STATE OF NORTH CAROLINA
v. Forsyth County
No. 04CRS050501
DORINDO ESTUA ESQUIVEL-LOPEZ
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Celia Grasty Lata, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
HUNTER, Judge.
Dorindo Estua Esquivel-Lopez (“defendant”) was found guilty of
first degree sexual offense against a child under the age of
thirteen and of taking indecent liberties with a child. He was
sentenced to consecutive terms of imprisonment. For the reasons
stated herein, we find no error.
The victim identified in the indictment, who was age eight at
the time of trial, testified that when she was six years old,
defendant moved in with her mother. She, defendant, and her mother
all slept in the same room. Defendant and her mother slept on one
bed and she slept on a separate bed. At times when she was alone
in the bedroom with him, defendant inserted his private part into
her private part and her rear. Defendant kissed her private partand tried to insert his finger into her private part and her rear.
Defendant touched her private part with his tongue. She also saw
“[w]hite stuff” come out of defendant's private part and land on
her stomach. She eventually told her mother about the incidents.
Her mother took her to the Downtown Health Plaza, where she was
examined by two female physicians.
The victim's mother testified that the victim was born in July
1996. She separated from the victim's father and he moved back to
Mexico in 1999. Defendant, who was born on 27 October 1975, moved
in with her and the victim in 2001. One evening when she was four
months pregnant with her second child, who was born 24 December
2003, she observed defendant go into the bedroom, stay about twenty
minutes and come out. Suspicious, she went into the bedroom and
asked the victim to tell her what defendant “was doing to her.”
The victim told her that defendant had touched her private part.
She subsequently took her daughter to Downtown Health Plaza and to
Baptist Hospital for examinations.
Dr. Mary Hadley (“Dr. Hadley”), a pediatric physician employed
at the Downtown Health Center, a clinic owned by Baptist Hospital,
testified that the victim and her mother came to the center on 2
January 2004. The victim told her that her mother's boyfriend had
penetrated her genital and vaginal areas. Assisted by another
physician, she examined the victim's genitalia and observed that
her hymen was more red and less smooth than normal. She also
tested the victim for sexually transmitted diseases. The results
came back negative. Dr. Hadley referred the victim to Dr. SaraSinal (“Dr. Sinal”), a specialist in the diagnosis of sexual abuse,
for further examination.
Dr. Sinal, a professor of pediatrics at the Wake Forest
University School of Medicine, testified as an expert in the field
of pediatrics. On 22 March 2004, she examined the victim on
referral from the Downtown Health Plaza. She observed that the
introitus of the child's vagina was very red and irritated. She
also noted that the child's hymen had bumps at the four and eight
o'clock areas, which she determined were normal. The child also
leaked urine and emitted a slight mucoid discharge, which she did
not determine to be abnormal. Dr. Sinal also testified that
scrapes or bruises to the vagina and anus usually heal on their own
within a week or so, and that even “through-and-through” tears of
the hymen completely heal within six months such that no
abnormalities are seen.
Cynthia Stewart (“Stewart”), a social worker at Baptist
Hospital, testified as an expert in social work specializing in
family counseling of victims of child sexual abuse. She
interviewed the victim and her mother prior to the victim's
examination by Dr. Sinal. Using anatomical dolls, the victim told
Stewart that defendant put his “'body,'” pointing to the penis of
the male doll, into her vagina, pointing to the vagina of the
female doll, and into her anus, pointing to the anal area of the
female doll. When asked whether defendant made her do anything
with her mouth, she responded, “'[n]o. He just kissed me in the
mouth when I was sleeping.'” When asked whether defendant didanything with his mouth, she replied, pointing to the vagina and
anus of the female doll, that he put his tongue in her vagina and
anus.
Sergeant Natoshia James (“Sgt. James”) of the Winston-Salem
Police Department testified that she was assigned to investigate
the case on 3 December 2003. She interviewed the victim on 31
December 2003. The victim told Sgt. James that “'Dorindo'” put his
penis in her vagina, attempted to put his finger in her vagina and
butt, kissed her, and kissed her vagina. He would do these things
to her when her mother was not in the bedroom. When he did these
things to her, “white stuff” would come out of his penis and fall
on her body. He would wipe off the white stuff from her body.
These incidents stopped after she told her mother, who would not
allow her to be alone with defendant.
Defendant testified and denied engaging in any sexual activity
with the child.
Defendant brings forward two assignments of error.
First, he contends the trial court committed plain error by
not striking, sua sponte, the testimony of a social worker
regarding statements made to her by the victim which were not
corroborative of the victim's trial testimony. These statements
are: (1) that her mother did not want defendant to know where her
mother hid her newborn baby because “maybe he was going to do it to
her[,]” (2) that defendant did not say anything when her mother
asked him whether he did to the victim the things of which he had
been accused, and (3) that defendant touched her inappropriately onanother occasion while she was watching television, and that she
ran to her aunt's house to tell her about it.
Under the plain error standard of review, to award a new trial
the appellate court must be convinced that, absent the error, the
jury probably would have reached a different verdict. State v.
Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). We do not think
that it is probable that had the testimony in the case at bar been
excluded, a different outcome would have resulted. The victim
consistently related the same story to her mother, two examining
physicians on separate occasions, the social worker, the lead
investigating officer, and an investigator with the public
defender. While the medical examinations could not conclusively
establish sexual abuse, they showed that the victim's hymen was
more red and less smooth than normal. Moreover, the
inconsistencies in the statements are not significantly different
from the evidence offered at trial. For example, while the victim
may not have actually testified that her mother hid her newborn
baby from defendant out of fear he would sexually abuse the younger
child, a reasonable inference that she hid the baby for that reason
could be drawn from the mother's testimony. The mother testified
that after her daughter told her about the sexual abuse, she
refused to allow defendant to be alone in the bedroom with her
daughter and that she secured the bedroom to prevent his entry.
She hid her newborn baby in the closet because she did not want
defendant to touch the baby. Second, defendant contends the trial court erred by denying
his motion to continue so defendant could interview two expert
witnesses. Counsel for defendant argued to the trial court that
she needed the continuance so she could interview Dr. Sinal, who
had prepared a report she had received for the first time the
previous day, and to interview Stewart, who, according to the
physician's report, had been told by the victim that her “'Dad'”
perpetrated the sexual abuse.
A motion for a continuance is ordinarily addressed to the
sound discretion of the trial judge, whose ruling is not reversible
on appeal absent an abuse of discretion. State v. Smith, 310 N.C.
108, 111, 310 S.E.2d 320, 323 (1984). However, if the motion for
a continuance is grounded on a constitutional right, then the
motion presents a question of law which is fully reviewable on
appeal. Id. at 112, 310 S.E.2d at 323. The motion to continue
should be supported by affidavit or “some form of detailed proof
indicating sufficient grounds for further delay.” State v.
Searles, 304 N.C. 149, 155, 282 S.E.2d 430, 434 (1981). When a
defendant asserts that the trial court's failure to allow
additional time to investigate or prepare a defense constituted a
constitutional violation, he must show “how his case would have
been better prepared had the continuance been granted or that he
was materially prejudiced by the denial of his motion.” State v.
Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986).
Some of the factors considered by North
Carolina courts in determining whether a trial
court erred in denying a motion to continue
have included (1) the diligence of thedefendant in preparing for trial and
requesting the continuance, (2) the detail and
effort with which the defendant communicates
to the court the expected evidence or
testimony, (3) the materiality of the expected
evidence to the defendant's case, and (4) the
gravity of the harm defendant might suffer as
a result of a denial of the continuance.
State v. Barlowe, 157 N.C. App. 249, 254, 578 S.E.2d 660, 663
(2003).
Here, the record shows that defendant made the motion on 5 May
2005, five days before the trial was scheduled to begin on 10 May
2005. Defendant failed to show that he could not interview the
witnesses at any time during the two business days before the
commencement of trial, or that he had even attempted to contact the
witnesses. Defendant also failed to provide sufficient proof that
he would obtain material evidence to aid in his defense. Defendant
posited to the trial court that the report could lead to a possible
defense that the victim's natural father, not defendant, committed
the acts upon her, because she used the term “Dad” to the physician
in identifying the perpetrator, or that through “transference” the
victim attributed acts perpetrated by her natural father to
defendant. However, defendant failed to present any tangible
evidence to support this theory.
Finally, defendant has failed to show he was prejudiced by the
denial of the continuance. Stewart testified that when she asked
the victim to identify the person whom she called “Dad,” she
stated, “Dorindo.” The victim also stated to her, “'[m]y real dad
didn't do that.'” Dr. Sinal never testified that the victim told
her that “Dad” perpetrated any sexual acts. We conclude the trial court did not err by denying the motion
for a continuance.
We hold defendant received a fair trial, free of prejudicial
error.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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