State v. Coffey, No. COA19-445

• Docket Nº: No. COA19-445
• Citation: 853 S.E.2d 469
• Case Date: December 15, 2020
• Court: Court of Appeal of North Carolina (US)

853 S.E.2d 469

STATE of North Carolina
v.
William Brandon COFFEY

No. COA19-445

Court of Appeals of North Carolina.

Filed: December 15, 2020

Attorney General Joshua H. Stein, by Assistant Attorney Kathryn L. Pomeroy-Carter, for the State

Joseph P. Lattimore, for defendant-appellant.

BRYANT, Judge.

853 S.E.2d 473

On 28 September 2015, defendant William Brandon Coffey was indicted on two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts taking indecent liberties with a child. At the time of the incident, the victim, Maya¹ , was six years old, and defendant was thirty-three years old. The matter was tried before the Honorable A. Graham Shirley, Judge presiding.

At trial, the State's evidence tended to show that on 1 September 2015, Maya went with her father to choir practice at their church. Upon arrival, Maya went to the kitchen area to play with the other children. At the same time, the church was also hosting a men's fellowship meeting, which was attended by defendant and his father. The church's video surveillance showed defendant left the men's fellowship meeting two times—the first time for about two minutes, and the next time for about eight minutes. Defendant saw Maya walking to the bathroom and extended his arms to hug and pick her up. Maya thought defendant was a friend of her father's. Another member of the church testified he saw defendant extend his arms toward Maya, pick her up, and hug her. The member testified that he was concerned, stating he "just [ ] had a feeling something didn't look right." He sought out the assistant pastor to tell him what he saw and asked him if defendant was related to Maya. The assistant pastor didn't know but promised to look into it. Meanwhile, defendant had returned to the meeting but left a second time for much longer.

During that time, defendant saw Maya at the water fountain and told her to take her pants down. After "kissing [her] butt," defendant took Maya into the men's bathroom and told her to take off her pants, underwear, and shirt. Maya testified that defendant "used the part he pees with to [penetrate] the part [she] pee[s] with" and then defendant told her to roll over on her stomach and defendant "put the part that [he] pees with on [Maya's] butt." Maya said she felt poop coming out, and she also peed on the floor. Maya tried to yell for help, but defendant covered her mouth and nose and told her to "hold on just a little bit longer." Afterwards, defendant "wiped the part he pees with" and left the bathroom. Maya told her father that she had peed on herself. After leaving the church, Maya told her father that defendant had taken her to the bathroom and tried to explain what defendant had done to her. Maya's father immediately returned to the church and talked to the pastor about what had happened. The pastor then called the police.

Maya was taken to the hospital, where a standard rape examination was conducted. A nurse collected vaginal, rectal, and oral smears as well as Maya's clothes and underwear. Maya was also taken to SafeChild, a specialized child advocacy center for abused children. While there, she had a forensic interview, which was videotaped and later introduced into evidence at trial without objection. The church member, who had seen defendant pick up and hug Maya, was asked to identify the man he saw in a photo lineup. The church member identified defendant with 100 percent certainty. Defendant was then arrested and advised of his rights. A search warrant was served to obtain a buccal swab of the inside of defendant's mouth. The swab was sent to the North Carolina State Crime Laboratory and tested, using YSTR DNA ("DNA"), against a semen sample found on Maya's underwear.² The DNA profile from the semen on Maya's underwear matched the DNA profile from defendant's buccal swab. At the close of the State's case, the only evidence presented by defendant was the testimony of his father.

853 S.E.2d 474

A jury convicted defendant on all counts. Defendant was sentenced as follows: 300 to 420 months imprisonment for each count of first-degree sex offense with a child; 300 to 420 months imprisonment for rape of a child; 83 to 112 months imprisonment for first-degree kidnapping; and 19 to 32 months imprisonment for each count of indecent liberties with a child. The sentences were ordered to run consecutive to each other. The trial court ordered defendant to register as a sex offender and that a satellite-based monitoring hearing be conducted upon defendant's release from prison. Defendant entered timely notice of appeal.

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On appeal, defendant argues the trial court erred by I) denying his motion to dismiss a charge of taking indecent liberties with a child and kidnapping, II) entering judgment on two counts of sexual offense with a child by an adult after instructing the jury on the lesser charge of first-degree sex offense, and instructing the jury on first-degree kidnapping, III) admitting expert witness testimony about DNA profiles and allowing 404(b) evidence of defendant's prior misconduct with another child, and IV) allowing improper cross-examination of defendant's father.

I

Defendant first argues the trial court erred by denying his motion to dismiss for indecent liberties with a child and first-degree kidnapping. We disagree.

We review a "trial court's denial of a motion to dismiss de novo. " State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). In deciding whether to grant a defendant's motion to dismiss, the trial court must consider "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation and quotation marks omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith , 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980) (citations omitted).

Indecent Liberties with a Child

Defendant does not challenge the evidence that resulted in a verdict of taking indecent liberties based on kissing the child. As to the other charge of taking indecent liberties with a child, defendant argues the State did not provide sufficient evidence that defendant acted inappropriately by touching Maya's chest. Specifically, defendant argues that the evidence of defendant placing his hand on Maya's chest was offered for corroborative purposes only. We disagree.

Under N.C. Gen. Stat. § 14-202.1, a defendant can be convicted of taking indecent liberties with a child if: 1) the defendant is at least sixteen years old, 2) the child-victim is under the age of sixteen, and 3) the defendant is at least five years older than the child in question. Additionally, a defendant is guilty of taking indecent liberties with a child under subsection (a)(1) if he "[w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]" N.C. Gen. Stat. § 14-202.1(a)(1) (2019).

In the instant case, Maya testified that defendant removed her clothes and got on top of her in the men's bathroom. She stated defendant touched her and kissed her. The forensic interviewer from SafeChild testified about Maya's videotaped interview at SafeChild. The videotaped interview was introduced into evidence and played for the jury without objection from defendant. During the interview, Maya specifically stated that defendant touched her chest during the assault.

Nevertheless, defendant contends the evidence from Maya's videotaped interview was offered for corroborative purposes only because Maya's testimony at trial never specifically stated that defendant touched her on the chest. As such, according to defendant, the trial court erred by instructing the jury as to indecent liberties based on the videotaped interview. We disagree.

This Court has previously held that statements made by a victim during an interview

853 S.E.2d 475

with a licensed clinical social worker can be used as substantive evidence at trial when the statements were made with the understanding that they would lead to medical diagnosis or treatment and that the statements were reasonably pertinent to diagnosis or treatment. State v. Thornton , 158 N.C. App. 645, 649–51, 582 S.E.2d 308, 310–11 (2003) (holding that the videotaped interview of a child-victim's statements to a social worker was properly admitted for substantive purposes under the medical diagnosis or treatment exception to the hearsay rule).

"Rule 803(4) [Statements for Medical Diagnosis or Treatment] requires a two-part inquiry: (1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment." Id. at 649–50, 582 S.E.2d at 311 (citing State v. Hinnant , 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000) ).

Here, the videotaped interview was conducted at...