State Of North Carolina v. Lepage, COA09-842.

• Decision Date: 18 May 2010
• Docket Number: No. COA09-842.,COA09-842.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolinav.Douglas Charles LEPAGE.

693 S.E.2d 157

STATE of North Carolinav.Douglas Charles LEPAGE.

No. COA09-842.

Court of Appeals of North Carolina.

May 18, 2010.

COPYRIGHT MATERIAL OMITTED

Appeal by Defendant from judgments entered 3 October 2008 by Judge C. Philip Ginn in Superior Court, Macon County. Heard in the Court of Appeals 27 January 2010.

Attorney General Roy Cooper, by Assistant Attorney General Kevin Anderson, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for Defendant-Appellant.

McGEE, Judge.

Douglas Charles LePage (Defendant) was indicted on 2 April 2007 for statutory sex offense, delivering a controlled substance to a minor, indecent liberties with a minor, two counts of contaminating food with a controlled substance, and possessing a controlled substance with the intent to deliver. A jury found Defendant guilty as charged. Defendant was sentenced to consecutive sentences of 238 to 295 months, 64 to 86 months, 16 to 20 months, and 6 to 8 months, in prison. Defendant appeals.

The evidence at trial tended to show that Defendant was acquainted with JBS, the fourteen-year-old daughter of a friend. Defendant and his wife, Karen Smith (Smith), asked JBS's parents if JBS could spend the night of 6 January 2007 at their home. Defendant intended for JBS to help him make a collage for Smith who was depressed because her daughter was not home for the holidays. JBS's parents agreed.

Defendant picked JBS up at 6:00 p.m. on 6 January 2007 and brought her to his house. Defendant, Smith, and JBS ate dinner together. Smith left the house for an 8:00 p.m. meeting, and Defendant and JBS worked on the collage. Smith returned to the house at 9:15 p.m. Defendant and JBS gave Smith the collage, and the three then watched a movie in the master bedroom.

At trial, JBS testified that Defendant served Smith and JBS portions of a banana cream pie around 10:00 p.m. JBS did not want to eat the pie, but Defendant repeatedly encouraged her to do so. JBS noticed that one bite of the pie was “very, very salty[,]” though the rest of her portion was very sweet. Shortly after eating, Smith and JBS fell asleep. JBS awoke during the movie and went to the guest bedroom. JBS said it was unusual for her to fall asleep so early in the evening.

Defendant came into the guest bedroom at some point during the night and told JBS that Smith's snoring was keeping him awake. He told JBS he usually came into the guest bedroom if Smith's snoring was bothering him. JBS offered to move to the other guest bedroom, but Defendant said, “[n]o, no, it's okay[.]” Defendant kissed JBS on the mouth and told her she was “a good kisser.”

JBS “remember[ed] a hand going down into [her] pants and then [she] felt something weird going up into [her] body.” JBS felt “something funky that [she] had never felt before,” and felt Defendant's hand “on [her] skin.” JBS then “blacked out” and she remembered nothing else that occurred that evening. She was not aware of anything being wrong with her private area before going to Defendant's house for the night.

JBS's father testified that JBS was supposed to return home by 9:00 a.m. on 7 January 2007. JBS's father reached Defendant by telephone and Defendant told him that Smith was sick. JBS's father went to Defendant's house to pick up JBS. When he picked up JBS, she was lethargic and her speech was slurred. She was unable to tie her own shoes and could not control her movements. While in the car, JBS was “blurting ... statements out.” She said, “[h]e kissed me [,]” “[h]is tongue was so big[,]” and “I felt his hand.” JBS's father then took her to the Macon County Sheriff's office.

Macon County Sheriff Robert Holland (Sheriff Holland) testified that JBS stated that she went to sleep in the guest room and woke up with Defendant lying in bed next to her. Defendant rolled over to her side of the bed and “started putting his hand around” her vaginal area and “would rub fast and quick, going back and forth.” JBS told Sheriff Holland that “she [was] not sure what sex is, but she thinks that they had sex .... because their tongues were in each other[.]” Sheriff Holland arranged an appointment for JBS later that day with Dr. Jennifer Brown (Dr. Brown), a pediatrician at “Kid's Place, [the] local child advocacy center.”

Dr. Brown testified that she performed an evaluation on JBS on 7 January 2007 and found that JBS was “clearly impaired.” JBS had abrasions and swelling in and around her vaginal and anal areas. There was a “crusty discharge” on her pubic hair, and a fresh laceration in JBS's posterior fourchette. The area around her anus was red and there was a new laceration there as well. JBS had three linear marks on her right arm, a puncture mark on the inside of her left arm, a bruise on her neck, and markings on her breasts. JBS was unsteady, her speech was slurred, and she appeared to be intoxicated.

JBS told Dr. Brown that one bite of the pie had tasted differently from the rest of the pie; that Defendant had gotten into bed with her, kissed her, and rubbed her vaginal area and breasts. Dr. Brown opined that JBS's “posterior fourchette and anal lacerations .... [were] consistent with [JBS's] history and with penetrating injury.” Dr. Brown testified that, during her examination of JBS' genital area, JBS had fallen asleep. When Dr. Brown touched JBS' genital region, JBS cried out in pain, despite being asleep.

Smith testified that she fell asleep during the movie and slept until 2:00 p.m. the next day. When Smith awoke the next day, she felt “[w]oozy [and] nauseous[,]” and she vomited. A friend came to Smith's house and took her to the hospital, where Smith displayed symptoms similar to those of JBS. Smith returned home on 8 January 2007 and asked Defendant what had happened. Defendant at first blamed Smith's symptoms on the dinner they had eaten the prior evening, but then told Smith he had put drugs in the pie so that he and Smith could have “a relaxing sexual experience.” Defendant said that JBS must have gotten the drugged pie by mistake. Smith also testified that Defendant had received a package containing “[c]lonazepam or pine, one of the two” a few days earlier.

Smith told Defendant to leave the house. Defendant left and went to visit his female cousin, L.E., in Ohio. Defendant then went to Miami and returned to North Carolina near the end of January 2007. Smith also testified that, after returning home from the hospital, she found sex toys in a bag under a bed in her house. Smith had never seen these implements before and thought the bag and the toys had “left with [Defendant] when he left [for Ohio].”

Sheriff Holland first questioned Defendant on 7 January 2007. Sheriff Holland testified that Defendant stated that he sometimes slept in the guest bedroom and masturbated there. Sheriff Holland also interviewed Defendant on 29 January 2007. Defendant admitted to Sheriff Holland that he had put medication in the pie, and had kissed JBS and touched her breasts. Defendant said the use of medication prior to sexual activities was common between him and Smith. Defendant told Sheriff Holland that Smith did not want to know the medication was in the pie on 6 January 2007, and that he did not purposefully drug JBS.

Special Agent Aaron Joncich of the State Bureau of Investigation (Agent Joncich) testified that he tested samples of JBS's urine and the “test indicated the presence of a class of drugs called [b]enzodiazepines.” Agent Joncich testified that JBS's urine contained a “metabolite of Clonazepam [,]” a drug used as a sleep aid which can cause “anterograde amnesia[.]” He testified that anterograde amnesia “means after you take that drug you forget things during the activity of that drug in your body.” Davis Speed, a medical technologist at Angel Medical Center, testified that he also found the presence of benzodiazepines in Smith's urine.

Defendant presented evidence through his own testimony. He testified that he placed “benzodiazepine” in the banana cream pie, but only drugged the piece he served to Smith. When JBS went to the guest bedroom to change for bed, he followed her. When Defendant and JBS were making the collage earlier in the evening, JBS had told Defendant that she was worried she was not a good kisser. Defendant kissed JBS in the guest bedroom and told her she was a good kisser. Defendant stayed in the room for less than ten minutes and then went back to the master bedroom where they finished watching the movie and Defendant fell asleep next to Smith. Defendant did not leave the master bedroom again until morning. Defendant also denied having put his hand in JBS's pants and testified that, if JBS was injured, the injuries occurred before she came to his house.

404(b) Evidence

At trial, the State presented the following evidence pursuant to N.C. Gen.Stat. § 8C-1 Rule, 404(b). First, the trial court offered the testimony of B.E. B.E. testified that in July 2006, when she was sixteen years old, she met Defendant at an Alcoholics Anonymous meeting. Within a few months of becoming friends with Defendant, Defendant began to discuss his sexual problems with B.E. Defendant told her that he could no longer have sex because he had injected drugs into his groin. However, Defendant told B.E. that he could “make [B.E.] feel like a woman, meaning perform oral sex [on her], touch [her], protrude [sic] [her] in other ways.” Defendant told B.E. that he did not have a problem with her age because “it's legal in North Carolina.” B.E. ended her relationship with Defendant because she “got scared.” Defendant contends that the “trial court erred in admitting this evidence because it was not sufficiently similar to the charged offenses.”

The State also presented a videotape displaying sexual activity involving Defendant and his female cousin, L.E. The video was taken during the time Defendant left his home and went to stay with L.E. in Ohio. In the video, Defendant can be seen inserting objects into L.E.'s...