In re L.M.

• Decision Date: 03 December 2019
• Docket Number: No. COA18-790,COA18-790
• Citation: 835 S.E.2d 63 (Table)
• Parties: In the MATTER OF: L.M.
• Court: North Carolina Court of Appeals

835 S.E.2d 63 (Table)

In the MATTER OF: L.M.

No. COA18-790

Court of Appeals of North Carolina.

Filed: December 3, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H. Love and Assistant Appellate Defender Amanda S. Zimmer, for Juvenile-Appellant.

McGEE, Chief Judge.

I. Factual and Procedural History

The State filed juvenile petitions on 8 July 2016 alleging L.M. (also "Juvenile") was delinquent for committing second-degree forcible rape, second-degree forcible sexual offense, and misdemeanor obstruction of justice. In an adjudication hearing on 1 November 2017 in Sampson County District Court, the trial court adjudicated L.M. delinquent for second-degree forcible sexual offense and obstruction of justice, while finding him not delinquent for second-degree forcible rape. The dispositional hearing was continued and the case was subsequently transferred to Johnston County District Court. At the 19 February 2018 dispositional hearing, Judge Caron Stewart entered a Level 2 Disposition and placed L.M. on probation for 12 months. At the hearing, L.M. gave oral notice of appeal from the adjudication and disposition orders.

The evidence presented at trial tended to show that, in March 2016, L.M. and Ashley¹ had been in a dating relationship for three or four months. L.M. was 13 years old and Ashley was 15 years old and both attended Midway Middle School. Ashley lived with her godmother, as she did not have a good relationship with her mother at the time. The godmother’s daughter also lived in the household. During the time they were dating, Ashley and L.M. had vaginal sexual intercourse at L.M.’s residence. They did not have anal sexual intercourse before 22 March 2016.

On 22 March 2016, Ashley accepted L.M.’s invitation to come over to his house. Ashley testified she took the bus and got off at a stop near L.M.’s house instead of one near her own. L.M. met her at the bus stop and they walked together to his house. L.M.’s cousin and brother were playing video games in the house. Ashley went to L.M.’s bedroom and laid down on the bed. L.M. entered the room and shut the door. Ashley was on her side, facing the wall. L.M. laid down beside Ashley, facing her. Ashley testified that, when L.M. started kissing her neck, she "told him to stop because [she] didn’t want to do that." Ashley testified she did not kiss or touch L.M.

Ashley testified L.M. then "got on top of [her]" and "put his penis in [her] vagina." Ashley testified she "told him to stop" and that "she didn’t want to." She testified L.M. then "turned [her]" and "[L.M.] put his penis in ... [her] anal [ (sic) ]." Ashley testified that, in order to turn her over, L.M. placed "his hands on [her] waist" and turned her so "[she] was facedown at the time." She further testified that, "[a]t that point I was telling him to stop, get off of me because it was hurting, and I was trying to tell him I don’t want to do that." Ashley stated L.M. did not say anything in response and that he did not stop until he finished. When asked if L.M. stopped "right when you told him to[,]" Ashley said no. She testified the anal sexual intercourse hurt. Furthermore, she testified she specifically told him not to penetrate her anally "because [she] do[es]n’t do that."

Ashley testified that after L.M. was done, "[h]e pulled his pants up or whatever and left[,]" and "went to play basketball[.]" Ashley exited the room and did not see anyone else inside the house. At that point, she called her mother. Ashley testified she told her mother "a lie"—not "a lie about the rape," but "a different story of what happened because [she] knew [her mother] was going to be mad." She asked her mother to pick her up, as she was ready to go and she had a therapy session to attend with her mother. Ashley testified she was crying while on the phone with her mother and that she was in pain at the time—specifically she testified her "anal" was "hurting real bad." She testified she then walked down a road away from the trailer park. At one point, the call with her mother was dropped. She had a phone conversation with her godmother after calling her mother. Ashley’s godmother came to pick her up. Her godmother asked what was wrong. Ashley was crying and did not respond at first. She then told her godmother she was raped. Ashley testified she did not tell her godmother that it was L.M. who raped her, because "[she] knew [her godmother] was going to be mad[,] [a]nd at the time [she] didn’t want to get [L.M.] in trouble because he was [her] boyfriend." Ashley acknowledged that, at the time, she "made a statement that three strange black male subjects in a white vehicle took [her] to a white house and raped [her.]"

Ashley testified that as they were driving away from the trailer park, Ashley’s godmother flagged down a police offer. Ashley testified she "told a lie [to the police officer] because [she] didn’t want to get [L.M.] in trouble." She did not recall if she told the officer the same story she told her godmother. Ashley’s mother and counselor arrived and they all went to the hospital along with her godmother and her godmother’s daughter. The hospital staff administered a rape kit. Ashley testified that, when she took her pants off for the kit, she saw blood "on the back of [her] stretch pants" and on her "an[us.]" While at the hospital, Ashley’s mother and the police officer asked her "to tell the truth" because her earlier story "d[id]n’t add up." Ashley testified that at that point she told them "the truth." She agreed with counsel that "at that point [she] told the police officer and [her] mother that [L.M.] is the one ... that had done this to [her]." Ashley also testified that she was bleeding from her anus and experienced pain for three weeks afterwards, that she "couldn’t use the bathroom or anything[,]" that she "couldn’t hardly sit[,]" and that she "was walking funny" during that time. Treating her injury required three further medical appointments with a specialist.

Shannon Barber ("Ms. Barber"), Director of the Sampson County Child Advocacy Center, conducted a forensic interview of Ashley at the Center on 7 April 2016. Detective Christopher Godwin ("Detective Godwin") of the Sampson County Sheriff’s Department observed the interview through a two-way mirror. Ms. Barber testified that, during this interview, Ashley said that on 22 March 2016, she "got off the bus at the trailer park" with some girlfriends, who went to their own homes, and with "[L.M.] and two other males." Ashley went with L.M. and the other males to L.M.’s house. Ms. Barber said Ashley told her that L.M. and the two other males played video games while she went to lie down on L.M.’s bed and L.M. later entered the room. Ms. Barber testified about what Ashley said occurred:

[Ashley] said [L.M.] started kissing her on the neck. He rolled her over and she told him to stop, she did not want to do that. And she said at that point he pulled her pants down and stuck his penis in her butt and began having sex with her.

She said that she continued to tell him to stop and was trying to push him away. She described to me he used his arm to hold her top part of her body down and used his other hand to hold her leg up. She told me she was not sure if he stuck his penis in her vagina that day, but when he was done, he got up. She said she felt very wet in that area. And he told her he was going outside to play basketball.

Ms. Barber testified that Ashley told her that she then got up and got dressed, went outside to get her cell phone, reentered the house, locked the door, and called her mother and asked her repeatedly to come get her, although she did not tell her mother where she was. Ashley told Ms. Barber she then walked down the road, when her godmother came by in her car, and Ashley told her godmother she was raped. Ashley told her she did not tell the truth about who the perpetrator was for two reasons: (1) "she did not want to get [L.M.] in trouble, and" (2) "her godmo[ther] was letting her go to this trailer park and she knew her mo[ther] would not allow that and so she did not want to cause any type of ... ‘mess.’ "

On 14 April 2016, L.M. went in to the Sampson County Sheriff’s Office and was interviewed by Detective Christopher Godwin regarding Ashley’s accusation against him. Detective Godwin testified that L.M. told him that, on 22 March, Ashley initiated consensual vaginal sexual intercourse with him, and that they had had vaginal sex about five times since they started dating. L.M. at first denied having anal sex with Ashley, telling Detective Godwin "I don’t do that." Detective Godwin then informed L.M. that a sexual assault kit had been collected at the hospital and asked him "if it would surprise him if they found semen in [Ashley’s] butt." In response, L.M. said he and Ashley had anal sexual intercourse the third time they had sex. Detective Godwin asked whether they had anal sexual intercourse on 22 March 2016. Detective Godwin testified L.M. "said he couldn’t remember because it had been so long ago. However, eventually, [L.M.] said he put his penis in her vagina and butt that time as well." When asked if Ashley "had told him ‘no’ that day[,]" L.M. did not answer.

At the delinquency hearing, L.M. testified that he and Ashley met on the bus and began dating. He also testified that, as of 22 March 2016, he and Ashley had had sexual intercourse five times previously. L.M. testified that, during a conversation on the application Facetime, Ashley "had brought up a subject about having sex, and she asked me did I like—have I ever, like, have—stick it in a butt." Asked what he said in response, L.M. said "we should try it." L.M. testified Ashley’s godmother overhead their conversation and said "y’all shouldn’t be talking about that."

On 22 March 2016, L.M. did not go to school "because [he] was sick." L.M. met Ashley...