Defendant makes the following arguments on appeal: (1) the trial court erred in admitting the children's hearsay statements to their foster parents and to medical personnel; (2) the trial court erred or committed plain error in admitting certain statements made by expert witnesses Dr. Conroy and Dr. Russo; (3) the trial court erred or committed plain error by not requiring the jury to be unanimous as to the actus reus for each charge; and (4) the trial court erred in failing to require the State to provide certain documents to the defendant prior to trial. First we address defendant's argument that the trial court erred in admitting the out-of-court statements the children made to their foster parents and pediatricians. Defendant argues the statements made to the children's foster parents were testimonial; however, defendant concedes that this Court conclusively determined in the case against the children's mother, State v. Kimberly Brigman, 171 N.C. App. 305, 310-11, 615 S.E.2d 21, 24, disc. review denied, 360 N.C. 67, 621 S.E.2d 881 (2005), that the out-of-court statements made by the children to their foster parents were not testimonial and therefore did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). This argument is overruled.

First we address defendant's argument that the trial court erred in admitting the out-of-court statements the children made to their foster parents and pediatricians. Defendant argues the statements made to the children's foster parents were testimonial; however, defendant concedes that this Court conclusively determined in the case against the children's mother, State v. Kimberly Brigman, 171 N.C. App. 305, 310-11, 615 S.E.2d 21, 24, disc. review denied, 360 N.C. 67, 621 S.E.2d 881 (2005), that the out-of-court statements made by the children to their foster parents were not testimonial and therefore did not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). This argument is overruled.

during the legal process'"), quoting Bobadilla, 709 N.W2d at 255-56; Vigil, 127 P.3d at 925 ("an assessment of whether or not a reasonable person in the position of the declarant would believe a statement would be available for use at a later trial involves an analysis of the expectations of a reasonable person in the position of the declarant. Expectations derive from circumstances, and, among other circumstances, a person's age is a pertinent characteristic for analysis"); In re D.L., 2005Ohio-2320, ¶ 20 (a child's statements are testimonial under Crawford if "`the circumstances surrounding the contested statements led the three-year-old to reasonably believe her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation' [citation]"); Lagunas, 187 S.W.3d at 519 (holding that a child's age and emotional state are factors to be considered in determining whether her statements were testimonial); State v. Brigman, 171 N.C. App. 305, 312-13, 615 S.E.2d 21, 25-26 (2005) (taking child's age into account in determining that her statements were nontestimonial). In addition to the above authority, Professor Friedman has written directly on the issue of child witnesses:

October 6, 2005. Case Below: 171 N.C. App. 305. Def's PDR Under N.C.G.S. § 7A-31 (COA04-563).

When determining if prior testimony is admissible as an exception to the Confrontation Clause, we look to see "(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant." State v. Clark , 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (2004) (citation omitted); seeState v. Brigman , 171 N.C. App. 305, 309, 615 S.E.2d 21, 23 (2005). ¶ 17 Defendant does not dispute Meeks's prior testimony "was testimonial in nature" or that the "the declarant was unavailable."

When they questioned M.B., Gray and Shawn were motivated primarily to find out what happened so that they could protect M.B.'s safety. This activity is sufficiently attenuated from law enforcement conduct to be nontestimonial under Crawford"); Commonwealth v. Gonsalves, 445 Mass. 1, 17-18, 833 N.E.2d 549, 561-62 (2005); State v. Brigman, 171 N.C. App. 305, 311-12, 615 S.E.2d 21, 24-25 (2005) (statement made to foster mother held nontestimonial); State v. Wilkinson, 178 Vt. 174, 879 A.2d 445 (2005); State v. Walker, 129 Wash. App. 258, 273, 118 P.3d 935, 942 (2005) ("The record indicates that the exchange between Bobbi and CM. was that of a conversation between a concerned parent and an upset child, nothing more"); Herrera-Vega v. State, 888 So. 2d 66, 69 (Fla. App. 2004) ("Whatever the United States Supreme Court eventually decides 'testimonial' evidence consists of, it does not appear to include the spontaneous statements made by D.H. to her mother while being dressed, nor does it include D.H.'s statements to her father"); State v. Bobadilla, 690 N.W.2d 345, 350 (Minn. App. 2004) ("T.B.'s statement to his mother was not testimonial. T.B.'s mother questioned T.B. about the redness around his anus out of concern for his health, not because she expected to develop a case against Bobadilla"), rev'd on other grounds, 709 N.W.2d 243 (Minn. 2006); State v. Blackstock, 165 N.C.

Other courts have reached the same result in cases involving child testimony. See State v. Krasky, 696 N.W.2d 816 (Minn.Ct.App. 2005) ( review granted Aug. 16, 2005) (Although the examination was arranged by a detective and a child-protection worker, there was no indication that the child thought her statements might be used in a later trial or that the circumstances would lead a reasonable child of her age to have that expectation.); State v. Brigman, 615 S.E.2d 21, 25 (N.C.Ct.App. 2005) (The court distinguished Vigil and concluded that "[The five-year-old J.B.] was less likely to understand the potential for his statements to be used prosecutorially than the child in Vigil. Also unlike the child in Vigil, J.B. did not make any statements indicating that he understood the consequences of his statements or how they might be used to put defendant in jail."); see also People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687 (2004) (The child's response to the executive director of a children's assessment center, who was not a government employee, was not testimonial.).

"In analyzing a Crawford claim, we must determine: '(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant.'" State v. Brigman, 171 N.C. App. 305, 309, 615 S.E.2d 21, 23 (quoting State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217, disc. review denied, 358 N.C. 734, 601 S.E.2d 866 (2004)), disc. review denied, 360 N.C. 67, 621 S.E.2d 881 (2005). The North Carolina Supreme Court has held that "[a]ctual witness testimony from a jury trial is the classic example of statements that would be considered 'testimonial' and thus almost always certainly subject to the limitations mandated by Crawford."

The State's argument draws some support from decisions rendered after Crawford but before Davis, where the courts extracted from Crawford a test inquiring whether an objectively reasonable person in the declarant's position — taking into account the declarant's age — would believe that the statement could be used later at a trial. See, e.g., State v. Scacchetti, 690 N.W.2d 393, 396 (Minn.Ct.App. 2005) (concluding that Crawford would require exclusion of statements only if surrounding circumstances would have led a three-year-old declarant to believe her disclosures would be available for use at trial); State v. Brigman, 615 S.E.2d 21, 25-26 (N.C.Ct.App. 2005) (holding that five-year-old declarant was unlikely to understand the potential for his statements to be used prosecutorially). We conclude, however, that while these courts' analyses may have represented a reasonable interpretation of Crawford, they have been discredited by Davis, which focuses not at all on the expectations of the declarant but on the content of the statement, the circumstances under which it was made, and the interrogator's purpose in asking questions.

It is "highly implausible" that a three or four year old would have reason to know, nor even understand, that her statements might be used in a later trial. See State v. Brigman, __ N.C. App. __, __, 615 S.E.2d 21, 25-26 (2005). In light of the fact that the young victim in the instant case was speaking with therapists, not police officers, and that the record is devoid of any evidence that she had the slightest inkling that defendant faced criminal charges, or even that she understood what criminal charges were, we hold that her statements to Meadows and Roberts were not testimonial for Confrontation Clause purposes.