Opinion
No. 06-864.
Filed 5 June 2007.
Forsyth County No. 02CRS62819.
Appeal by Defendant from judgment entered 20 January 2006 by Judge Edwin G. Wilson, Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 8 May 2007.
Attorney General Roy Cooper, by Linda Kimbell, Assistant Attorney General, for the State. Lynne Rupp, for Defendant-appellant.
Defendant Craig Anthony Coad appeals from his conviction on the charge of taking indecent liberties with a child. He contends the trial court erred by failing to admit under N.C.G.S. 8C-1, Rule 803(6), the report of a police officer who was unavailable to testify at his trial. Because we hold the report was not admissible under N.C.G.S. 8C-1, Rule 803(6), we find no error in Defendant's trial.
The relevant facts show that on 15 June 2002, Defendant was driving his van when he noticed Kia Cobb and her friend Brittany Jones walking. Defendant stopped and offered the females a ride, which they accepted. Defendant drove Cobb and Jones to a teen club where Jones got out of the van but Cobb remained with Defendant. Defendant and Cobb gave different accounts of what transpired after he dropped Jones off at the club. However, both agree that Defendant allowed Cobb to stay at his home with him and his girlfriend until Cobb returned to her home on 17 June 2002. When she returned home, she informed her mother that she was raped by Defendant. The police were called, and Officer J.A. Kuhn responded and made a report, which is the subject of this appeal. At the time of trial, Officer Kuhn, a military reservist, was deployed to Iraq and was unavailable to testify.
From his conviction on the charge of taking indecent liberties with a child and sentence of a minimum term of 21 months and a maximum term of 26 months, Defendant appeals. He contends that the trial court erred by failing to admit Officer Kuhn's report under rules 803(6), 803(8)(c), and 803(24) of the North Carolina Rules of Evidence, in violation of a fair trial.
At the outset, we note Defendant did not present an argument to the trial court that the police report was admissible under Rule 803(24). Therefore, Defendant cannot argue this assignment for the first time on appeal. State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002). Moreover, Defendant failed to present any argument or authority to support his contention that the police report was admissible under Rule 803(8), therefore this portion of the assignment of error is abandoned. N.C. R. App. P. 28(b)(6)(2006) (providing that "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned."). Accordingly, we address only Defendant's contention that the trial court erred by failing to admit Officer Kuhn's police report under Rule 803(6).
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." N.C. Gen. Stat. § 8C-1, Rule 803(6)(2005).
Unlike Rule 803(8) (the public record exception), Rule 803(6) (the business record exception) does not specifically exclude from hearsay the observations "by police officers and other law-enforcement personnel." N.C. Gen. Stat. § 8C-1, Rule 803(8) (2005). Therefore, Defendant argues that N.C.G.S. 8C-1, Rule 803(6) applies to this case. But, Defendant provided no authority where this Court has applied N.C.G.S. 8C-1, Rule 803(6) in such a fashion. Cf. State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987) (holding that federal firearms forms are admissible under G.S. 8C-1, Rule 803(6)); Nunnery v. Baucom, 135 N.C. App. 556, 521 S.E.2d 479 (1999) (holding that accident reports are admissible in a civil suit under G.S. 8C-1, Rule 803(6)); State v. Woods, 126 N.C. App. 581, 486 S.E.2d 255 (1997) (holding that medical records are admissible under G.S. 8C-1, Rule 803(6)); State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986) (holding that blood tests are admissible under N.C.G.S. 8C-1, Rule 803(6)).
" The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law-enforcement personnel." N.C. Gen. Stat. § 8C-1, Rule 803(8)(2005).
Additionally, Rule 803(8) explicitly deals with public records and the exclusion of police reports in a criminal case. A general principal of statutory construction states if "two statutory provisions conflict, one of which is specific or particular and the other general, the more specific statute controls in resolving any apparent conflict." Furr v. Noland, 103 N.C. App. 279, 281, 404 S.E.2d 885, 886 (1991) (internal quotations and citations omitted).
Moreover, assuming arguendo the report was admissible, Defendant was found guilty of indecent liberties with a child, and not of statutory rape. The evidence at trial includes Defendant's admission that he touched Cobb's breast, and this overwhelmingly supports the jury's finding of guilty on the charge of taking indecent liberties with a child. Accordingly, any error in failing to admit the police report would have been harmless.
" (a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either: (1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or (2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years." N.C. Gen. Stat. § 14-202.1 (2002).
No error.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).