Judge GREENE concurring.

JOHNSON, Judge.

On 17 September 1993, two juvenile petitions were filed pursuant to North Carolina General Statutes § 7A-517(12) (Cum. Supp. 1994) alleging that defendant Johnny Stradford committed one count of first degree rape and one count of first degree sex offense against A., a six-year-old minor child, and one count of first degree rape and one count of first degree sex offense against B., a seven-year-old minor child.

The evidence at the adjudicatory hearing showed the following: A. testified that defendant, who was her babysitter, took her into a bathroom, made her lie down on the floor, and put "his thing that he pees with" in her. B. testified that defendant took her to a bathroom, pulled down her skirt, and put his "private" in hers. B. also observed defendant doing something to A. under the bed covers.

On approximately 3 August 1993, the girls told their stepmother, Sonya Stansbury, what defendant had done to them. B. was hesitant to talk about what had happened, and cried and became withdrawn as she told her stepmother about the incident. The day after the girls told their stepmother about the abuse, Ms. Stansbury contacted Dr. Lucy Downey, a pediatrician at Haywood Pediatrics.

After being qualified as an expert witness, Dr. Downey testified that she performed vaginal and rectal examinations on both girls. Dr. Downey found B.'s vaginal examination to be abnormal. B.'s anal opening was also irregular. Based on her examination, Dr. Downey was of the opinion that B.'s vagina and anus had been penetrated. Although sexual abuse was not confirmed, the findings were consistent with sexual contact, including penetration. The findings were also consistent with the history received from Ms. Stansbury. A.'s vaginal exam was also abnormal and indicated the possibility of sexual contact. Dr. Downey was unable to perform a thorough rectal examination of A. Dr. Downey was unable to form an opinion whether penetration of A.'s vagina and anus had occurred.

A Mecklenburg County Child Protective Services worker, Joy Burris, testified that on 9 June 1993, she responded to a call to investigate unsupervised children at the Cricket Inn on Nations Ford Road. Upon arriving at the Cricket Inn, Ms. Burris discovered five children, including A. and B., in a room attended by fifteen year old Itreon Stradford. That afternoon, Ms. Burris spoke to A. and B. who told her that their babysitters were Itreon and defendant, who had been caring for them for a couple of days. The girls also told Ms. Burris that Itreon and defendant were living in the hotel room.

Officer Donna Browning, a member of the Youth Bureau Investigations unit of the Charlotte Police Department, testified that she became involved in the case when the Department of Social Services made a referral. Officer Browning assisted Ms. Burris in a criminal investigation of the child neglect of A., B., and another child. As part of the investigation, Officer Browning interviewed defendant; Officer Browning testified that she asked defendant if he was playing around with A. and B., "and he replied the boys were playing with [A. and B.] by pulling down their panties before." He also indicated that he had babysat the children for "about a month." Defendant denied touching either girl's private parts, and denied putting his penis into either girl's private parts. Defendant also denied that anyone else had touched the girls.

Defendant was adjudicated delinquent on two counts of first degree rape. Two counts of first degree sexual assault were dismissed. Defendant has appealed to our Court.

Defendant first argues on appeal that the trial court had no authority to authorize a procedure where the complainant testified out of the presence of defendant. Prior to the hearing, the State had moved that the trial court permit A. and B. to testify via a closed circuit television due to the girls' probable inability to communicate if forced to testify in defendant's presence. Following an evidentiary hearing on the motion, the trial court granted the State's motion. Defendant argues that there is no express or implied authority for the trial court to employ the procedure used in the instant case, namely, remote testimony. Citing North Carolina General Statutes § 7A-629 (1989) (juvenile adjudications to be conducted in open court) and North Carolina General Statutes § 15-166 (1983) (defendant may not be excluded from closed courtroom), defendant argues that "[t]he proper place for a debate on the advantages, disadvantages, and [guidelines] for remote testimony is in the legislative chamber. As a matter of state constitutional law, and public policy, the trial court exceeded its authority in making the determination here that such a procedure be followed in this case." Defendant also makes an argument that the remote testimony procedure denied defendant his state and federal rights to confront the witness against him.

The State argues that pursuant to North Carolina General Statutes § 8C-1, Rule 611(a) (1992), the court is authorized to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth. . . ." Noting that our courts have systematically recognized that special exceptions to general courtroom procedures are often required to more effectively question child witnesses in sexual abuse cases, e.g., State v. Stanley, 310 N.C. 353, 312 S.E.2d 482 (1984) and State v. Brice, 320 N.C. 119, 357 S.E.2d 353 (1987), the State argues that the trial court had absolute authority to authorize the remote testimony of the child witnesses. The State notes that other states have statutory law allowing this procedure. The State also argues that examination of the child witnesses out of defendant's physical presence did not abridge defendant's federal or state constitutional right to confront the witnesses against him. The State submits that Maryland v. Craig, 497 U.S. 836, 111 L.Ed.2d 666 (1990) addressed this precise issue.

In Maryland v. Craig, the Supreme Court addressed the constitutionality of a Maryland statute which allowed a child victim in a sexual abuse case to testify outside of the defendant's presence by a one-way closed circuit television. The Court reasoned that this was proper:

[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.

Craig, 497 U.S. at 857, 111 L.Ed.2d at 686. The Craig Court went on to state that before this type of testimony will be allowed, the following must be met:

The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. . . . Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than "mere nervousness or excitement or some reluctance to testify[.]" (Citations omitted.)

Id. at 855-56, 111 L.Ed.2d at 685. Defendant, while recognizing Craig v. Maryland, asserts that "[o]ur state constitutional right to confront one's accusers is broader than the corresponding right under the Sixth Amendment to the U.S. Constitution." Defendant cites State v. Moss, 332 N.C. 65, 73-74, 418 S.E.2d 213, 218 (1992) ( quoting State v. Blackwelder, 61 N.C. 38, 40 (1866) (our confrontation right is a right which "ought to be kept forever sacred and inviolate") and State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969) (our confrontation clause requires "that the witness must be present before the triers of fact and the accused so that they are `put face to face'") in making this argument.

Although this particular issue of remote testimony has not been previously addressed in our state, we find State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988) instructive. In Jones, an expert witness testified that the child victim in a sexual abuse case exhibited an intense fear of the defendant and could suffer emotional harm if forced to testify in his presence. The trial judge ordered the defendant excluded from the courtroom during the questioning of the child. The defendant was able to view the child and hear her responses by one-way closed circuit television, and the defense attorney, who was in the courtroom with the child, was allowed to cross-examine the child and confer with the defendant, who was in the judge's chambers. Our Court held on appeal that the defendant's exclusion from the courtroom did not violate his constitutional right to confront the witnesses against him. The Court reasoned that "the trial court's use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim's testimony, were sufficient to permit defendant to hear the evidence and refute it." Id. at 588, 367 S.E.2d at 142.

We believe, on the facts of the instant case, the trial court properly authorized the remote testimony of the child witnesses. We believe that "despite the absence of face-to-face confrontation . . . [the remote testimony preserved] the essence of effective communication." We note, in the instant case, that the child witnesses testified under oath, were subject to full cross-examination, and were able to be observed by the judge and defendant as they testified. As such, and on these facts, we believe the trial court properly exercised its discretion in authorizing this method of testifying, and did not deny defendant his state and federal rights to confront the witnesses against him.

Alternatively, defendant argues that the trial court's findings were insufficient under both the federal and state constitutions in that the court's finding that the children would be traumatized by defendant was without proper evidentiary support. We have reviewed the testimony presented at the adjudicatory hearing from Rita Newkirk, the girls' clinical therapist. Based on Ms. Newkirk's training and experience, and her therapy sessions with A. and B, Ms. Newkirk testified that it would be "further traumatizing" if A. and B. were subject to face-to-face confrontations with defendant. We find, after reviewing Ms. Newkirk's entire testimony, that her testimony provided adequate support for the trial court's decision to authorize the use of remote testimony.

Finally, defendant argues that the trial court erred in not disclosing to defendant material collected on the child witnesses by the Department of Social Services. The trial court conducted an in camera review of these records and found that there was nothing therein which defendant was entitled to use to defend himself. Defendant requests that our Court review these sealed documents. See State v. Phillips, 328 N.C. 1, 399 S.E.2d 293, cert. denied, 501 U.S. 1208, 115 L.Ed.2d 977 (1991). We have reviewed those sealed documents and have found no documents of material benefit to defendant. This argument is overruled.

No error.

Judge MARTIN, JOHN C. concurs.

Judge GREENE concurs with separate opinion.