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1. Appeal and Error--right to appeal--aggrieved party
The trial court did not err in a double indecent liberties with a child and statutory sex offense case by denying defendant's motion to dismiss Duke University Health Systems' (DUHS) appeal, because: (1) DUHS is an aggrieved party and is asserting its legal rights which have been directly affected by the trial court's order; and (2) the trial court's order effectively requires DUHS to disclose information concerning a research subject's privacy which it is obligated, under the Certificate of Confidentiality and federal statutes, to protect.
2. Discovery-_privileged communications--sealed documents--in camera inspection
Although the trial court did not err in a double indecent liberties with a child and statutory sex offense case by refusing to conduct an in camera inspection of sealed documents that defendant wanted to use to impeach the credibility of a witness by showing she made statements in project records that were at odds with her trial testimony or failed to make statements which would have shown abuse at the hands of defendant, the trial court erred by ordering their production to defense counsel in its order of 3 May 2005 and the order is vacated, because: (1) defendant was not entitled to production or in camera review of the documents when defendant failed to satisfy the threshold requirement of materiality; (2) although a witness may be impeached on cross-examination regarding her prior inconsistent statements, her answers are deemed conclusive and may not be attacked with direct evidence; and (3) the witness was only one of three N.C.G.S. § 8C-1, Rule 404(b) witnesses who provided 404(b) testimony, she was subject to cross-examination, and considered in that context, the contents of the records are at best tangential to the aggregate case and cannot meet even the relatively permissive Phillips criteria for materiality let alone the more stringent Tirado test.
3. Sexual Offenses--statutory sex offense--sufficiency of short-form indictment
The trial court did not err by concluding it had jurisdiction to try defendant even though it used a short-form indictment for the charge of statutory sex offense where the victim is either 13, 14, or 15 years old, because: (1) the Court of Appeals has specifically held that N.C.G.S. § 15- 144.2(a) permits a short-form indictment for sexual offenses committed against persons 13, 14, or 15 years old; and (2) the indictment complied with the requirements of N.C.G.S. § 15-144.2(a) and was sufficient to put defendant on notice of the crime of which he was accused.
4. Evidence--prior crimes or bad acts--testimony about prior abuse_-modus operandi--
plan_-absence of mistake--absence of accident
The trial court did not err in a double indecent liberties with a child and statutory sex offense case by admitting the testimony of three victims regarding prior acts of abuse by defendant, because: (1) our Supreme Court has been liberal in allowing evidence of similar offenses in trials on sexual crime charges; (2) all three of the witnesses were young female relatives who were in the care of defendant at the time of the alleged abuse and each testified to similar acts by defendant in similar locations followed by defendant's instruction to keep the encounters a secret; and (3) the trial court instructed the jury that the testimony was received solely for the purpose of showing that there existed in the mind of defendant a plan, scheme orsystem, or design involving the crimes charged in the case, or absence of mistake and absence of accident.
Roy A. Cooper, III, Attorney General, by Elizabeth L. Oxley,
Assistant Attorney General, for the State.
Moore & Van Allen PLLC, by William E. Freeman and Michael J. Byrne, for appellant Duke University Health Systems.
Robert W. Ewing for defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged with two counts of indecent liberties with a child, F.A., in violation of N.C.G.S. § 14-202.1 and one count of statutory sex offense in violation of N.C.G.S. § 14-27.7A. Defendant entered pleas of not guilty.
Prior to trial, defendant's trial counsel issued a subpoena to Duke University Health Systems (DUHS) seeking any and all documents from the Great Smoky Mountain Study recording, reflecting or referencing any statement by [M.B.] . . . mentioning or describing any abuse of her. DUHS moved for a protective order, contending that the 29 July order was contrary to the Certificate of Confidentiality issued to researchers pursuant to federal law. Defendant asserted that M.B. was expected to be called by the State to offer evidence pursuant to N.C.G.S. 8C-1, Rule 404(b) thatdefendant had sexually abused her in the past and that the information contained in the records was necessary for impeachment purposes. On 18 August 2004, the trial court vacated its 29 July 2004 order, granted DUHS's motion for a protective order, and required DUHS to maintain a sealed copy of the records referred to in the Court's July 29, 2004 Order until the final adjudication of all issues in this case, including any appeals or until further order of this court.
At defendant's trial, the evidence tended to show that F.A. first met defendant when she was eight or nine years old. F.A. is the niece of defendant's daughter-in-law, Laura Bradley. In August 2003, F.A. went with Laura Bradley to prepare for a surprise party for defendant's wife. F.A. testified that she enjoyed going to defendant's house and that they treated her like family. During the party preparations, defendant and F.A. went to the grocery store to purchase additional food. F.A. testified that on the way to the store defendant touched her on the outside of my clothes on my privates and put his hand inside my panties on my vagina . . . . He put his finger inside. Not all the way, but a little bit. He also touched her breasts and on her butt under her clothes. She further testified that defendant told her that it was their secret and not to tell anyone. She eventually told her school counselor and then talked to her grandparents, and police. These witnesses corroborated her testimony.
The State also offered the testimony of K.C., F.C., and M.B. with respect to incidents in which defendant had allegedlycommitted similar acts upon them. Thirteen-year-old K.C. testified that defendant is her mother's stepfather, that when she was five or six, once or twice he had put his hand in her underwear and touched her butt, and on another occasion, he rubbed [her] butt for [a] couple of minutes. Once, when tying her shoe, he bent down to pick up my foot and he stuck it on his private part; when she moved her foot, he moved it back and told her not to tell, that it was our secret. When defendant's granddaughter, Melinda Bradley, was discussing F.A.'s accusations with K.C. and other family members, K.C. told Melinda what defendant had done to her. According to K.C.'s testimony, Melinda responded by telling her not to tell or else we could get [defendant] in a lot of trouble. The next day, K.C.'s mother told her about F.A.'s accusations, and her mother asked K.C. if defendant had done anything to me, and I told her, Yeah. K.C. later made a statement to police.
F.C. testified that K.C. is her daughter, and corroborated K.C.'s statements. She also testified that defendant is her stepfather, who cared for her after her mother died, from age six until sixteen, when she left home to marry her husband. She testified that she remembered defendant sitting her in his lap and touching her vagina while he was driving his truck. She also recalled that when she was ten or eleven, defendant carried her from her bed on nights when her stepmother was out of town and touched her with his hands.
M.B., who is Melinda Bradley's sister, testified that defendant is her grandfather. M.B., her sisters, and their motherlived with defendant [f]or the most part as I was growing up, except for a period when she was younger than ten years old. At that time, M.B. told her mother that defendant was fondling my breasts, and the Department of Social Services said it was best that they not live with him. M.B. further testified that her mother did not believe her allegations, and, after a couple of years, they moved back in with her grandfather. Once they returned to defendant's house, defendant had M.B. perform oral sex on him and took her on car rides where he would fondle my breasts and put his hand on my vagina. He also once pulled down both her pants and his pants and put his part between my legs. As she got older, the abuse lessened.
Defendant testified on his own behalf and denied all of the allegations, as did other family members and neighbors, who attested to defendant's law-abiding nature and general good character. These witnesses also expressed their doubts about the credibility of the State's witnesses. Melinda Bradley testified that her grandfather was truthful and law-abiding, and she denied any conversation with K.C. about defendant.
The jury convicted defendant of two counts of taking indecent liberties with a child, and one count of statutory sexual offense against a victim who was 13 years old at the time of the offense. Defendant was sentenced to 240 months to 297 months for the sexual offense charge and two consecutive sentences of 16 months to 20 months for the indecent liberties charges. Defendant appealed. Defendant's appellate counsel moved that the documents maintained by DUHS pursuant to the trial court's 29 July 2004 order, relating to any statements made by M.B. and sealed pursuant to the court's order, be made available to ensure a full and fair appellate review. By order dated 3 May 2005, the trial court ordered DUHS to produce the records for defendant's appellate counsel for the purpose of determining whether any error should be assigned premised on their contents. Dissemination of the contents of the documents to anyone other than counsel for the parties was prohibited. DUHS appealed from the * order requiring disclosure.
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