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NO. COA12-414-2 NORTH CAROLINA COURT OF APPEALS Filed: 16 April 2013 DEBORAH J. LITTLE, Plaintiff, v. CHARLIE J. LITTLE, Defendant. Randolph County No. 11 CVD 2345

Appeal by defendant from order entered 27 October 2011 by Judge Robert M. Wilkins in Randolph County District Court.

Heard in the Court of Appeals 11 September 2012. 15 January 2013. 2013.

Opinion filed

Petition for rehearing granted 21 February

The following opinion supersedes and replaces the opinion

filed 15 January 2013. No brief filed on behalf of plaintiff-appellee. Bell and Browne, P.A., by Charles T. Browne, for defendantappellant. GEER, Judge. Defendant Charlie J. Little appeals the trial court's entry of a domestic violence protective order in favor of plaintiff Deborah J. Little. He primarily contends on appeal that the

trial court erred in allowing Ms. Little to testify that she had been diagnosed with a cervical neck strain as a result of

-2domestic violence. Because the testimony was inadmissible

hearsay and the trial court relied upon that testimony in its order, we reverse. Facts On 6 September 2011, Ms. Little filed a complaint seeking a domestic violence protective order. assaulted her on 3 September 2011 She alleged that defendant in the driveway of their The

residence in Trinity, North Carolina, injuring her neck.

trial court entered an ex parte domestic violence protective order on 6 September 2011 finding that Mr. Little had committed an act of domestic violence against Ms. Little and ordering, among other things, that Mr. Little remain at least 1,000 feet away from Ms. Little at all times. The trial court issued a

notice of hearing on the domestic violence protective order for 15 September 2011. Mr. Little filed an answer denying the

allegations of domestic violence. After multiple continuances, the trial court held a hearing on 27 October 2011. from Ms. Little, County to Ms. Mr. At the hearing, the court heard testimony Little, and Deputy Eric Wilson of who of the had 3

Randolph responded September

Sheriff's Little's During

Department, call

the

officer the

regarding the

events court

2011.

the

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-3judicial notice of the criminal file related to the 3 September 2011 events. At the close of the hearing, the trial court entered a domestic violence protective order (1) noting that the court had taken judicial notice of the criminal file in which "[d]efendant was found guilty on 10/10/11 of assault on female," (2) finding that defendant used his hand to attempt to choke Ms. Little resulting in neck strain, and (3) ordering, among other things, that defendant should have no contact with Ms. Little and remain at least 1,000 feet away from her at all times. effective through 27 October 2012. to this Court. Discussion "'[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial of law court's were findings proper in of fact and of whether its The order was

Mr. Little timely appealed

conclusions

light

such

facts.'"

Burress v. Burress, 195 N.C. App. 447, 449, 672 S.E.2d 732, 734 (2009) (quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). When there is competent

evidence to support the trial court's findings of fact, those findings are binding on appeal. 734. Id. at 449-50, 672 S.E.2d at

-4Defendant first contends on appeal that the trial court committed reversible error in admitting Ms. Little's testimony that she had been diagnosed with a cervical neck injury.

Defendant contends the statement was hearsay not subject to any exception under the North Carolina Rules of Evidence. Ms. Little testified that at some point after defendant assaulted her, she "noticed that [her] neck was stiff and [she] was having a hard time swallowing." She continued:

MRS. LITTLE: . . . so I went to the hospital in Greensboro, and they diagnosed me -[DEFENSE COUNSEL]: Well, objection. MRS. LITTLE: -- with having a cervical -THE COURT: Hang on. . . . If you're up here, you're testifying today, and somebody makes an objection like [defense counsel] just did, okay, if you'll please just stop talking until I can figure out what's going on, all right? If you are the person or the attorney that makes the objection, I'll just remind you that you need to make sure you let me know what the legal basis is for your objection and then I'll -- I'll rule. Okay, so, yes, sir, [defense counsel], what's the objection? [DEFENSE COUNSEL]: Hearsay, Your Honor. THE COURT: Overruled. Go ahead. MRS. LITTLE: Yes. I was di- --

-5THE COURT: I'm saying -- ma'am, you were saying something about the diagnosis. What was it? MRS. LITTLE: Cervical strain, and I do have a documentation from the hospital that notes that, and also they prescribed me some pain pills 'cause it -- and muscle relaxer 'cause the doctor told me that I -[DEFENSE COUNSEL]: Objection. MRS. LITTLE: -- was going to -[DEFENSE COUNSEL]: Hearsay. THE COURT: Okay. Sustained. Okay. Go ahead, ma'am. What -- okay. Okay. I don't - you've already told me what the diagnosis is. MRS. LITTLE: Yes. THE COURT: What else? "'Hearsay' is a That's okay. other All than right. one made by the

statement,

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid. 801(c). N.C.R.

Hearsay evidence is generally inadmissible unless

it falls within one of the exceptions recognized in the North Carolina Rules of Evidence or another statute. N.C.R. Evid. 802

("Hearsay is not admissible except as provided by statute or by these rules."). There is no question that the complained-of testimony was an out-of-court statement offered for the truth of the matter

-6asserted. Ms. Little was testifying to what the doctor told her

in order to prove to the court that her neck had suffered a cervical strain. The statement was, therefore, inadmissible

unless it fell within one of the recognized exceptions to the hearsay rule. Because there is no evidence that the doctor in this case was unavailable, the testimony, in order to be admissible, must fall within one of the exceptions in Rule 803 of the Rules of Evidence, which sets out the exceptions to the hearsay rule that apply regardless of the availability of the person making the statement. We have been unable to identify any specific

exception in Rule 803 that might apply.

Since the trial court

provided no explanation for why it was overruling the hearsay objection, the court could not have admitted the statement under the catch-all exception of Rule 803(24). See State v. Smith,

315 N.C. 76, 96, 337 S.E.2d 833, 847 (1985) (finding reversible error where the trial court did not "set[] out in the record his analysis of the admissibility of hearsay testimony pursuant to the requirements of Rule 803(24)"). Because the admission of Ms. Little's statement regarding what a doctor said about her diagnosis does not fall within any hearsay exception, it was inadmissible evidence. Even so, "[i]t

is well established that even when the trial court commits error

-7in allowing the admission of hearsay statements, one must show that such error was prejudicial in order to warrant reversal." In re F.G.J., M.G.J., 200 N.C. App. 681, 687-88, 684 S.E.2d 745, 750 (2009) (internal quotation marks omitted). When a trial court sits without a jury, this Court

generally "presume[s] that the [trial] court disregard[ed] the incompetent evidence" and sustains the trial court's findings if they are supported by competent evidence. Munchak Corp. v. Here,

Caldwell, 301 N.C. 689, 694, 273 S.E.2d 281, 285 (1981).

however, the trial court specifically found that plaintiff had suffered "neck strain," and the only evidence submitted of that diagnosis was Ms. Little's inadmissible testimony.

Consequently, it is apparent that the trial court did, in fact, rely upon the inadmissible hearsay. finding of fact, we cannot conclude Given the trial court's that admission of the

evidence was harmless error. Defendant next asserts that the trial court erred in

admitting evidence that defendant was convicted in the separate criminal case arising out of the alleged assault. During the

hearing in this case, Ms. Little testified that she had filed assault charges against Mr. Little. When asked by the trial

court whether she had any further testimony, she said: "I did --

-8as far as the assault charge, Mr. Little was found guilty of it." Ms. Little also presented an apparently uncertified

document from the criminal file in support of her testimony. After Mr. Little's attorney objected that the document was

uncertified, the trial court asked for the document and ruled that he was taking "judicial notice of the contents of the

official file, 11 CR 055306."

The trial court explained that he

was finding the criminal file "relevant to the case here." After noting Mr. Little's attorney's objection to its

taking judicial notice of Mr. Little's criminal file, the court ruled: "This Court -- the Court still takes judicial notice of it." The trial court then indicated it would grant the domestic

violence protective order, but took a recess for the purpose of going to get the file regarding defendant's criminal conviction: I want to just get that file that I took judicial notice of. I'm gonna go ahead and enter the Order. If you want to be here, that's fine. If not, otherwise, let's go ahead and enter it. If you want to be here, that'll be fine, but I'll -- I haven't signed it yet. After a 15-minute recess, the trial court returned and said the following: In this case, although I had rendered my decision prior to actually seeing the criminal file, which I noted I would take judicial notice during the trial itself,

-9Madam Clerk has now produced that. I see that on October 10th, 2011, the defendant appeared in front of Judge Sabiston and entered a plea of not guilty to one count of assault on a female, and contrary to his pleas, was found guilty of assault on a female; again, on October 10th of 2011, for this same incident. The court then included the following finding of fact in the order: Criminal charges filed in 11 CR 055306. Court takes judicial notice of contents of that file. Defendant was found guilty on 10/10/11 of assault on female by presiding Judge Sabiston. We first note that defendant does not cite any authority for his contention that the trial court's going to get Mr.

Little's criminal file and thereby "procuring evidence for" Ms. Little was improper. take judicial notice case Indeed, a "[t]rial court[] may properly of 'its the own records noticed in has any prior or

contemporary

when

matter

relevance.'"

Stocum v. Oakley, 185 N.C. App. 56, 61, 648 S.E.2d 227, 232 (2007) (quoting Kenneth S. Broun, Brandis and Broun on North Carolina Evidence

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