802 S.E.2d 737 (N.C.App. 2017), COA16-778, State v. Dye

Docket Nº:COA16-778
Citation:802 S.E.2d 737
Opinion Judge:McGEE, Chief Judge.
Attorney:Attorney General Joshua H. Stein, by Assistant Attorney General Margaret A. Force, for the State. Anne Bleyman for Defendant.
Judge Panel:Judges HUNTER, JR. and DAVIS concur. Judges HUNTER, JR. and DAVIS concur.
Case Date:June 20, 2017
Court:Court of Appeals of North Carolina

Page 737

802 S.E.2d 737 (N.C.App. 2017)




No. COA16-778

Court of Appeals of North Carolina

June 20, 2017

Heard in the Court of Appeals, February 20, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Margaret A. Force, for the State.

Anne Bleyman for Defendant.

Judges HUNTER, JR. and DAVIS concur.


Page 738

Appeal by Defendant from judgment entered 25 February 2016 by Judge William H. Coward in Superior Court, Mitchell County No. 14 CRS 50381.

McGEE, Chief Judge.

Jeffery L. Dye, Jr. (" Defendant" ) appeals from judgment entered after a jury found him guilty of statutory rape. We find no error in Defendant's trial, but vacate the order imposing satellite-based monitoring for a period of thirty years due to a violation of N.C. Gen. Stat. § 14-208.40A.

I. Background

The State's evidence at trial tended to show the following: Defendant lived with his fiancé e, Heather Townsend (" Townsend" ), in a mobile home park in Mitchell County, North Carolina, in June 2013. Around that time, Defendant's cousin, B.G., began living with Misty Briggs (" Briggs" ), B.G.'s aunt and Defendant's mother. At the times relevant to the present case, Defendant was twenty-three years old and B.G. was fourteen years old.

Shortly after B.G. began living with Briggs, Defendant called to ask if B.G. would come to his mobile home to wash the dishes and babysit two of his children. When B.G. arrived, she assisted Defendant in washing the dishes and putting the children to bed. After the children were asleep, Defendant began telling B.G. about an argument he had with Townsend earlier in the day, and B.G. listened " because no one else was there for [Defendant]." While telling B.G. about the argument, Defendant asked B.G. " if [she] wanted to have sex with him, and [B.G.] told him no at first." As B.G. explained at trial: Despite Defendant's warning, B.G. testified she told Briggs that Defendant had raped her, but Briggs did not believe the accusation. B.G. eventually repeated the allegation to her school counselor in August 2013, when school was back in session. You know, [I told Defendant]. . . I don't want to have sex with you, this is wrong, and I was like if your girlfriend finds out this is not going to look good at all, you know. And so [Defendant] was undressing me, you know, like, he told -- well, he told me to go put a bathing suit on and I was like sure, you know, okay. I put a bathing suit on and we were standing in the room, in his back bedroom, and yeah that's pretty much it. . . . [Defendant] undressed me from there, and then that's when [Defendant] raped me.

Upon further questioning, B.G. stated Defendant had engaged in vaginal intercourse with her. The encounter continued for approximately an hour and a half, until Townsend returned to the mobile home. At that point, Defendant stopped having sex with B.G., gave her clothing to wear, and told her to not tell anyone because " [Defendant] didn't want to go into jail or . . . get in any trouble with the law[.]"

B.G. was examined by Dr. Kelly Rothe (" Dr. Rothe" ) on 27 March 2014. At trial, Dr. Rothe was accepted, without objection, as an expert in child sexual assault and in child medical examinations. Dr. Rothe began B.G.'s medical examination by asking B.G. a series of questions, and then performed a " head to toe" physical examination, including an internal vaginal examination. Dr. Rothe testified, without objection, that the examination revealed that the " posterior rim" of B.G.'s hymen was " thinned, which would have been consistent with a vaginal penetration." Elaborating on the examination, again without objection, Dr. Rothe testified that when she examined the posterior rim of B.G.'s hymen, it was " thinned," and " was, in fact, absent in what we call that 5 to 7 o'clock area, and that is the area that is most suspicious for vaginal penetration in child abuse." After discussing her findings, the following colloquy between Dr. Rothe and the prosecutor occurred:

Page 739 [Prosecutor:] . . . [A]fter conducting the investigation, Dr. Roth[e], did you form any opinion regarding the possibility of sexual abuse?

[Dr. Rothe:] Right, so, like I said that having an absent hymen in that section of posterior rim is very suspicious for sexual abuse. Just for your background, the only time that as a clinical provider we can say sexual abuse happened is if we see that hymen within three days of the sexual abuse, and then we also track it [sic] healing. That's why the nomenclature becomes difficult because the hymen, like the inside of the mouth, heals very quickly. But [B.G.'s] exam with an absent posterior rim was very suspicious for sexual abuse and with the disclosure of sexual abuse --

Defendant's counsel then objected and argued that Dr. Rothe was able to " say . . . that [her] findings support or are suspicious of, I think is what [Dr. Rothe] said, sexual abuse" but was not able to " give an opinion about what [B.G.] said to [Dr. Rothe]." After a protracted discussion with the prosecutor and Defendant's counsel, the trial court stated that Dr. Rothe " should not vouch for [B.G.'s] credibility."

Upon further questioning, Dr. Rothe twice reiterated that the results of the examination were " suspicious for vaginal penetration" due to the absence of the posterior rim of B.G.'s hymen. On cross-examination, Dr. Rothe admitted the results of her examination of B.G. were " suspicious but not conclusive" for vaginal penetration and that, without a " baseline" examination of B.G. conducted before the alleged abuse, it was " hard to tell" whether the trauma observed in the examination was " normal to [B.G.] or not."

Defendant was convicted of statutory rape and sentenced to a term of 254 to 365 months in prison. After sentencing Defendant, the trial court considered whether satellite-based monitoring (" SBM" ) was appropriate in an SBM hearing. The prosecutor presented the results of Defendant's Static-99 examination that indicated a risk assessment of four points, placing Defendant in a " Moderate-High" risk category. The trial court found that: (1) the offense was a sexually violent offense pursuant to N.C. Gen. Stat. § 14-208.6(5); (2) Defendant " has not been classified as a sexually violent predator; " (3) Defendant is not a recidivist; (4) the offense is not an aggravated offense; and (5) the offense did involve the physical, mental, or sexual abuse of a minor.

Based upon these findings, the trial court ordered Defendant to register as a sex offender for a period of thirty years. The trial court then asked the prosecutor if the decision to order Defendant to enroll in satellite-based monitoring was " in [the trial court's] discretion . . . [b]ecause of the score on the Static-99," and the prosecutor indicated that it was. After brief arguments from both the State and Defendant, the trial court ordered Defendant to enroll in satellite-based monitoring for the duration of the thirty year period that Defendant was to be registered as a sex offender. The trial court memorialized these findings as...

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