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1. Evidence--hearsay--medical diagnosis or treatment exception --videotape interviews of minor children
The trial court did not err in a double taking indecent liberties with a minor case by denying defendant father's motion to suppress and by overruling his objections to the introduction of the interviews of the minor children as substantive evidence on the basis that they were statements made for the purpose of medical diagnosis or treatment pursuant to N.C.G.S. § 8C-1, Rule 803, because: (1) both children testified at trial and were subject to cross- examination, and thus, there was no violation of defendant's right to confrontation; (2) both children were old enough to understand the interviews had a medical purpose and they indicated as such; (3) the circumstances surrounding the interviews created an atmosphere of medical significance; (4) the interviews took place at a medical center with a registered nurse immediately prior to a physical examination; (5) although the examinations took place in a child- friendly room instead of a medical examination room, our Supreme Court has stated that the trial court should consider all objective circumstances of record surrounding declarant's statements in determining whether he or she possessed the requisite intent under Rule 803(4); (6) the evidence taken in its entirety indicates the statements were made at the children's first visit to a doctor after discovery of these particular allegations of sexual abuse; and (7) both children identified their father as the abuser in their interviews, and such identification was not made simply for trial preparation but also to diagnose psychological problems and prepare a course of treatment.
2. Jury--alleged juror misconduct--foreperson waited to mark verdict sheet--motion
The trial court did not err in a double taking indecent liberties with a minor case by failing to declare a mistrial due to alleged jury misconduct arising out of the foreperson having not yet marked the verdict forms on 22 May when it appears from the transcript that the jury may have reached a tentative verdict on one of the charges on 22 May but the jurors indicated to the trial court that they wanted to continue deliberations the next day, because: (1) the foreperson followed the instructions of the trial court and waited until all members of the jury were satisfied with the verdict before making the verdict final by marking the form; and (2) the foreperson's indication to the trial court on 22 May that the jury had not reached a final verdict was not a calculated lie, as defendant contends, but rather a cautious adherence to instructions.
3. Indecent Liberties--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss charges of taking indecent liberties with a minor at the close of the State's evidence and at the close of all evidence, because: (1) although defendant contends the children's accounts contain conflicting details and therefore lack credibility, it is the province of the jury to weigh the credibility of witnesses; and (2) although defendant presented evidence to contradict the testimony of the children, such discrepancies must be resolved in favor of the State upon a motion to dismiss.
4. Sentencing--aggravating factors--took advantage of a position of trust or confidence
to commit indecent liberties--Blakely error
Defendant's motion for appropriate relief is allowed and defendant is entitled to a new sentencing hearing because a jury did not find beyond a reasonable doubt that defendant took advantage of a position of trust or confidence to commit indecent liberties in order for defendant to be sentenced in the aggravated range. Such error is structural error that is reversible per se.
Attorney General Roy Cooper, by Assistant Attorney General
Clinton C. Hicks, for the State.
James P. Hill, Jr. for defendant-appellant.
MARTIN, Chief Judge.
Defendant was found guilty by a jury of two counts of taking indecent liberties with a minor child. The trial court found as a factor in aggravation of sentencing that defendant took advantage of a position of trust or confidence to commit the offense. Defendant was sentenced in the aggravated range to two consecutive terms of twenty to twenty-four months imprisonment. Defendant appeals.
The evidence at trial tended to show the following: C.L., a nine-year-old child, lived with her mother; the defendant, who is her father; and her seven-year-old brother, M.L., in Concord, North Carolina. C.L. testified that one night in January or February of 2001 while her mother was at work, defendant showed her and M.L. pornographic movies, pornographic magazines, and pornographic images on his computer. Defendant and M.L. took their clothes off, and they asked C.L. to take off her clothes as well. She complied. M.L., within the hearing of defendant, asked C.L. if she would show him how [her] private opens. Defendant did not comment on M.L.'s request.
The following night, when her mother left for work, C.L. testified that, [h]e showed us more sexual movies, and he showed us more things on the computer, and he [brought] out the toys then. The toys, C.L. testified, were [o]f a man's private and a woman's private, and defendant asked C.L. to stick the man's private into [her] private. C.L., however, refused. She testified that then defendant wanted me to make him come, so he [t]ook my hand and rub[bed] it up and down his private using a lubricant. Defendant instructed her to do the same to her brother. C.L. testified that later, defendant taught [her] about a B.J. where a woman sucks on his private, and I had to do that to . . . [m]y brother. Defendant also asked M.L. and C.L. to have sexual intercourse. Defendant told C.L. not to tell anyone about these incidents or he would go to prison.
M.L. testified at trial that he remembered a time when he, C.L., and defendant were all together in the house unclothed. He testified that he and C.L. were coerced by defendant to touch each other's privates. Defendant also showed them videos of [p]eople doing sexual things. M.L. testified he saw defendant cleaning his private in the presence of C.L. He stated that defendant was present when M.L. and C.L. touched each other's privates, and that defendant, after describing what a B.J. was, told C.L. to give her brother a B.J. C.L. then performed fellatio on M.L. Defendant testified that one night in February, C.L. and M.L. asked if they could watch a movie. He said yes, and he believed they had put in one of their Disney movies. He was in a different room on the computer at the time. About twenty minutes later, he heard noises inconsistent with a Disney movie, so he went to see what they were watching. He discovered they were watching some of his pornographic tapes. He continued watching with the children for about a minute, then he took out the tape. After this incident, C.L. and M.L. began asking questions about what they had seen, and defendant tried to answer their questions.
Defendant also testified that he suffers from severe depression and a ruptured disc in his neck. He takes medication for his depression, which causes him to have difficulty achieving an erection and reduces his interest in sex. He denied having his children (1) touch each other, (2) touch his private, or (3) have intercourse with each other. He also denied ever having been naked around his children.
The week after the alleged incidents occurred, C.L. told her mother and maternal grandmother about the sexual acts she performed with her father and brother. They, however, did not immediately report the incidents. Her mother, T.L., testified that she discussed the allegations with her husband, and he told her the children had only seen those acts in the pornographic movie they inadvertently watched. T.L. testified that when questioned again, C.L. admitted to her she had not seen any sexual acts in person but had only seen them on the video tape. Both defendant and his wifetestified that they constantly had to discipline their children for not telling the truth.
The alleged abuse was not reported until June, 2001 when C.L. told her aunt, Veronica Lewis, what had happened. Ms. Lewis, the wife of defendant's brother, contacted the Swain County Department of Social Services (DSS), which notified the Concord Police Department of the allegations. John Cunningham, a child protective services social worker with the Swain County DSS, investigated the case and took statements from C.L. and M.L. which corroborated their testimony at trial.
Defendant testified he had a very bad relationship with Ms. Lewis. Defendant and Ms. Lewis had dated before she married his brother. Defendant described Ms. Lewis as being vindictive towards him and said she had threatened him physically on at least one occasion. Defendant's brother, Anthony Lewis, also testified to the volatile relationship between defendant and Veronica Lewis.
On 24 July 2001, C.L. and M.L. were taken to the Children's Advocacy Center at the Northeast Medical Center. The Children's Advocacy Center provides medical diagnoses and treatment to children who are alleged victims of physical or sexual abuse. C.L. was interviewed by Donna Hinson Brown, a registered nurse, and M.L. was interviewed by Julie Brafford, also a registered nurse. These interviews took place in a child-friendly room, not a medical examination room. The interview rooms often have markers or Playdough for the children to play with. Brafford testified that she was wearing a nurse's uniform during the interview. C.L. and her mother signed a form prior to the interview which stated,
I have been told that I am here at Northeast Medical Center for a doctor's checkup and that part of that checkup includes talking to Donna Brown, R.N. I also have been told that Donna Brown, R.N., will share what is talked about with the doctor.
M.L. and his mother signed an identical form which identified Julie Brafford as the registered nurse. Each registered nurse also explained to the children and their mother that she would discuss the interview with a medical doctor who would then perform a physical examination. Brown testified that after her interview with C.L., she shared with [the doctor] my direct recollection of what we had just discussed in the interview room. . . . [and] show[ed] him some diagrams that she had clarified where she had been touched. Brafford also testified that she spoke with the doctor regarding everything [M.L.] had disclosed to her.
Brown testified that during the interview she showed C.L. an anatomical drawing of a female and asked where C.L. had been touched that she did not like. C.L. identified the genital area and her mouth. Brown also showed C.L. an anatomical drawing of a male and asked what parts she had touched or had touched her. C.L. identified the genital area as the part she had touched of her father and brother, and she stated that she did not like this touch. During the interview, C.L. again stated that she, her brother, and her father had all been naked one night. She also stated that (1) her father made her brother put his private into her private, (2) her father showed her how to stroke his privatepart, and (3) her father asked her to give her brother a B.J., and she thought her father would whoop her if she did not comply.
Julie Brafford testified that during the interview, M.L. was unable to speak certain things out loud. She asked him to write what he could not say, and he wrote he made us perform sexual acts. M.L. identified a male's private place on a drawing as the genital area, and he drew pictures of his private place and his sister's private place. Upon questioning, M.L. said his father had never touched either him or his sister, but he and his sister were made to touch each other. He also said he and his sister had seen bad things on the computer and bad things on the television with their father. After the interview, the doctor performed a medical examination of M.L. There were no physical findings from the exam.
Both interviews were video-taped. Prior to trial, defendant moved to suppress any and all evidence resulting from these statements and video and rule the same inadmissible [at] trial, arguing that they were not made for the purposes of medical diagnosis or treatment. The trial court denied defendant's motion. The tapes were admitted as substantive evidence at trial and shown to the jury, to which defendant made a general objection.
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