack and Sarah that tend to

refute that “the children feared that they were going to be ‘taken away from their

mother’ and removed to another country by their father’s relatives.” Jack told

Reagan that he was “[a]ngry and upset” about what had happened, and he wondered,

“How can people be so mean?” When Reagan asked him what he meant, Jack

clarified, “How my dad could get so angry. How my grandpa could hit him with a bat

and my mom hit him with a brick.” Sarah explained to Reagan that she held Molly’s

hand at Jason’s funeral earlier that day on 6 August 2015, “[b]ecause my aunt, she’s

– she’s real nice, but she gets emotional, and she doesn’t want me and Jack to have a

bad life. She wants us to have the best life that she can make for us. But my mom

wants the same.”

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As for the children’s alleged recantations, 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. The diary entries were

never authenticated before the trial court. Moreover, while Molly was explicitly

prohibited from attending the children’s interviews with Union County DSS and

Dragonfly House personnel, Jack’s Skype interview with the district attorney’s office

was conducted from his home in Ireland, with his aunt—Jason’s sister—and uncle

upstairs and within earshot. Cf. Sargeant, 365 N.C. at 66, 707 S.E.2d at 197 (“We

emphasize again that 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 he made it. The agreement between [the

defendant’s co-conspirator] and the State, reached when [the co-conspirator] provided

his statement, appears designed to ensure his truthfulness.”).

Both the Union County DSS and the Dragonfly House interviews covered much

more information than just the specific “events surrounding the homicide of Jason

Corbett,” to wit: Jason’s worsening anger management issues; Molly and Jason’s

ongoing relationship troubles, including alleged verbal, emotional, and physical

abuse; and, perhaps most importantly, the children’s awareness and perception of

these issues. Furthermore, the most probative of the children’s statements are all

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clearly based upon their own personal knowledge. For example, during her 3 August

2015 Union County DSS interview, Sarah told the social worker that “what she likes

most about home” is “being with her mom when her dad is not there . . . because her

dad fights her mom and sometimes he brings it out on her. She stated sometimes she

will get in trouble for saying stop.” Sarah told the social worker that “her father

screams and yells” and “is angry on a regular basis”; when her parents’ fighting “is

really bad, . . . she has to stay in her room for a long time.” Sarah “has seen her dad

hit her mom and pull her hair.” Sarah shared that, on one occasion, she “saw her dad

smack her mom. [Sarah] stated that her mom fell, got up and then went to the car.”

Similarly, Jack told the social worker “that what he does not like [about] being

at home is his parents fighting. Jack stated physically and verbally.” Jack said “that

his dad gets mad at his mom for no good reason; . . . she can do nothing right.”

According to Jack, Jason “curses his mom; [Jack] stated that he has seen his dad a

few times hit his mom with his fist anywhere on her body that he can.”

The children’s Dragonfly House interviews are lengthy and broadly

substantive. But perhaps the most material of evidence that may be gleaned from

the Dragonfly House interviews are statements that the children made based upon

their personal knowledge and never recanted, and which unquestionably pertained

to “the events surrounding the homicide of Jason Corbett.”

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Sarah told Reagan that she often experienced difficulty sleeping through the

night, and in such instances, she would approach Molly for comfort. Jason, however,

disliked it when Sarah got out of bed and Molly attended to her in the middle of the

night, and he would get angry with them both. The evidence shows that Sarah’s

nightmare and her consequent appearance in Jason and Molly’s bedroom on 2 August

2015 was the precipitating event that caused Jason to grow angry with Molly, thereby

starting the fight that led to the fatal altercation:

Ms. Reagan: Okay. And had there ever been any times that

you did wake up during the night in the past?

Sarah Corbett: Yeah.

Ms. Reagan: Okay. What would happen when you do wake

up during the night?

Sarah Corbett: I would go downstairs because I usually had

a nightmare. But I think what caused my dad being really

mad that night was because, um, my mom kept on coming

upstairs because I – like I have fairies on my bed, and I

really get scared of those things, because they like look like

there are spiders and lizards on my bed. So that’s why my

mom had to keep on coming up. I couldn’t fall asleep until

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

mad.

Ms. Reagan: Okay. So you told me that you had fallen

asleep downstairs and someone carried you upstairs. Did

you wake up at any point after that?

Sarah Corbett: Nope.

Ms. Reagan: Okay. So you said your mom had to put

another sheet on. How did you know that?

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Sarah Corbett: Because before I went to sleep, she –

because I woke up, like, in the middle – like not in the

middle, but like – I’m sorry I said that I didn’t wake up.

Ms. Reagan: It’s okay.

Sarah Corbett: I woke up just a little bit. Um, because it’s

like I just woke up before my mom put me in my bed, and

I put – and I put the – I put the covers on me, and I tried

to go to bed, but I couldn’t.

Ms. Reagan: Okay.

Sarah Corbett: And at first I thought I had a big lizard in

my room. And it freaked me out.

Ms. Reagan: And you said she kept coming and checking

on you?

Sarah Corbett: Uh-huh.

Ms. Reagan: And why do you think that’s what they were

arguing about?

Sarah Corbett: Because my dad, like, doesn’t like my mom

sleeping, like, with me. He wants her to be upstairs with

him.

Ms. Reagan: Have you ever heard them argue about that

before?

Sarah Corbett: Yes.

Bedsheets matching those described by Sarah are visible on the floor in State’s

Ex. 62, a photograph of Sarah’s bedroom.

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Jack’s Dragonfly House interview also contains statements, based upon his

personal knowledge, that are both material and highly probative to Defendants’

claims of self-defense and defense of a family member. The State established that

there were two possible murder weapons: the baseball bat, which Tom brought with

him from the basement upon hearing the commotion upstairs, and the brick paver,

which was already sitting on Molly’s dresser in the bedroom when the affray began.

The brick paver’s presence in the master bedroom was never explained to the jury.

The admission of Jack’s Dragonfly House statements would therefore have provided

a reasonable answer to a significant and unanswered question:

Ms. Reagan: Okay. And then tell me about this cinder

block that you were talking about. Like a brick that your

mom used?

Jack Corbett: Um, we were going to paint it, because we

just – we just got flowers that we were going to plant in our

front yard or back yard, and 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. And then

that’s where it was.

(Emphasis added).

Like Sarah’s statements about Jason’s anger following her nightmare and

appearance in Jason and Molly’s bedroom, Jack’s statement about the brick paver

tends to corroborate Molly’s written statement from 2 August 2015. Moreover, no

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other evidence admitted at trial is as material or as probative of Defendants’ version

of events, and thus their defense, as either of these statements.

After finding that the children were unavailable to testify for purposes of N.C.

Gen. Stat. § 8C-1, Rule 803, the trial court failed to consider the practical effect of

that finding in conducting the rest of its analysis under the residual exception. See

Triplett, 316 N.C. at 9, 340 S.E.2d at 741 (observing that “the necessity for use of the

hearsay testimony often will be greater” and “the inquiry . . . may be less strenuous”

under Rule 804(b)(5) than Rule 803(24), “since the declarant will be unavailable”).

The trial court’s determination that there were insufficient “circumstantial

guarantees of trustworthiness” to support admission of the children’s statements was

“made on the basis of inaccurate and incomplete findings of fact used to reach

unsupported conclusions of law.” Sargeant, 365 N.C. at 67, 707 S.E.2d at 198.

Accordingly, the trial court erred by excluding the children’s statements during

their interviews by Union County DSS personnel on 3 August 2015, and at the

Dragonfly House on 6 August 2015. Moreover, for the reasons more fully explained

in Section VI below, the trial court’s exclusion of this evidence prejudiced Defendants’

ability to present a complete and meaningful defense. See id. at 68, 707 S.E.2d at 198

(“As a matter of fundamental fairness, the exclusion of [the co-conspirator’s]

statement deprived the jury of evidence that was relevant and material to its role as

finder of fact.”).

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B. Bloodstain Pattern Analysis

We next address Defendants’ challenge to the testimony of Stuart James, the

State’s expert witness in bloodstain pattern analysis. Defendants contend that

James’s testimony regarding the untested blood spatter on the underside hem of

Tom’s boxer shorts and the bottom of Molly’s pajama pants was not sufficiently

reliable for admission under N.C. Gen. Stat. § 8C-1, Rule 702(a). We agree.

1. Issue Preservation

During voir dire, Defendants raised a targeted challenge to the reliability of

James’s proposed testimony concerning his analysis of certain bloodstains on the

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

Ivory, a forensic scientist with the North Carolina State Crime Laboratory, had

testified the previous day that, unlike stains appearing elsewhere on these and other

articles of clothing worn by Defendants during the altercation with Jason, the stains

at issue never received even basic, or “presumptive,” testing to confirm the presence

of blood.

Defendants questioned James about several of the conclusions in his

“Supplementary Report of Bloodstain Pattern Analysis,” which James drafted on 16

February 2016 after traveling to North Carolina to examine certain bloodstained

evidence, including Tom’s boxer shorts and Molly’s pajamas. Defendants challenged

the following conclusions from James’s three-page Supplementary Report:

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 The impact spatters on the front underside hem of

the left leg of the shorts are consistent with the

wearer of the shorts close to and above the source of

spattered blood. The source of the impact spatters

is most likely the head of Jason Corbett while it was

close to the floor in the bedroom.

....

 The impact spatters on the front lower legs and cuff

of . . . the pajama bottoms are consistent with the

wearer in proximity to Jason Corbett when he was

close to the floor when blows were struck to his head.

James acknowledged that because none of the stains underlying these

conclusions were ever submitted for testing—a fact that he did not learn until the day

before he testified in court—James could not state “with a scientific certainty” that

the stains on either garment were, in fact, blood. James also conceded that he had

never seen—neither in person nor via photograph—Tom wearing the boxer shorts,

and consequently, he did not know how the boxer shorts “laid on [Tom’s] body” or

whether “the cuff was flipped up or down or anything along those lines[.]”

Nevertheless, James was permitted to testify that the State’s failure to test the

evidence in question did not “really . . . change much of [his] opinion. It is still impact

spatter with the wearer of the shorts in proximity with the source of the blood.” When

the trial court asked whether James “consider[ed] the opinions that [he’s] offered and

as outlined in both of these reports to be the product of reliable principles and

methods in bloodstain pattern analysis[,]” James responded, “Yes, I do.”

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Noting that James’s own peer-reviewed treatise, The Analysis of Blood and

Forensic Serology, mandates that “an identification of blood be established to a

scientific certainty before it can be presented in court[,]” Defendants asserted that

the proposed expert testimony was not “properly before this Court, pursuant to 702-

(a).” More specifically, Defendants contended that (1) the challenged testimony was

not “based on sufficient facts or data,” in that James had not been provided with the

necessary information “to render that particular opinion within the broader scope of

his other opinions”; and (2) as a result, James was not provided “the opportunity to

apply the principles and methods reliabl[y] to the facts in this case.”

At the conclusion of voir dire, the trial court ruled that, notwithstanding the

failure to identify the stains as blood to “a scientific certainty,” James would be

permitted to testify to his expert opinion before the jury.

Our dissenting colleague concludes that Defendants waived appellate review

of this issue because, despite their careful and extensive objections during voir dire,

Defendants failed to object in the presence of the jury when the evidence was actually

introduced at trial. Dissent at 43. However, the transcript reveals that Defendants

did, in fact, timely object, and did so on multiple occasions before the jury throughout

James’s testimony. This issue was properly preserved for appellate review.

Tom’s counsel first objected when the State tendered James as an expert in the

field of bloodstain pattern analysis. Defendants did not object throughout James’s

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testimony providing a general overview of the field of bloodstain pattern analysis, nor

did they raise any substantive objections while James began to testify to his

conclusions regarding the blood spatter at the scene in the instant case.

However, Defendants 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. The trial court admitted

James’s Supplementary Report as State’s Ex. 200 over Defendants’ explicit objections

to James’s conclusions and supporting testimony. Additionally, Defendants later

objected when the State submitted photographs of Tom’s boxer shorts and Molly’s

pajamas, which James enhanced under his digital microscope; the trial court

overruled Defendants’ objections and admitted the photos as State’s Ex. 201-215 and

216-237, respectively. Moreover, when the State’s direct examination of James

continued to a second day, Defendants renewed their previous objections for the

record in the presence of the jury before his testimony resumed.

It is, therefore, clear that Defendants properly objected and preserved this

issue for appeal, and we proceed to the merits of their argument.

2. Rule 702(a)

Defendants contend that the trial court erred by admitting James’s expert

testimony regarding the untested stains on the underside of Tom’s boxer shorts and

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the bottom of Molly’s pajama pants, because the testimony did not satisfy Rule

702(a)’s reliability test or the expert’s own admitted standards for reliability. We

agree.

“Whether expert witness testimony is admissible under Rule 702(a) is a

preliminary question that a trial judge decides pursuant to” N.C. Gen. Stat. § 8C-1,

Rule 104(a). State v. McGrady, 368 N.C. 880, 892, 787 S.E.2d 1, 10 (2016) (citations

omitted).

In answering this preliminary question, the trial judge is

not bound by the rules of evidence except those with respect

to privileges. To the extent that factual findings are

necessary to answer this question, the trial judge acts as

the trier of fact. The court must find these facts by the

greater weight of the evidence. As with other findings of

fact, these findings will be binding on appeal unless there

is no evidence to support them.

Id. at 892-93, 787 S.E.2d at 10-11 (internal quotation marks and citations omitted).

The trial court must then determine, from its findings of fact, “whether the

proffered expert testimony meets Rule 702(a)’s requirements of qualification,

relevance, and reliability.” Id. at 893, 787 S.E.2d at 11. On appeal, we review the

trial court’s ruling for abuse of discretion. Id. “[A] trial court may be reversed for

abuse of discretion only upon a showing that its ruling was manifestly unsupported

by reason and could not have been the result of a reasoned decision.” Id. (citation

omitted).

Rule 702(a) provides:

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(a) If scientific, technical or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion, or otherwise, 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. Gen. Stat. § 8C-1, Rule 702(a).

As noted above, “Rule 702(a) has three main parts, and expert testimony must

satisfy each to be admissible.” McGrady, 368 N.C. at 889, 787 S.E.2d at 8. First, the

witness must be “qualified as an expert,” such that the witness is “in a better position

than the trier of fact to have an opinion on the subject[.]” Id. at 889, 787 S.E.2d at 9.

Second, the expert testimony must be relevant, and must “assist the trier of

fact to understand the evidence[.]” Id. at 889, 787 S.E.2d at 8. “But relevance means

something more for expert testimony. In order to ‘assist the trier of fact,’ expert

testimony must provide insight beyond the conclusions that jurors can readily draw

from their ordinary experience.” Id. (internal citation omitted).

Third, and most pertinent to our analysis here, the expert testimony must be

reliable. When evaluating the reliability of expert testimony, “[t]he primary focus of

the inquiry is on the reliability of the witness’s principles and methodology, not on

the conclusions that they generate[.]” Id. at 890, 787 S.E.2d at 9 (internal quotation

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marks and citations omitted). “However, conclusions and methodology are not

entirely distinct from one another, and . . . the court is not required to admit opinion

evidence that is connected to existing data only by the ipse dixit of the expert.” Id.

(internal quotation marks and citations omitted).

“The precise nature of the reliability inquiry will vary from case to case[,]” and

“determining how to address the three prongs of the reliability test” is within the trial

court’s discretion. Id. In the context of scientific testimony, McGrady delineates the

following additional factors “from a nonexhaustive list” that may bear upon

reliability:

(1) whether a theory or technique can be (and has been)

tested; (2) whether the theory or technique has been

subjected to peer review and publication; (3) the theory or

technique’s known or potential rate of error; (4) the

existence and maintenance of standards controlling the

technique’s operation; and (5) whether the theory or

technique has achieved general acceptance in its field.

Id. at 890-91, 787 S.E.2d at 9 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

579, 593-94, 125 L. Ed. 2d 469, 482-83 (1993)) (internal quotation marks omitted).

Again, these “factors are part of a flexible inquiry, so they do not form a

definitive checklist or test[.]” Id. at 891, 787 S.E.2d at 9-10 (citations and internal

quotation marks omitted). “Whatever the type of expert testimony, the trial court

must assess the reliability of the testimony to ensure that it complies with the three-

pronged test in Rule 702(a)(1) to (a)(3).” Id. at 892, 787 S.E.2d at 10.

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3. Analysis

Defendants do not challenge James’s qualifications to testify as an expert in

the field of bloodstain pattern analysis. Indeed, the record shows that James is

unquestionably qualified to provide expert testimony on the subject. Rather,

Defendants contend that James’s conclusions regarding the untested stains on the

underside of Tom’s boxer shorts and the bottom of Molly’s pajama pants are not the

product of reliable principles and methods applied reliably to the facts of this case.

We agree.

James coauthored a peer-reviewed treatise on the subject of bloodstain pattern

analysis, which sets forth the methodology and standards governing the field. As

established at trial, James’s treatise provides, inter alia: “Although it might seem

that visual identification of a stain is blood, it would be sufficient to warrant further

analysis of the material, proper scientific approach and legal requirements dictate

that such an identification be established to a scientific certainty before it can be

presented in court[.]” And when asked about the routine protocol and procedures

used in conducting bloodstain pattern analysis, James testified, consistent with his

treatise, that the stains should be subject to presumptive, confirmatory, and DNA

testing—in that order—before an analysis of the spatter is conducted.

Yet, James’s analysis of the challenged evidence clearly contravened the

reliability protocol established in his own treatise. James testified that he was able

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to reach his ultimate conclusions concerning the stains on the underside of Tom’s

boxer shorts and the bottom of Molly’s pajama pants, despite the State’s failure to

submit those stains for even the most basic testing for the presence of blood

(presumptive testing). James testified that he reached his conclusions based on the

“physical characteristics” of the stains; he determined that their “location, size, shape,

and distribution” were “very characteristic of blood spatter[.]” But again, James

acknowledged that he could not testify to a scientific certainty that these stains were,

indeed, blood.

James also testified that in conducting an analysis of bloodstained clothing, it

is the “best practice” for an analyst to view a photograph of the person wearing the

blood-spattered clothes. However, during cross-examination, James conceded that

contrary to the best practice set forth in his treatise, he never viewed a photograph

of Tom “wearing just the boxer shorts.” In fact, “the only photographs that [he]

received of [Tom] with his clothing was a different pair of shorts that he was wearing.

Apparently the boxer shorts were beneath that. These shorts were given to him to

wear.” As for Molly, James testified that the State provided him with just one

photograph of her wearing the pajama pants. James agreed, however, that it was not

readily apparent from that photograph how the pants actually fit Molly on the night

of the incident. In the photograph, the pajama pants seem “longer than how pants

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would typically fit a person[,]” and “[t]he rear portion . . . appears to be dragging on

the ground or between her leg and flip flop[.]”

Notwithstanding James’s expertise in bloodstain pattern analysis,

noncompliance with the reliability standards and protocol prescribed in one’s own

treatise is inherently suspect, particularly when the treatise propounds that “proper

scientific approach and legal requirements dictate that such an identification be

established to a scientific certainty before it can be presented in court.” Cf. McGrady,

368 N.C. at 891, 787 S.E.2d at 10 (noting that “[t]he federal courts have articulated

additional reliability factors that may be helpful in certain cases, including . . .

[w]hether the expert has unjustifiably extrapolated from an accepted premise to an

unfounded conclusion”).

The State argues, and James similarly testified during voir dire, that testing

the stains on the underside of Tom’s boxer shorts was unnecessary to James’s

conclusions because the appropriate testing was performed on certain other stains

appearing on the front side of the boxer shorts. However, these assertions are

inconsistent with James’s other testimony during voir dire that the spatters on the

underside of Tom’s boxer shorts “have to be” the result of a separate blow “because

on the inside of the hem – it’s not a soak-through from the outside so they would have

to be coming up from down below.”

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Moreover, Defendants have never challenged the trial court’s admission of

James’s testimony regarding those stains that received full presumptive,

confirmatory, and DNA testing before James rendered his analysis. Without such

testing, it seems nearly impossible to escape questions of how the testimony could be

“based upon sufficient facts or data,” N.C. Gen. Stat. § 8C-1, Rule 702(a)(1), and

whether “[t]he witness has applied the principles and methods reliably to the facts of

the case,” id. § 8C-1, Rule 702(a)(3). See State v. Babich, 252 N.C. App. 165, 168, 797

S.E.2d 359, 362 (2017) (“[E]ven if expert scientific testimony might be reliable in the

abstract . . . the trial court must assess whether that reasoning or methodology

properly can be applied to the facts in issue.” (citation and internal quotation marks

omitted)).

In the present case, the State failed to enable James to testify in any reliable

manner concerning his analysis of the blood spatter. James readily admitted that

the underside of Tom’s boxer shorts had not received presumptive testing for the

presence of blood, proper protocol per James’s treatise. He also conceded that the

State never informed him that these stains had not been tested; indeed, he did not

learn this information until the day before he testified.

Nevertheless, James testified that he concluded:

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

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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.

(Emphases added).

This unsupported conclusion is more emphatic than even that which James

provided regarding the tested bloodstains on the front of Tom’s boxer shorts:

[M]y conclusions are that the spatters on the front of these

boxer shorts were confirmed as impact spatters. . . . [T]he

stains were embedded within the weave of the fabric, which

is pretty much the definition of impact spatter on clothing.

And this had me – my conclusions then are these impact

spatters are consistent with the wearer of these boxer

shorts in proximity to the victim Jason Corbett when blows

were struck to his head. The head being the source of the

blood in this particular case.

Although James referenced other stains on Defendants’ clothing and concluded

that they were consistent with the wearer being in Jason’s general proximity at the

time of impact, the untested stains on the underside of Tom’s boxer shorts and Molly’s

pajama pants were the only stains that allowed James to specifically conclude that

Jason’s head was near or on the floor at the time of impact. Given how critical these

particular stains were to supporting James’s ultimate conclusions, it is reasonable to

expect the State to ensure that this evidence received all of the necessary and

recommended testing before expert testimony regarding the source and content of the

stains could be admitted at trial.

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To be sure, it would certainly be excessive and unreasonable to require that

the State test every trace of forensic evidence discovered at a crime scene in order for

expert testimony to pass muster under Rule 702. As James explained during voir

dire, “DNA laboratories often . . . only allow maybe five or six samples to be

submitted” because of the burden that testing additional samples would have on

laboratories. In this case, however, the central value of James’s testimony—that

which is most probative of the State’s theory of the case, and consequently, the most

prejudicial to Defendants’ cases—specifically relates to the untested stains on the

underside of Tom’s boxer shorts and the bottom of Molly’s pajama pants, which James

opined tend to show impacts to Jason’s head while it was near the floor. Moreover,

the State had ample opportunity to ensure that these stains were among those

submitted for testing for the presence and source of the purported blood, but failed to

do so.

At trial, Ivory testified that he was responsible for testing certain evidence at

the request of the Davidson County Sheriff’s Office. Ivory explained that he routinely

tests materials in accordance with a “submission form,” in which the submitting

agency “detail[s] specifics of the case as well as any items to be submitted for testing

and the type of testing that is requested[.]” According to Ivory, “In this particular

case certain areas were asked to be tested.” When asked whether anyone requested

that he test the stains underneath the hem of Tom’s boxer shorts or the bottom of

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Molly’s pajama pants, Ivory responded that no one requested that those areas be

tested. James, however, testified that he had previously suggested that the State test

“at least some of the stains that [he] had marked. . . . They did some but not all.”

By failing to ensure that suspected blood stains are appropriately tested for

the presence of human blood, the State knowingly risked depriving its expert witness

of the ability to conduct a blood spatter analysis in accordance with established and

reliable principles and methods. This risk is exacerbated in cases where, as here, the

expert testimony regarding those specific stains is both a crucial element of the

State’s case, and highly prejudicial to Defendants.

Here, James simply was not provided with all the necessary information to

provide reliable expert testimony that satisfied the requirements of Rule 702(a). As

Defendants asserted during voir dire, James’s inability to “state to a scientific

certainty that [it] is blood” was “not his fault[,]” but the State’s:

[I]f we don’t even have presumptive testing on a different

set of stains, on a completely different side of this pair of

underwear that’s coming from a different event, that

reaches a different conclusion, then if we don’t even have

presumptive testing on that, let alone confirmatory. I

think, according to [James’s] book, that’s not something

that’s properly before this Court, pursuant to 702-(a). I just

don’t think that it is. Again, that’s not Mr. James’[s] fault.

He was not provided that piece of information. I’m

assuming that could have been tested at some point over

the last couple of years. Again, it wasn’t – that’s not his

fault. His own words, he cannot state to a scientific

certainty that is blood. If you can’t, that’s not proper

evidence before this Court and before this jury.

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For the foregoing reasons, James’s testimony regarding the untested stains on

Tom’s boxer shorts and Molly’s pajama pants was 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. § 8C-1, Rule 702(a)(3).

Therefore, the trial court abused its discretion by admitting this testimony.

4. Prejudice

“An error is not prejudicial unless there is a reasonable possibility that, had

the error in question not been committed, a different result would have been reached

at the trial.” State v. Mason, 144 N.C. App. 20, 27, 550 S.E.2d 10, 16 (2001) (citation

and internal quotation marks omitted). “[T]he erroneous admission of evidence is

reversible if it appears reasonably possible that the jury would have reached a

different verdict without the challenged evidence.” Id. at 28, 550 S.E.2d at 16.

Ultimately, the only part of James’s testimony that could have possibly

assisted the jury in reaching its verdict is James’s erroneously admitted conclusion

that the untested stains on Tom’s boxer shorts and Molly’s pajama pants were

consistent with a strike to Jason’s head “while it was close to the floor in the

bedroom.” However, it is difficult to view this testimony as anything “more than mere

conjecture[,]” given that James’s analysis was grounded neither in actual data nor

the principles and methods outlined in his treatise and testimony to establish

reliability. See Babich, 252 N.C. App. at 172, 797 S.E.2d at 364 (“[W]here, as here,

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the expert concedes that her opinion is based entirely on a speculative assumption

about the defendant—one not based on any actual facts—that testimony does not

satisfy the Daubert ‘fit’ test because the expert’s otherwise reliable analysis is not

properly tied to the facts of the case.”).

If this is the bedrock of James’s scientific inquiry concerning the challenged

evidence, then it is unclear why he was in a better position to make this ultimate

determination than the lay members of the jury. Without viewing a photograph of

Tom wearing the boxer shorts, as James testified was the appropriate practice in his

field, James was unable to discern the position of Tom’s body relative to Jason at the

time of impact. And given the State’s failure to ensure that the stains were

appropriately tested and verified as Jason’s blood, James was no better positioned

than the jury to decide with any scientific certainty whether the relevant stains were,

in fact, blood—or its source. Mere observations of the “physical characteristics” of the

stains and their locations are not determinations that the jury is incapable of making

on its own. Cf. McGrady, 368 N.C. at 895, 787 S.E.2d at 12 (“Though [the] defendant

served in the military, he did not testify that he relied on any specialized training in

threat assessment when he evaluated the threat that [the victim] posed to his life

and the life of his son. Nor was there any evidence that he relied on anything other

than common experience and instinct when he did so. Jurors possess this experience

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and instinct as well, which is exactly why they are tasked with deciding whether a

defendant has acted in self-defense.” (emphasis added)).

Lastly, it is important to note that North Carolina’s 2011 amendment to Rule

702 substantially “chang[ed] the level of rigor that our courts must use to scrutinize

expert testimony before admitting it.” Id. at 892, 787 S.E.2d at 10; see also id.

(observing that our previous Howerton standard “was decidedly less rigorous than

the Daubert approach” incorporated with the 2011 adoption of the language from the

federal rule (internal quotation marks and citation omitted)). Rule 702 as amended

“necessarily strikes a balance between competing concerns since the testimony can

be both powerful and quite misleading to a jury because of the difficulty in evaluating

it.” Id. (citation and internal quotation marks omitted).

In this case, James’s testimony had the powerful effect of bolstering the State’s

claim that Jason was struck after and while he was down and defenseless. However,

given that James’s testimony failed to assist the jury in determining whether this

was, in fact, the case, the testimony could only serve to unduly influence the jury to

reach a conclusion that it was fully capable of reaching on its own. Given this undue

influence, as explained in Section VI below, “it appears reasonably possible that the

jury would have reached a different verdict without the challenged evidence.” Mason,

144 N.C. App. at 28, 550 S.E.2d at 16.

C. Tom’s Stricken Testimony

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Defendants next argue that the trial court erred in striking Tom’s testimony

that he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The challenged exchange

occurred on direct examination, during Tom’s account of the fatal altercation with

Jason:

[DEFENSE COUNSEL:] And what happened after that?

[TOM:] And that’s – you know, if I can get any more afraid,

that was it. I can’t see him. It’s dark in the bedroom. I’m

thinking the next thing is going to be a bat in the back of

the head. I’m on the ground. I hear Molly scream “Don’t

hurt my dad.”

[THE STATE:] Objection, move to strike.

THE COURT: That’s sustained. Don’t consider that,

ladies and gentlemen.

As an initial matter, we note that although the State did not “stat[e] the

specific grounds” for its objection to Tom’s testimony, the parties nevertheless seem

to agree that the basis for the State’s objection—hearsay—was “apparent from the

context.” N.C.R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review,

a party must have presented to the trial court a timely request, objection, or motion,

stating the specific grounds for the ruling the party desired the court to make if the

specific grounds were not apparent from the context.”).

The 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. The prohibition against the admission of hearsay “does not

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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 but merely to

show that the statement was, in fact, made.” State v. Holder, 331 N.C. 462, 484, 418

S.E.2d 197, 209 (1992) (citation omitted). Thus, when an out-of-court “statement is

offered for a purpose other than proving the truth of the matter asserted, it is not

hearsay” at all. Id.

“The probative value of a nonhearsay statement does not depend, in whole or

in part, upon the competency and credibility of any person other than the witness.”

Valentine, 357 N.C. at 524, 591 S.E.2d at 856 (citations and internal quotation marks

omitted). “Further, a nonhearsay statement does not put the truth or falsity of the

statement at issue.” Id.; see also id. at 521, 524, 591 S.E.2d at 854, 856 (explaining

that the statement “You know where we are from and if somebody pulls a knife or a

gun out on you, you are supposed to get smoked” was offered not for its truth—“that

this was in fact the custom in the area where [the] defendant and [his brother] were

raised”—but instead “to show that [the] defendant intended to shoot the victim”).

Here, Tom’s testimony was not offered to prove the truth of Molly’s

statement—i.e., that Jason was, in fact, attempting to “hurt [her] dad.” Nor did the

relevance of this statement depend upon its truth. See State v. Alston, 131 N.C. App.

514, 517, 508 S.E.2d 315, 317 (1998) (rejecting the defendant’s hearsay challenge to

the admission of his child’s statement “Daddy’s got a gun,” where the evidence was

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admitted solely for its effect on the officer’s state of mind and to “explain his

subsequent conduct”), superseded by statute in part on other grounds, as stated in

State v. Gaither, 161 N.C. App. 96, 103, 587 S.E.2d 505, 510 (2003), disc. review

denied, 358 N.C. 157, 593 S.E.2d 83 (2004).

Molly’s statement was offered and admissible for the non-hearsay purpose of

illustrating Tom’s then-existing state of mind—a particularly relevant issue, given

Defendants’ claims of self-defense and defense of another. See State v. Faucette, 326

N.C. 676, 683, 392 S.E.2d 71, 74 (1990) (concluding that the victim’s statements

regarding the defendant’s threats were admissible under Rule 803(3) because they

revealed the victim’s “then-existing fear of [the] defendant” and explained “why she

did not want [him] visiting her home,” which was relevant to show that the defendant

“knew he was entering the . . . home without consent,” and “to rebut [the] defendant’s

self-defense inferences that he did not start shooting until he saw her reach for her

gun” (quotation marks omitted)); see also N.C. Gen. Stat. § 8C-1, Rule 803(3)

(excepting from the rule against hearsay a “statement of the declarant’s then existing

state of mind, emotion, sensation, or physical condition”).

The State, however, contends that “[t]he alleged statement, while self-serving,

was not relevant. . . . Immediately prior to his stricken testimony of what [Molly]

allegedly said, [Tom] testified that Jason had just shoved him across the bed. The

alleged statement of [Molly] added nothing to [Tom]’s state of mind.” Our dissenting

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colleague echoes this sentiment, concluding that “[e]ven assuming, arguendo, that

the trial court erred by sustaining the State’s objection,” Defendants are unable to

show prejudice, because “Tom had already testified about circumstances illustrating

the reasonableness of his fear and apprehension, and Molly’s statement – made after

the altercation had been well underway – was of mild, if any, additional value.”

Dissent at 49. These assertions miss the point.

Despite the number and complexity of the issues presented, the outcome of this

case ultimately turns on whether Defendants’ use of deadly force was lawful under

the circumstances. Pursuant to N.C. Gen. Stat. § 14-51.3, our statute governing self-

defense and defense of others:

(a) A person is justified in using force, except deadly force,

against another when and to the extent that the person

reasonably believes that the conduct is necessary to

defend himself or herself or another against the other’s

imminent use of unlawful force. However, a person is

justified in the use of deadly force and does not have a

duty to retreat in any place he or she has the lawful right

to be if . . . the following applies:

(1) He or she reasonably believes that such force is

necessary to prevent imminent death or great bodily

harm to himself or herself or another.

....

(b) A person who uses force as permitted by this section is

justified in using such force and is immune from civil or

criminal liability for the use of such force . . . .

N.C. Gen. Stat. § 14-51.3 (emphases added).

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Each of the central issues of this appeal ultimately concerns whether the trial

court properly admitted or “excluded evidence that was relevant to [Defendants’]

belief that [their] li[ves] w[ere] threatened in relation to [their] plea[s] of self-defense”

and defense of others. State v. Webster, 324 N.C. 385, 389, 378 S.E.2d 748, 751 (1989).

“In determining whether there was any evidence of self-defense presented, the

evidence must be interpreted in the light most favorable to [the] defendant.” Id. at

391, 378 S.E.2d at 752.

It is the jury, not the trial court, which must determine the reasonableness of

the defendant’s belief under the circumstances, “unless there is no evidence from

which a jury could conclude [the] defendant’s belief is reasonable.” Id. at 393, 378

S.E.2d at 753; cf. State v. Harvey, 372 N.C. 304, 309, 828 S.E.2d 481, 484 (2019)

(“Despite his extensive testimony recounting the entire transaction of events from his

own perspective, [the] defendant never represented that [the victim’s] actions in the

moments preceding the killing had placed [the] defendant in fear of death or great

bodily harm such that [the] defendant reasonably believed that it was necessary to

fatally stab [the victim] in order to protect himself.”). “A jury should, as far as

possible, be placed in [the] defendant’s situation and possess the same knowledge of

danger and the same necessity for action, in order to decide if [the] defendant acted

under reasonable apprehension of danger to his person or his life.” Webster, 324 N.C.

at 392, 378 S.E.2d at 753.

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Here, when viewed in the light most favorable to Defendants, “[t]he excluded

testimony went to the heart of [Tom’s] self-defense claim[,]” as well as his claim of

defense of Molly. Id. at 393, 378 S.E.2d at 753. In order to fully appreciate the extent

to which “sustaining the objection . . . prevented [Tom] from completing his side of

the story[,]” id., it is necessary to review the challenged testimony in full context:

[DEFENSE COUNSEL:] What happened after you came

down the hallway?

[TOM:] Okay. Then we come back down the hallway and

we emerged from the hallway. We are back in the bedroom

and so I get what I think is a chance to hit him, as I have

before, in the back of the head, only this time he’s ready for

me. And he puts up his left hand and catches the bat

perfectly right in his palm as I swing the bat at the back of

his head. But in the process, Molly goes free. She escapes

to his right or he let’s [sic] her go. Anyway, the two of them

separate. But now he’s got the bat. And I’m still holding

the bat. But he cocks his arm like this (demonstrated).

Jason is right-handed, that’s my experience. This is with

his left hand. He cocks his hand and he punches out

(demonstrating) and shoves me across the entire bed, the

width of the bed, and I’m on the floor with my back to him

and face down on the carpet. And –

Q. And what happened after that?

A. And that’s – you know, if I can get any more afraid, that

was it. I can’t see him. It’s dark in the bedroom. I’m

thinking the next thing is going to be a bat in the back of

the head. I’m on the ground. I hear Molly scream “Don’t

hurt my dad.”

[THE STATE:] Objection, move to strike.

THE COURT: That’s sustained. Don’t consider that,

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ladies and gentlemen.

[DEFENSE COUNSEL:] All right.

[TOM:] And I’m scrambling. I remember thinking

irrationally now that I lost my glasses in this exchange and

that I need to find my glasses. You know, I’m shook up,

and then I realize how stupid that is. I’m better off without

my glasses. Because if you are in a fight, you don’t want

your glasses jammed into your eyes. But I don’t know how

long it took me. It was a shock to get thrown across the

bedroom. But I get up. And I turn over and I get up and

now I see Jason essentially where he was, which is

essentially where we started, inside the door to the

bedroom, just a step or two toward that door from the

hallway to the right of the bed as you enter the bedroom,

and he’s got the bat, and Molly is by the nightstand in the,

you know – it’s between the wall on that side and the bed,

so she’s over there. She’s trapped. She can’t get past him.

[THE STATE:] Objection to what Molly may or may

not be able to do.

[DEFENSE COUNSEL:] His observations.

THE COURT: That’s overruled. He may continue.

[TOM:] And 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 in a good – looks like he’s 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 there’s

– well, I decided to rush him and try to get ahold of the bat.

Viewed in full context, the significance of Tom’s testimony regarding Molly’s

statement “Don’t hurt my dad” is manifest. Not only was this statement directly

“relevant to [Tom]’s belief that his life was threatened in relation to his plea of self-

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defense[,]” Webster, 324 N.C. at 389, 378 S.E.2d at 751, but for reasons more fully

explained below, the exclusion of this testimony also bore upon the question of Tom’s

ultimate role in the affray—i.e., whether the evidence supported a jury instruction on

the aggressor doctrine, see State v. Holloman, 369 N.C. 615, 628, 799 S.E.2d 824, 833

(2017) (holding that the provisions of N.C. Gen. Stat. § 14-51.4(2)(a) “allowing an

aggressor to regain the right to use defensive force under certain circumstances do

not apply in situations in which the aggressor initially uses deadly force against the

person provoked”).

“In light of the circumstances of this case and the trial court’s instructions on

self-defense,” Webster, 324 N.C. at 393, 378 S.E.2d at 753, as explained in Section VI,

we conclude that the trial court committed prejudicial error in striking Tom’s

testimony that he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” Cf. id. at 392-94,

378 S.E.2d at 753-54 (awarding the defendant a new trial where the trial court

“erroneously sustained the State’s objection to the question about whether [the]

defendant felt that his life was threatened because that evidence was highly relevant

to the crucial question of [the] defendant’s statement of mind at the time of the

shooting, his knowledge and belief of danger, and his knowledge and belief of the

necessity for action in relation to his plea of self-defense”).

V. Instructional Error

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We next address the trial court’s decision to instruct the jury on the aggressor

doctrine with respect to Tom’s claim that he was, at all times, acting in self-defense

and in defense of his daughter, Molly. Tom argues that the trial court committed

reversible error by instructing the jury that he would not be entitled to the full benefit

of self-defense or defense of a family member if the jury found that he were the initial

aggressor in the altercation with Jason. We agree.

A. Standard of Review

“The jury charge is one of the most critical parts of a criminal trial.” State v.

Lee, 370 N.C. 671, 674, 811 S.E.2d 563, 565 (2018) (citation omitted). The trial court’s

duty is momentous: to deliver a clear instruction on the law arising from all of the

evidence presented, and to do so “in such manner as to assist the jury in

understanding the case and in reaching a correct verdict.” Holloman, 369 N.C. at

625, 799 S.E.2d at 831 (citation omitted). We review de novo parties’ challenges to

the trial court’s decisions regarding jury instructions. State v. Osorio, 196 N.C. App.

458, 466, 675 S.E.2d 144, 149 (2009).

“The jury must not only consider the case in accordance with the State’s theory

but also in accordance with [the] defendant’s explanation.” State v. Guss, 254 N.C.

349, 351, 118 S.E.2d 906, 907 (1961) (per curiam). Consequently, “[w]here there is

evidence that [the] defendant acted in self-defense, the court must charge on this

aspect even though there is contradictory evidence by the State or discrepancies in

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[the] defendant’s evidence.” State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818

(1974); see also Lee, 370 N.C. at 677, 811 S.E.2d at 568 (Martin, C.J., concurring)

(asserting that the principle articulated in Dooley “should apply equally to defense of

another” where the evidence supports such an instruction).

In considering whether to deliver a jury instruction on self-defense, the trial

court generally must view the evidence in the light most favorable to the defendant.

State v. Mumma, 372 N.C. 226, 239 n.2, 827 S.E.2d 288, 297 n.2 (2019) (citing

Holloman, 369 N.C. at 625, 799 S.E.2d at 831). However,

this principle does not apply to the determination of

whether the trial court erred by addressing the “aggressor”

doctrine in the course of instructing the jury concerning the

law of self-defense. In determining whether a self-defense

instruction should discuss the “aggressor” doctrine, the

relevant issue is simply whether the record contains

evidence from which the jury could infer that the defendant

was acting as an “aggressor” at the time that he or she

allegedly acted in self-defense.

Id. (citing State v. Cannon, 341 N.C. 79, 82-83, 459 S.E.2d 238, 241 (1995)).

“When there is no evidence that a defendant was the initial aggressor, it is

reversible error for the trial court to instruct the jury on the aggressor doctrine of

self-defense.” State v. Juarez, 369 N.C. 351, 358, 794 S.E.2d 293, 300 (2016). Where

the trial court delivers an aggressor instruction “without supporting evidence, a new

trial is required

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