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1. Evidence--hearsay--nontestimonial--residual hearsay exception
The trial court did not abuse its discretion in a multiple first-degree sex offense and multiple taking indecent liberties with a minor case by admitting the children's hearsay statements to their foster parents and to medical personnel, because: (1) defendant concedes that the statements made to the children's foster parents were not testimonial, and therefore, did not violate the Confrontation Clause; (2) the children's statements to their foster parents were admissible under the residual hearsay exception when the children testified they had told the foster parents about things defendant had done but did not remember what they told the foster parents, the statements were more probative on the points for which they were offered than any other evidence the State could produce through reasonable efforts at the time, the State gave proper notice of its intent to offer the statements, the children's statements possess equivalent circumstantial guarantees of trustworthiness, and it cannot be said the trial court's findings and conclusions were manifestly unsupported by reason or were so arbitrary that they could not have been the result of a reasoned decision; and (3) Child 3's statements to a doctor (that defendant put his hand in the child's bottom, that it hurt, and that defendant touched the two other children in the same way) were not testimonial and defendant's right to confrontation was not violated when it cannot be concluded that a reasonable child under three years of age would know or should know that his statements might later be used at trial.
2. Evidence_-expert testimony--sexual abuse--credibility--posttraumatic stress
disorder--plain error analysis
Although the trial court erred in a multiple first-degree sex offense and multiple taking indecent liberties with a minor case by admitting certain statements made by two expert witnesses including that the children suffered sexual abuse by defendant, concerning Child 3's credibility, and regarding the children's symptoms of posttraumatic stress disorder, it did not amount to plain error because it cannot be concluded that there was a reasonable possibility that a different result would have been reached by the jury when the evidence against defendant was overwhelming.
3. Constitutional Law--right to unanimous jury verdict
The trial court did not err or commit plain error in a multiple first-degree sex offense and multiple taking indecent liberties with a minor case by failing to require the jury to be unanimous as to the actus reus for each charge, because: (1) the risk of a nonunanimous verdict does not arise even if the jury considered a greater number of incidents than charged in the indictments because, while one juror might have found some incidents of misconduct and another juror might have found different incidents of misconduct, the jury as a whole found that improper sexual conduct occurred; and (2) the jury was instructed on all issues including unanimity and separate verdict sheets were submitted to the jury for each charge.
4. Discovery--documents--review of records submitted under seal
The trial court did not err in a multiple first-degree sex offense and multiple taking indecent liberties with a minor case by failing to require the State to provide certain documents to defendant prior to trial, because upon careful review of the records submitted under seal, theCourt of Appeals did not find any exculpatory evidence that would entitle defendant to a new trial.
5. Appeal and Error--motion for appropriate relief--recantation of witness's testimony
Defendant's motion for appropriate relief must be remanded based upon the alleged recantation of the testimony of defendant's wife, because the Court of Appeals cannot determine the veracity of the witness's testimony, nor can it discern whether there is a reasonable possibility that a different result would have been reached at trial had the witness's testimony at trial been different or nonexistent.
6. Appeal and Error_-amended motion for appropriate relief--dismissal without
Defendant's amended motion for appropriate relief alleging new grounds including ineffective assistance of counsel is dismissed without prejudice to defendant to file a new motion for appropriate relief in the superior court, because this motion did not amend the previous motion nor was it timely filed.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Miles & Montgomery, by Mark Montgomery, for the defendant.
MARTIN, Chief Judge.
Defendant was convicted by a jury of eighteen counts of first degree sex offense and twenty-seven counts of taking indecent liberties with a minor. The convictions were consolidated into five judgments, for which he received two sentences of 339 months to 416 months imprisonment and three sentences of twenty-five to thirty months imprisonment, all to be served consecutively. Defendant appeals. The State presented evidence at trial tending to show that on 15 April 2002, the Rockwell Police Department received a call from defendant's neighbor regarding three children who were walking down the street towards Highway 152. Hugh W. Bost, Jr., Chief of Police for the town of Rockwell, responded to the call and located the three children. (See footnote 1) They were all boys of pre-school or kindergarten age. The youngest of the three was not wearing any clothes, and Chief Bost smelled what he believed to be feces on his legs. The older two were haphazardly clothed and dirty. One of the children told Chief Bost where they lived, and when he took them to the residence, Kimberly Brigman, defendant's wife and the mother of all three children, answered the door. She was not aware the children had left the house. At that time, Chief Bost returned the children to Mrs. Brigman.
Chief Bost reported the incident to the Rowan County Department of Social Services (DSS). Marcus Landy, a DSS investigator/case manager with Child Protective Services, went to defendant's residence later that night to investigate the home. When he arrived, he noted the children were extremely dirty with black feet and dirty palms. They had feces down their legs where they had used the bathroom on themselves. The youngest child was soaking wet with urine. Mr. Landy noticed the entire home smelled like urine, and Kimberly Brigman told him the children used the bathroom in the corners of the house. Mr. Landy also foundmoldy food in the kitchen and noticed that the refrigerator was dirty. He believed it was in the children's best interest to be taken into DSS custody immediately, and they were placed with foster parents that night.
Foster parents Tammy and Michael McClarty took in the older two boys, Child 1 and Child 2, who were four and five years old respectively. Tammy McClarty testified that over the next few months, both boys, but particularly Child 2, had numerous bowel movements in their pants. On or around 12 June 2002, Mrs. McClarty heard Child 2 in another room screaming, Lick me, lick me. When she went to see what they were doing, she observed them on the couch and [Child 2] was laying on his back and [Child 1] was laying on top of him, and [Child 2] had [Child 1] by his shoulders and he was face to face and he was screaming, 'Lick me, lick me.' She asked the boys what they were doing, and Child 2 said they were playing puppy. She separated the boys on the couch, and went to tell her husband she could not help with dinner at the moment. When she returned, [Child 1] was laying on his back, and [Child 2] was laying next to him and had his hands between [Child 1's] legs. She again asked what they were doing, and they said they were playing the picture game. The boys said the picture game was when defendant and their mother would take pictures of them. The boys demonstrated sexual poses they would do for the pictures and said they were not wearing any clothes when the pictures were taken. The boys also described a licking game to Mrs. McClarty. She testified Child 2 told her that in this game, they would lick each other's naked butts and naked weenies. He said defendant and their mother were both present when they played, as well as their youngest brother, Child 3, and that defendant was the winner so he got to lick everyone's naked butts and naked weenies. Child 2 said he was also a winner so he got to lick his mommy's butt. . . . and [Child 1's] too. Child 1 at first denied licking anyone, but then admitted to licking Mommy's butt. Child 2 stated that Child 3 also licked the weenie. When Mrs. McClarty questioned them on what they meant by weenie, Child 2 pointed to his crotch area and said, 'this weenie.' Mrs. McClarty recorded this conversation on a tape recorder, then later that night typed out notes from the recording. She reported the conversation to DSS and gave her notes to the boys' social worker. Two attempts were made to interview the boys in the next few days, but they would not talk to the interviewers. Mrs. McClarty also took the boys to the Northeast Medical Center for medical examinations.
Child 2 was adopted; his adoptive mother testified at trial that when Child 2 first came into her home in July of 2002, he had severe night traumas four to six times a night, numerous temper tantrums, and [h]e continuously soiled his pants. Over time, his behavior, sleep, and bowel control improved greatly. However, when he was in the courtroom for defendant's trial, he wet his pants. Since that day, according to his adoptive mother, he had continuedto wet and soil his pants, he was having tantrums that he hadn't had in several months, and he did not want to eat or sleep.
Child 3 was two years old when he was placed in DSS custody in April of 2002. He went to the home of foster parents, who also took in Child 1 in July of 2002. The foster mother testified that one night as she was preparing to give Child 3 a bath, he took a set of plastic baby keys and shove[d] one of them up into his rectum. He also took his index finger and stuck it up in his bottom. She testified that Child 3 said Kim put keys in me. Kim did it. Kim did it. About a week later, Child 3 again said that Kim put keys and a finger in his bottom. On another occasion, Child 3 also rub[bed] his private part on [the] couch and excited himself so that he urinated. The foster mother also testified that Child 1 told her defendant messed with his weenie all the time. . . . [and] that Richard pulled pinched, rubbed, and licked his weenie. Child 1 told her defendant put his weenie in [Child 1's] mouth . . . . [and] this made him choke and sometimes throw up. Child 1 said he had to swallow white stuff that looked like milk. Since the trial began, Child 1 and Child 3 have both had nightmares every night. Child 1 woke up screaming Richard, Richard, please do not hurt me. Child 3 said he dreamed about Kim hurting [Child 1] and Richard hurting [Child 2]. Upon seeing defendant in the courtroom at trial, Child 1 became very angry, and Child 3 told his foster mother he did not like seeing Richard because Richard was bad. The boys' foster father testified that Child 3 told him Kim and Richard bit all three boys on their weenie[s]. Child 3 also said defendant put his weenie in the child's mouth, as well as in his brothers' and Kim's mouths. The foster father also found Child 3 masturbating one day, and the child told him defendant had [p]layed with me [sic] weenie. Child 1 and Child 3 both told the foster father defendant made them take their clothes off and watch pornography. They also described an occasion where defendant urinated into a cup and the whole family drank it. They also had to drink pee from his weenie and sometimes it was white. Child 1 described one of his nightmares to the foster father in which Kim had my weenie in her mouth. Child 1 said this had really happened to him, as well as to the other boys and to defendant. When the foster father asked what defendant was doing in that dream, Child 1 said he was hitting [his butt] inside and outside with a stick. The foster father asked if this was something that had really happened, and Child 1 said yes. Child 1 had numerous nightmares involving defendant and Kim hurting him.
Kimberly Brigman testified at trial and described the sexual abuse of the three children. She said she first suspected the abuse when Child 2 requested a bedtime story defendant had told him about a little girl and her father, about them kissing and touching their private parts. When she confronted defendant about the story, he got ballistic. Some time later, she got up in the middle of the night and went to the room where Child 1 and Child 2 slept. Defendant was in the room with the boys, who were naked,and defendant was telling them to touch each other and pose in sexually suggestive positions. When defendant saw her, he forced her into the room and told her if she would be quiet, no one would get hurt. She then witnessed defendant make Child 2 touch defendant's erect penis and defendant ejaculate onto Child 2's stomach. She testified Child 2 said Mama, don't cry. It's okay. This way he won't hurt us. She testified she did not leave defendant because she was afraid of him; she said he had a very violent side and kept a gun in their bedroom.
Kimberly Brigman testified that [a]fter that night, [the abuse] started getting more in depth as far as [defendant] trying to penetrate the boys, more so with [Child 2]. She stated defendant would penetrate the boys in their behinds with fingers, toys, and his penis. Defendant once forced her to hold Child 2 down while defendant penetrated him with a finger. She also witnessed defendant perform oral sex on the boys and have the boys perform oral sex on him. She said she saw defendant abuse Child 2 more than ten times and [p]robably a little less with [Child 1]. She also saw defendant take pictures of Child 3 in his crib without any clothes on. Unlike Child 1 and Child 2, who are Kimberly Brigman's children by a former marriage, Child 3 is defendant's biological son. She found pictures defendant had hidden of defendant and the boys touching each other. She saw blood coming out of Child 2's anal area a few times and out of Child 1's anal area once. Kimberly Brigman denied that the boys ever licked her or that she had ever licked them. Dr. Rosalina Conroy, a pediatrician with a specialty in the diagnosis of sexual abuse injuries, performed a medical examination of the three children and testified as to her findings. She testified that when diagnosing sexual abuse, she considers, in addition to physical findings, the behavior of the child and any disclosures the child makes. She said the three boys were some of the most unruly, difficult children [she had] ever had to examine. Child 1 and Child 2 were so hyperactive Dr. Conroy could barely examine them or interview them during their examinations. She was, however, able to conduct a thorough examination of Child 3 and ask him if anything had happened to [his] bottom. Child 3 disclosed that defendant had put his hand in his bottom and it hurt and that defendant had similarly touched the other two boys.
Dr. Conroy testified that the physical findings in these children alone were very significant in her diagnosis of sexual abuse. During her examination of Child 3, Dr. Conroy observed evidence of trauma to the anal area and loosening of the muscle. She observed a loss of rugae, or the normal folds of the anal area. Where there should have been a wavy pattern, the skin had become smooth through repeated trauma, through friction. She also observed a triangular scar pointing into the anal opening, which she testified indicated repeated anal trauma, penetrating anal trauma, because the . . . apex of the scar was pointing into the anus, and it was thicker than just one episode of trauma, it was thicker, so that told me it was repeated. She testified that the condition of Child 3's anal area could have been caused by thepenetration of a penis, a hand, or a toy but probably not by a finger because of the extent of the damage. Dr. Conroy found similar scars in Child 1 and Child 2 and abnormal rugae in Child 2. She testified that penetration by either a finger, a penis, or a toy could have caused their scars and that the scars were consistent with repeated penetration.
Before trial, Dr. Conroy reviewed the following additional documents: (1) a statement by Kimberly Brigman, (2) notes taken by the foster parents about the children's statements and behavior, and (3) a psychologist's report concluding the children were suffering from post-traumatic stress disorder (PTSD). She testified these documents strengthened her opinion that the children had been sexually abused. The statement by Kimberly Brigman corroborated and explained the physical findings. PTSD is common in abused children, and a classic symptom of PTSD is flashbacks that keep coming in and disrupting their thoughts, disrupting their behavior. The foster parents' notes indicated the children would spontaneously describe abuse at times like driving out to get ice cream, which suggested the children were having PTSD flashbacks. The children also had sleep disturbances, another symptom of PTSD.
Dr. Kathleen Russo, a pediatrician also specializing in the diagnosis of sexual assault injuries in children, reviewed Dr. Conroy's findings, psychiatric records, interviews with Kimberly Brigman, and notes from the foster parents, and she testified to her conclusions at trial. Dr. Russo did not examine the boysherself. Like Dr. Conroy, Dr. Russo believed the physical findings indicated repeated penetrating trauma, and the descriptions of abuse by Kimberly Brigman and the children's disclosures to their foster parents supported the physical findings of repeated sexual abuse. When asked if she had an opinion to a reasonable degree of medical certainty as to whether or not these children had been repeatedly sexually penetrated, Dr. Russo stated: Yes, I would come to the conclusion that based on the history, the statements, the records, and the physical findings, that these children suffered sexual abuse by Mr. Richard Brigman.
Anthony Bolden was an inmate at Albemarle Correctional Facility with defendant in May, June, and July of 2002. He testified that he had a bisexual relationship with defendant while in prison and that defendant told him about certain sexual acts he committed with the children. One such act was called slick legs, where defendant would put [his] thing between they [sic] thighs and not penetrate, just hump. Mr. Bolden also testified defendant admitted showing the children pornographic movies and taking pictures of them naked.
Defendant's step-daughter and his daughter by another marriage both testified that defendant used to play pornographic movies for them and touch them between their legs with his hand and mouth. Defendant pled guilty to charges of molesting these two girls, and he was on probation for those offenses at the time of the offenses in the present case. After a report that defendant had contacted a twelve or thirteen year old girl over the Internet about havingsex, his probation officer conducted a search of his home. The officer did not find any photographs or pornography in the home or on his computer, but she did find a gun under his bed, for which his probation was revoked.
Defendant testified in his own defense at trial. He denied ever touching or taking sexual pictures of either of the three boys. He denied being a homosexual and having a sexual relationship with Anthony Bolden while in prison. He testified that Child 1 and Child 2's biological father used to take them every other weekend, and that Child 1 and Child 2 lived with their father for three months when defendant and Kimberly first moved in together.
Defendant's mother testified that when defendant and Kimberly were living with her, defendant was never alone with the boys. She also testified that defendant did not date men and that Child 2 had accused his biological father of sexual abuse in 2000. Social worker Bruce Titus testified that Child 2 once said his daddy had hurt him and pulled [his] weenie, but later said neither his daddy nor his mother nor defendant had hurt him. Mr. Titus said Child 2 changed his story several times. Child 2 also denied having been touched in his private areas to social worker Marcus Landy in November of 2001.
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