# State v. Corbett/Martens > Court of Appeals of North Carolina · February 4, 2020 URL: https://www.frixlaw.com/law-library/cases/4504176 ## Case - **Court:** Court of Appeals of North Carolina - **Decided:** February 4, 2020 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4504176 ## How later opinions describe it (automated extraction) - concluding that the “[d]efendant’s decision to arm herself and leave the vehicle, while perhaps unwise, was not, in and of itself, evidence that she brought on the difficulty, ‘aggressively and willingly’ entered the fight, or intended to continue the altercation” - concluding that the victim’s statements regarding the defendant’s threats were admissible under Rule 803(3 ## Opinion text 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 STATE V. CORBETT & MARTENS Opinion of the Court 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 2 STATE V. CORBETT & MARTENS Opinion of the Court 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. 3 STATE V. CORBETT & MARTENS Opinion of the Court 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 4 STATE V. CORBETT & MARTENS Opinion of the Court 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 5 STATE V. CORBETT & MARTENS Opinion of the Court 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 6 STATE V. CORBETT & MARTENS Opinion of the Court 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. 7 STATE V. CORBETT & MARTENS Opinion of the Court 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 – 8 STATE V. CORBETT & MARTENS Opinion of the Court 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 9 STATE V. CORBETT & MARTENS Opinion of the Court 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 10 STATE V. CORBETT & MARTENS Opinion of the Court 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. 11 STATE V. CORBETT & MARTENS Opinion of the Court 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. 12 STATE V. CORBETT & MARTENS Opinion of the Court 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 13 STATE V. CORBETT & MARTENS Opinion of the Court 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 14 STATE V. CORBETT & MARTENS Opinion of the Court 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. 15 STATE V. CORBETT & MARTENS Opinion of the Court 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. 16 STATE V. CORBETT & MARTENS Opinion of the Court 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 17 STATE V. CORBETT & MARTENS Opinion of the Court 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 18 STATE V. CORBETT & MARTENS Opinion of the Court 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 19 STATE V. CORBETT & MARTENS Opinion of the Court 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 20 STATE V. CORBETT & MARTENS Opinion of the Court 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. 21 STATE V. CORBETT & MARTENS Opinion of the Court 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 22 STATE V. CORBETT & MARTENS Opinion of the Court 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 23 STATE V. CORBETT & MARTENS Opinion of the Court 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. 24 STATE V. CORBETT & MARTENS Opinion of the Court “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 25 STATE V. CORBETT & MARTENS Opinion of the Court 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. 26 STATE V. CORBETT & MARTENS Opinion of the Court 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 27 STATE V. CORBETT & MARTENS Opinion of the Court 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 28 STATE V. CORBETT & MARTENS Opinion of the Court 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 29 STATE V. CORBETT & MARTENS Opinion of the Court 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.”). 30 STATE V. CORBETT & MARTENS Opinion of the Court 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: 31 STATE V. CORBETT & MARTENS Opinion of the Court .... (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. 32 STATE V. CORBETT & MARTENS Opinion of the Court 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 33 STATE V. CORBETT & MARTENS Opinion of the Court 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 34 STATE V. CORBETT & MARTENS Opinion of the Court 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. 35 STATE V. CORBETT & MARTENS Opinion of the Court 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.” 36 STATE V. CORBETT & MARTENS Opinion of the Court 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 37 STATE V. CORBETT & MARTENS Opinion of the Court 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.” 38 STATE V. CORBETT & MARTENS Opinion of the Court 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 39 STATE V. CORBETT & MARTENS Opinion of the Court 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, 40 STATE V. CORBETT & MARTENS Opinion of the Court “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 41 STATE V. CORBETT & MARTENS Opinion of the Court 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 42 STATE V. CORBETT & MARTENS Opinion of the Court 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 43 STATE V. CORBETT & MARTENS Opinion of the Court 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 44 STATE V. CORBETT & MARTENS Opinion of the Court 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. 45 STATE V. CORBETT & MARTENS Opinion of the Court 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 46 STATE V. CORBETT & MARTENS Opinion of the Court “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). 47 STATE V. CORBETT & MARTENS Opinion of the Court 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 48 STATE V. CORBETT & MARTENS Opinion of the Court 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. 49 STATE V. CORBETT & MARTENS Opinion of the Court .... 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: 50 STATE V. CORBETT & MARTENS Opinion of the Court 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 51 STATE V. CORBETT & MARTENS Opinion of the Court 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 52 STATE V. CORBETT & MARTENS Opinion of the Court 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). 53 STATE V. CORBETT & MARTENS Opinion of the Court 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 54 STATE V. CORBETT & MARTENS Opinion of the Court 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.” 55 STATE V. CORBETT & MARTENS Opinion of the Court 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 56 STATE V. CORBETT & MARTENS Opinion of the Court 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.” 57 STATE V. CORBETT & MARTENS Opinion of the Court 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? 58 STATE V. CORBETT & MARTENS Opinion of the Court 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. 59 STATE V. CORBETT & MARTENS Opinion of the Court 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 60 STATE V. CORBETT & MARTENS Opinion of the Court 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.”). 61 STATE V. CORBETT & MARTENS Opinion of the Court 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: 62 STATE V. CORBETT & MARTENS Opinion of the Court  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.” 63 STATE V. CORBETT & MARTENS Opinion of the Court 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 64 STATE V. CORBETT & MARTENS Opinion of the Court 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 65 STATE V. CORBETT & MARTENS Opinion of the Court 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: 66 STATE V. CORBETT & MARTENS Opinion of the Court (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 67 STATE V. CORBETT & MARTENS Opinion of the Court 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. 68 STATE V. CORBETT & MARTENS Opinion of the Court 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 69 STATE V. CORBETT & MARTENS Opinion of the Court 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 70 STATE V. CORBETT & MARTENS Opinion of the Court 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.” 71 STATE V. CORBETT & MARTENS Opinion of the Court 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 72 STATE V. CORBETT & MARTENS Opinion of the Court 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. 73 STATE V. CORBETT & MARTENS Opinion of the Court 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 74 STATE V. CORBETT & MARTENS Opinion of the Court 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” [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4504176. Public record. Not legal advice.