State v Hunter, 151 NC App 750 (01-1126) 08/06/2002

Appeal by defendant from judgments entered 8 February 2001 by Judge W. Erwin Spainhour in Rowan County Superior Court. Heard in the Court of Appeals 5 June 2002.

Attorney General Roy Cooper, by Assistant Attorney General Jane T. Hautin, for the State.

David Y. Bingham for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Dewella Lacey Hunter was tried before a jury at the 8 February 2001 Criminal Session of Rowan County Superior Court after being charged with two counts of felony child abuse. Evidence for the State showed defendant adopted two girls, LaTrece and LaCarol Lacey, in the early 1990s. The girls were previously in foster care with Mrs. Carolyn Withers, defendant's former foster mother and next door neighbor. At all times relevant to the case, LaTrece was 12 years old, and LaCarol was 11 years old.
    Defendant met Monte Hunter at the Veteran's Administration Hospital in Salisbury, North Carolina, where she was a nurse's assistant and he was a patient undergoing treatment for schizophrenia and substance abuse. After Mr. Hunter's release fromthe hospital, he and defendant began living together and eventually married on 10 October 1995. After the marriage, the relationship between defendant and her foster parents deteriorated. Defendant no longer allowed her daughters to visit the Withers home, though Mrs. Withers was occasionally able to see the girls outside. Mr. Hunter often watched the girls when defendant was at work.
    Around July 1999, Mrs. Withers noticed LaTrece seemed to be gaining weight and suspected she was pregnant. Mrs. Withers told LaTrece to get her mother to take her to the doctor, but Mrs. Withers did not know whether LaTrece in fact went to the doctor. Mrs. Withers called the Rowan County Department of Social Services (DSS) in August and told the social workers that she believed LaTrece was pregnant. DSS instructed Mrs. Withers to contact LaTrece's school.
    By October 1999, several teachers and school employees at West Rowan Middle School suspected LaTrece was pregnant. Ms. Dottie Milstead, the school nurse, examined LaTrece and opined that she was pregnant, but LaTrece denied that she was sexually active. LaTrece's homeroom teacher, Ms. Jane Current, telephoned defendant and asked about LaTrece's health and informed her that LaTrece's classmates made her cry by teasing her about being pregnant. Defendant denied LaTrece was pregnant and instead maintained that LaTrece ate a lot of junk food, was getting fat, and also suffered from constipation, lactose intolerance, and severe gas. However, after calling defendant, the teachers noticed LaTrece wore new, bigger clothes which disguised her condition.     Dr. Kathleen Russo testified she examined LaTrece in defendant's presence on 20 October 1999. After talking with both defendant and LaTrece, Dr. Russo asked LaTrece to move to the examining table. At that point, Dr. Russo testified that “when she stood up, I was just astounded by her appearance, and felt like she looked like a pregnant woman.” Dr. Russo was also able to feel the baby move as she examined LaTrece. LaTrece denied being sexually active or pregnant, and defendant also denied that LaTrece was pregnant. When Dr. Russo asked defendant to put her hand on LaTrece's stomach and feel the baby move, defendant stated, “Well, gas can do that.” Dr. Russo testified that
        Ms. Hunter sat in the chair during the entire visit and really showed no emotion. She was very calm. She did not appear upset even when I told her that her daughter was pregnant. She didn't seem surprised; she didn't seem angry. During the visit LaTrece was very upset, very frightened. She cried the entire time. She pleaded with me to leave her alone and at no time did Ms. Hunter console her child, try to comfort her or even to encourage her to answer my questions.

    Throughout the examination, defendant maintained LaTrece had a problem with constipation, but admitted LaTrece had not had a menstrual period since the first of the year. Defendant told Dr. Russo that she took LaTrece to Dr. Jill Aiken on 23 July 1999. At that time, Dr. Aiken performed an abdominal ultrasound, but diagnosed only constipation and prescribed medicine for it. When asked about this at trial, Dr. Russo explained that both pelvic and abdominal ultrasounds are necessary to determine pregnancy; thus, it was not unusual for Dr. Aiken to have missed the pregnancy sinceshe did not perform a pelvic ultrasound. Dr. Russo performed a pregnancy test on LaTrece, which came back positive. Dr. Russo testified she talked with LaTrece alone and convinced her to write down the name of the man who got her pregnant. LaTrece wrote “Monte” on a piece of paper. Dr. Russo stated that, upon telling defendant about the paper,
            [a]gain, no reaction. She did not cry; she wasn't upset; she wasn't angry; she didn't comfort her child; she didn't console her, [didn't] seem surprised. It was a very unusual reaction.

After the examination, Dr. Russo called DSS and the police.
    Detective Tonya Rusher of the Rowan County Sheriff's Department testified she went to the clinic and met defendant, Monte Hunter, LaTrece and LaCarol on 20 October 1999. She kept Monte Hunter away from LaTrece, but asked the family to follow her and LaTrece to the police station in their car. When Detective Rusher interviewed LaTrece, she was upset, crying and unresponsive. Detective Rusher also interviewed LaCarol, and learned Monte Hunter sexually abused her as well. Detective Rusher then spoke with defendant, who stated she had not known what was going on and had not known LaTrece was pregnant. Defendant asked if her husband was going to jail; when the police answered in the affirmative, she displayed no emotion, but did express concern that she would not be able to get around because she did not have a driver's license.
    Detective Rusher then advised Monte Hunter of his Miranda rights and took his statement. Mr. Hunter admitted he had sex with both LaTrece and LaCarol “to show [them] what life was about.” Hesaid the girls jumped into his bed, flirted with him, and touched him. He also stated he often told defendant he needed to get his own place before something happened; however, defendant did not want him to leave. Monte Hunter stated, “The girls were covering it up. They never told their mother.” Mr. Hunter also told Detective Rusher that
        “while we were waiting in the lobby, I told her I had been having sex with LaTrece. I also told her I had been having sex with LaCarol. She said she knew something was going on. She had been suspecting something was going on. I told the girls that if I got caught I would go to jail. I don't need help. I don't have a problem. I don't need any counseling. I knew this day was going to come. I'm sorry that this is just dirt under the bridge. This shouldn't be a big issue.”

    Detective Rusher then spoke with LaCarol and defendant again. She also took a written statement from defendant during the second interview, and read it into evidence at trial. During the second interview, defendant admitted she had repeatedly asked the girls if Monte Hunter had “messed” with them, and they always denied it. She stated that her husband told her the girls flirted with him and jumped into bed with him, and she acknowledged that he often told her he needed his own place. Defendant admitted she told the girls to stay out of her room and away from Monte Hunter. Defendant also acknowledged she left the girls alone with Hunter while she was at work, even though he told her he was afraid he would “mess” with them. With regard to the pregnancy, defendant asserted she thought LaTrece was merely constipated, and did not know her daughter was pregnant. Defendant concluded, “I feel now that I should have donemore to protect my children.”
    The State also called Monte Hunter to testify at trial. He testified that he pleaded guilty to two counts of statutory rape and one count of statutory sex offense against his stepdaughters and was serving a 200-345 month prison term. He testified he drank in front of the girls, but went outside to do drugs. After he began “messing” with the girls, he made them watch pornographic movies with him. Monte Hunter testified he began having sex with LaTrece once or twice a week when she was 11 or 12 years old. He found out she was pregnant after about seven months of sexual activity. He stated he stopped having sex with her when he suspected she was pregnant, and further stated she came home from school one day wearing a bra that was wet from milk. He stated he was no longer interested in having sex with his wife after he began molesting the girls, and was tired all the time from too much sex. Monte Hunter believed he was “a victim of circumstances” and too much temptation. He testified defendant did not know what was going on between him and the girls, but did admit he warned defendant that he needed his own place and “[s]he could have put two and two together.”
    Monte Hunter also testified at length about the statement he gave to Detective Rusher on 20 October 1999, the night he was arrested. He stated he told Detective Rusher about his sexual activities with both LaTrece and LaCarol, but did not recall telling Detective Rusher that defendant said she knew what was going on. Mr. Hunter told Detective Rusher he last had sex withLaTrece about one week before his arrest. When cross-examined by the State at trial regarding the inconsistencies between his in- court testimony and his prior statement, Mr. Hunter said that when he gave his statement on 20 October 1999, “I wasn't in my right mind, I was kind of scared. I would have said anything. . . . Yeah, I signed it because I thought I was going home that day.” Despite these statements, Mr. Hunter affirmed that, when giving his statement to Detective Rusher, “I was trying to tell the truth. I was telling the truth, the whole truth.”
    After the interviews at the police station on 20 October 1999, DSS placed LaTrece and LaCarol in foster care with Mr. and Mrs. Withers. On 29 November 1999, defendant was indicted for two counts of felony child abuse. On 1 December 1999, LaTrece gave birth to a son; DNA tests later confirmed Monte Hunter was the baby's father.
    After the State's presentation of evidence, defendant moved to dismiss the charges against her. The trial court denied the motion. Defendant did not put on evidence, but renewed her motion to dismiss at the close of all the evidence. Once again, the trial court denied the motion. After deliberating, the jury found defendant guilty of one count of felonious child abuse by sexual act as to LaTrece Lacey and guilty of one count of felonious child abuse by sexual act as to LaCarol Lacey. The trial court determined that defendant had a prior record level of II and sentenced her to two active consecutive terms of 29-44 months' imprisonment. Defendant appealed.     On appeal, defendant argues the trial court erred by (I) denying her motions to dismiss at the end of the State's evidence and at the close of all the evidence; (II) instructing the jury on interested witnesses; and (III) admitting State's Exhibit 5 as substantive evidence. For the reasons set forth herein, we disagree with defendant's arguments and conclude defendant received a trial free from prejudicial error.

By her first assignment of error, defendant contends the trial court erred by denying her motions to dismiss the case against her at the close of the State's evidence and at the close of all the evidence because the State did not provide sufficient evidence that she “allowed” her husband to engage in sexual activity with LaTrece and LaCarol. Specifically, defendant contends there was insufficient evidence to demonstrate that she was aware that her husband was sexually abusing the girls prior to 20 October 1999. We do not agree.

            When ruling on a motion to dismiss, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). If substantial evidence of each element is presented, the motion to dismiss is properly denied. State v. Quick, 323 N.C. 675, 682, 375 S.E.2d 156, 160 (1989). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Olson, 330 N.C. at 564, 411 S.E.2d at 595. The evidence must be considered in the light most favorable to the State, and the State isentitled to every reasonable inference to be drawn from the evidence. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. Id.

State v. Barnes, 345 N.C. 184, 241-42, 481 S.E.2d 44, 76, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998). In ruling on a motion to dismiss, the trial court must consider “[a]ll the evidence admitted, whether competent or incompetent” and whether direct or circumstantial. State v. Noffsinger, 137 N.C. App. 418, 423, 528 S.E.2d 605, 609 (2000) (citations omitted).
    Defendant was convicted of two counts of felonious child abuse under N.C. Gen. Stat. § 14-318.4(a2) (2001), which states:
        Any parent or legal guardian of a child less than 16 years of age who commits or allows the commission of any sexual act upon a juvenile is guilty of a Class E felony.

To successfully endure defendant's motions to dismiss, the State had to provide substantial evidence that defendant was the parent or legal guardian of LaTrece and LaCarol, that LaTrece and LaCarol were under the age of sixteen years at the time the crimes charged were committed, and that defendant allowed the commission of sexual acts upon LaTrece and LaCarol.
    In the present case, defendant argues the State failed to provide substantial evidence that she allowed her husband Monte to commit sexual acts upon LaTrece and LaCarol. While our research has revealed no cases which directly address the type of evidence needed to overcome a motion to dismiss on this element, we believeit is possible to analogize to other types of criminal child abuse by a third party (in which a parent fails to prevent the abuse to the child) to make this determination.
    In State v. Walden, 306 N.C. 466, 293 S.E.2d 780 (1982) a mother was found guilty under N.C. Gen. Stat. § 14-32(b) of assault with a deadly weapon inflicting serious injury upon her child under a theory of aiding and abetting where she was present when her boyfriend assaulted her child, but she did not take reasonable steps to protect the child. In affirming defendant's conviction, the Walden Court stated:
        [W]e believe that to require a parent as a matter of law to take affirmative action to prevent harm to his or her child or be held criminally liable imposes a reasonable duty upon the parent. Further, we believe this duty is and has always been inherent in the duty of parents to provide for the safety and welfare of their children, which duty has long been recognized by the common law and by statute. . . .

            . . . .

            [W]e hold that the failure of a parent who is present to take all steps reasonably possible to protect the parent's child from an attack by another person constitutes an act of omission by the parent showing the parent's consent and contribution to the crime being committed.

Id. at 475-76, 293 S.E.2d at 786-87. Walden has been cited with approval in Noffsinger and State v. Ainsworth, 109 N.C. App. 136, 426 S.E.2d 410 (1993). Together, these cases stand for the proposition that a parent has an affirmative legal duty to protect their children from physical or sexual assault and may be heldcriminally liable if they fail to take reasonable measures to comply with that duty.
    Furthermore, even though the parents in the previous three cases were physically present when the abuse occurred, the State argues a requirement of physical presence should not be engrafted upon N.C. Gen. Stat. § 14-318.4(a2) when the theory of prosecution is that the parent allowed the commission of a sexual act upon a child under the age of sixteen. The defendants in Walden, Noffsinger, and Ainsworth were convicted on the theory of aiding and abetting. None of the substantive statutes the defendants were convicted of violating expressly stated that allowing or permitting a third party to harm a child was a criminal offense. Instead, the State had to prove the parent was actually or constructively present at the scene of the crime to obtain a conviction on a theory of aiding and abetting. See Noffsinger, 137 N.C. App. at 428, 528 S.E.2d at 611-12. In the present case, defendant was not convicted of felony child abuse on a theory of aiding and abetting. The State maintains there is nothing to suggest that a parent must be present when another individual sexually abuses the parent's child in order for the State to successfully prosecute the parent for violation of N.C. Gen. Stat. § 14-318.4(a2). Based on the foregoing rationale, the State maintains there is no physical presence requirement.
    The State also points to the North Carolina Juvenile Code, which defines an abused juvenile as one whose parent “allows” or “permits” others to commit certain acts upon the child. N.C. Gen.Stat. § 7B-101(1) (2001). The State argues that cases decided under N.C. Gen. Stat. § 7B-101 offer guidance for resolution of the present case, as the language of N.C. Gen. Stat. § 7B-101 is similar to N.C. Gen. Stat. § 14-318.4(a2). See In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997); and In re McLean, 135 N.C. App. 387, 521 S.E.2d 121 (1999) (both supporting the proposition that a parent allows another person to commit an act against a child when he or she is aware of, or should reasonably be aware of, the circumstances placing the child at risk but fails to take reasonable measures to avert the harm).
    Defendant, on the other hand, argues Helms and McLean are distinguishable because she, unlike the parents in those cases, was not aware of, and should not reasonably have been aware of, the circumstances placing her children at risk for abuse. Defendant maintains she repeatedly asked both the girls and her husband if molestation occurred and everyone denied that it had. Defendant argues she first gained actual knowledge of the abuse on 20 October 1999, when Monte Hunter confessed his actions to her and she learned of LaTrece's pregnancy from Dr. Russo. Thus, she contends she should not be held liable for the harm that befell her daughters.
    However, defendant's position ignores the ample evidence of her awareness of her daughters' plight, as well as her failure to prevent the abuse. Defendant admitted to Detective Rusher that since early 1999, her husband warned her the girls flirted with him and he wanted his own place because he was afraid he would “mess”with them or have sex with them. Monte Hunter confirmed these facts in his own statement to Detective Rusher, and he also admitted that defendant nonetheless told him she did not want him to move out of the house. He also said defendant could have figured out for herself the reasons why he wanted his own place. With regard to LaTrece's pregnancy, Monte Hunter stated it was “obvious” the girl was pregnant because she stopped having menstrual periods, had an increasingly large abdomen, and was lactating.
    Defendant admitted she knew that LaTrece stopped having periods in early 1999, and she noticed LaTrece's growing abdomen and purchased larger clothes for her daughter to wear. Defendant acknowledged that she often asked the girls if Monte Hunter was molesting them. Defendant also spoke with teachers and other staff members at LaTrece's school about their concern that the child was pregnant. Additionally, defendant's behavior at Dr. Russo's office on 20 October 1999 indicates she knew what was going on in her home and did not take steps to address the problem. Defendant remained calm and did not display anger, surprise, or any other emotions when she heard LaTrece was pregnant and Monte Hunter was the father. Finally, defendant's behavior at the police station on 20 October 1999 further indicates her awareness of the sexual abuse and her failure to address it. Defendant did not express surprise or emotion, but only talked about her transportation problems should Monte Hunter go to jail. In the police station lobby, Monte Hunter told defendant he was the father of LaTrece's baby, to whichdefendant replied that she knew something was going on and suspected it for a while.
    The sum of the evidence indicates defendant was aware, or should reasonably have been aware, that her daughters were in danger of molestation from Monte Hunter from early 1999 onward. Defendant repeatedly left the girls with Monte Hunter when she worked, but could apparently have made other arrangements with Mrs. Withers without problem. As such, the trial court did not err in denying defendant's motions to dismiss, and her first assignment of error is overruled.

    By her final assignment of error, defendant contends the trial court erred by admitting State's Exhibit 5 (Monte Hunter's statement) as substantive evidence because his statement should have been limited to impeachment purposes. Defendant further contends her statements to Monte Hunter (as he related them to Detective Rusher) were not properly admitted as statements against penal interest under N.C. Gen. Stat. § 8C-1, Rule 804(b)(3) (2001). On both counts, we disagree.
    Monte Hunter's statements in State's Exhibit 5 were admissible to impeach his trial testimony. See N.C. Gen. Stat. § 8C-1, Rule 607 (2001); and State v. Jones, 347 N.C. 193, 204-05, 491 S.E.2d 641, 648-49 (1997). Defendant twice made, then withdrew a requestfor a jury instruction limiting consideration of Monte Hunter's statements to impeachment purposes. Defendant apparently did so as a tactical maneuver because she believed unfavorable evidence would be unduly emphasized if the trial court first gave an instruction limiting the jury's consideration of Monte Hunter's statements to impeachment, but then told the jury it could consider defendant's statements to Monte Hunter as substantive evidence pursuant to the hearsay exception for statements against penal interest in N.C. Gen. Stat. § 8C-1, Rule 804(b)(3).
    “The admission without limitation of evidence which is competent for a restricted purpose will not be held to be error in the absence of a request by the defendant for limiting instructions.” State v. Whitley, 311 N.C. 656, 664, 319 S.E.2d 584, 589 (1984). See also N.C. Gen. Stat. § 8C-1, Rule 105 (2001); and N.C.R. App. P. 10(b)(2) (2001). Here, defendant made a tactical decision not to request a limiting instruction to which she was entitled. In so doing, she has therefore waived the right to assert on appeal that the admission of Monte Hunter's statements for substantive purposes was improper. See State v. Higginbottom, 312 N.C. 760, 767, 324 S.E.2d 834, 839-40 (1985); and Paris v. Kreitz, 75 N.C. App. 365, 379, 331 S.E.2d 234, 244-45, disc. review denied, 315 N.C. 185, 337 S.E.2d 858 (1985). Finally, we note that
            “[t]he theory upon which a case is tried in the lower court must prevail in considering the appeal and interpreting the record and determining the validity of the exceptions.” A defendant is not permitted to defend at trial upon one theory “and, upon an adverse verdict, call upon the appellate court togrant relief on the ground that the presiding judge should have intervened and guided his defense to another theory . . . .”

State v. Meadows, 306 N.C. 683, 691-92, 295 S.E.2d 394, 399 (1982) (citations omitted), overruled on other grounds sub nom. State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).
    The trial court also properly ruled that defendant's statements to Monte Hunter, as related in State's Exhibit 5, were substantively admissible as statements against penal interest pursuant to N.C. Gen. Stat. § 8C-1, Rule 804(b)(3). Rule 804(b)(3) provides:
        (b)    Hearsay exceptions. -- The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

        . . . .

                (3)    Statement Against Interest. -- A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability is not admissible in a criminal case unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Here, defendant was unavailable because she exercised her Fifth Amendment privilege against self-incrimination. See N.C. Gen. Stat. § 8C-1, Rule 804(a)(1) (2001); and State v. Hunt, 339 N.C. 622, 644-46, 457 S.E.2d 276, 289-90 (1994), cert. denied sub nom. Hunt v. McDade, 531 U.S. 945, 148 L. Ed. 2d 276 (2000). Defendant's statements to Monte Hunter at the police station wereagainst her penal interest because they established her knowledge that Monte Hunter was sexually abusing LaTrece and LaCarol. Defendant appears to object to the admission of her testimony because the trial court did not evaluate the corroborating circumstances.
    The trial court did rule that the circumstances surrounding the statements indicated their trustworthiness, and defendant did not assign error to the trial court's ruling. Contrary to defendant's position, we do not believe the trial court was required to engage in the six-step inquiry set forth in Phillips & Jordan Investment Corp. v. Ashblue Co., 86 N.C. App. 186, 190, 357 S.E.2d 1, 3, disc. review denied, 320 N.C. 633, 360 S.E.2d 92 (1987), as that inquiry applies to evidence proffered pursuant to the “residual” hearsay exceptions, not to evidence proffered as statements against penal interest. See N.C. Gen. Stat. § 8C-1, Rule 804(b)(3) and (b)(5). The hearsay exception for statements against penal interest contains a circumstantial guarantee of reliability, based upon “the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reasons that they are true.” State v. Wilson, 322 N.C. 117, 132, 367 S.E.2d 589, 598 (1988); see also Official Comment, N.C. Gen. Stat. § 8C-1, Rule 804(b)(3).
    Furthermore, the trial court was not limited to assessing Monte Hunter's credibility in determining whether corroborating circumstances indicated the trustworthiness of defendant's statements to him. See Wilson, 322 N.C. at 134, 367 S.E.2d at 599. The trial court ruled the probative value of defendant's statements to Monte Hunter contained in State's Exhibit 5 outweighed the risk of unfair prejudice and were therefore admissible under N.C. Gen. Stat. § 8C-1, Rule 403 (2001). As defendant did not assign error to the ruling, it must stand on appeal. The trial court properly admitted State's Exhibit 5 in its entirety as substantive evidence, and defendant's final assignment of error is overruled.
    After careful examination of the record and the arguments of the parties, we conclude defendant received a fair trial, free from prejudicial error.
    No error.
    Judges WALKER and BRYANT concur.
    Report per Rule 30(e).

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