State v. Dixon

• Decision Date: 07 May 2002
• Docket Number: No. COA01-503.,COA01-503.
• Citation: 563 S.E.2d 594,150 NC App. 46
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Roger Dale DIXON.

563 S.E.2d 594

150 NC App. 46

STATE of North Carolina v. Roger Dale DIXON.

No. COA01-503.

Court of Appeals of North Carolina.

May 7, 2002.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Sue Y. Little, for the State.

Patricia L. Riddick, Mooresville, for defendant-appellant.

MARTIN, Judge.

Defendant was charged in a true bill of indictment with first degree statutory sexual offense against his six-year-old step-daughter (hereinafter "S.E."), in violation of G.S. § 14-27.4(a)(1). A jury found defendant guilty as charged. Defendant appeals from the judgment entered upon the verdict.

The State's evidence tended to show that the alleged incident giving rise to this action occurred on an evening between Halloween and Thanksgiving in 1998 when S.E. was in the first grade. On the evening in question, defendant was taking care of S.E. and her younger brother while S.E.'s mother, Martha Dixon, was at work. S.E. testified that while she and defendant were in the living room watching television, defendant told her to sit on his lap and that defendant inserted his finger into her "private part." When S.E. told defendant that it hurt, defendant responded that he was sorry. S.E. then got up and sat on the floor, where she and defendant played cards. S.E. testified that she and defendant later took a bath together and that they went to the bedroom and lay beside each other on the bed and that defendant licked her private part. S.E. testified that she told her mother about the incident on the following day, but that her mother did not believe her.

In December 1998, while S.E. was taking a bath at her grandparents' house, she told her aunt, Victoria Fox, that her "bottom" was hurting. Victoria asked her whether anyone "had touched it," and S.E. responded that defendant had "put his finger down there" and "wiggled it" while she was sitting in defendant's lap. After getting permission from S.E.'s mother, Victoria took S.E. to be examined by Dr. Willhide in Statesville, North Carolina.

Georgina Moose, a guidance counselor at Scotts Elementary School, testified that, in the spring of 2000, S.E. told her that defendant had sexually abused her. Moose stated that S.E. told her that defendant had placed her on his lap and had touched her private part.

Cynthia McCoy, a Child Protective Services Investigator for the Iredell County Department of Social Services investigated the matter after receiving a report on 15 December 1998 alleging sexual abuse. McCoy spoke to S.E. at her grandparents' home. S.E. told McCoy that she had gone to the doctor that day and that he checked her "bottom." When McCoy asked what she meant by her "bottom," S.E. pointed to her vaginal area. S.E. told McCoy that the doctor checked her bottom because it was hurting since her daddy put his finger in her private part. McCoy asked S.E. if defendant had done anything else to her while he had his finger in her private part and she responded that he kissed her. McCoy also testified that S.E. informed her that defendant had put his mouth on her private part.

Dr. Sarah Sinal, who was the head of the child abuse team at Baptist Hospital, was qualified as an expert witness in pediatrics and child sexual abuse. She performed a child medical examination on S.E. on 1 February 1999. Dr. Sinal noted some redness in S.E.'s genital area but testified that the irritation could be there for a variety of reasons. Dr. Sinal stated that she did not see any definite discharge. Dr. Sinal further indicated that S.E.'s hymen seemed delicate and not worn away. Cultures for sexually transmitted diseases were negative. According to Dr. Sinal, except for the irritation in S.E.'s genital area, S.E.'s exam was normal. Additionally, she explained that because the tissue in the female genital area is very stretchable, digital penetration is not likely to leave damage or permanent physical findings.

Cynthia Stewart, a social worker at North Carolina Baptist Hospital, was qualified as an expert in child sexual abuse. Her responsibilities at Baptist Hospital included initially interviewing the families when they arrived at the clinic. Stewart interviewed S.E. at the clinic on 1 February 1999. During the interview, S.E. told Stewart that her dad had touched her private part where he was not supposed to touch. S.E. told Stewart that she had been sitting on defendant's lap watching television when he put his finger there. When S.E. was asked what her father said, she responded, "[s]orry." When Stewart asked S.E. what happened to her and defendant's clothes while she was sitting on defendant's lap, S.E. stated that their clothes were thrown on the floor. S.E. pointed to the vaginal area of an anatomically correct doll to show where defendant had touched her. When Stewart asked S.E. whether the touching of her private part was outside or inside, S.E. said, "[i]nside." S.E. also indicated through words and an anatomically correct doll that defendant had touched her inside her anus. S.E. further told Stewart that defendant had licked her private part.

S.E. indicated to Stewart that she had seen defendant's private part. Stewart asked S.E. what defendant was doing when she saw his private part and S.E. responded, "I can't remember. I didn't want to see it. He was playing with it." S.E. told Stewart that she had seen something come out of defendant's private part and go into the commode. Stewart asked S.E. where defendant would be when he was playing with his private part, and S.E. responded that he would be sitting in his favorite chair and that he would tell her to go to bed afterward "real angry like."

Judy Herman, an Iredell County Sheriff's Deputy, was assigned to investigate the incident after the Department of Social Services brought the matter to her attention. On 18 December 1998, Herman interviewed S.E. at her office. S.E. told Herman that the incident between her and defendant had occurred between Halloween and Thanksgiving while her mother was working at Lowe's. S.E. told Herman that she was sitting on defendant's lap while they were watching television and the she was not wearing any clothes at the time. S.E. told Herman that she hugged defendant, and ["h]e used his left hand" and "[i]t hurt."

Dr. James A. Powell, a clinical psychologist, was qualified as an expert witness in the field of child sexual abuse and child psychology. Dr. Powell performed a child mental health psychological examination (CMHEP) on S.E. at the request of the Department of Social Services. Dr. Powell reviewed reports from Dr. Sinal and according to him, used them to develop his opinion as to whether S.E. had been abused. Dr. Powell also performed psychological tests on S.E., Martha Dixon, and defendant. Defendant was given a thematic apperception test (T.A.T.); S.E. was given a Michigan pictures test (M.P.T.) and an incomplete sentences test; and Martha Dixon was given a Minnesota multiphasic personality inventory (M.M.P.I.). According to Dr. Powell, defendant's T.A.T. showed the following:

There were a number of indications of conflicts in male and female relationships. The themes concerned sadness, people who were concerned and troubled, people being arrested because of his excessive drinking. There were suggestions in several stories of positive family interactions, but those appeared somewhat forced and slightly artificial.

There were no indications of a preoccupation with young females.

Dr. Powell testified that it is possible for a person who does not have a preoccupation with young females to still molest one. Dr. Powell explained that this could occur because an individual could molest a young female for a variety of reasons, such as revenge, opportunity, impairment, or trauma. Dr. Powell stated that S.E.'s test results indicated that S.E. had a very positive perception of her grandparents, that she did not feel afraid of the father figures in the stories, but that she did generate several stories that had strong themes of sadness. Dr. Powell said that S.E. did not appear to be clinically depressed. Dr. Powell also found that S.E. did not have any significant distress in her household, felt loved, liked attention, and had normal views and concerns. Dr. Powell concluded that the test results for Mrs. Dixon were not interpretable.

Dr. Powell was permitted to testify that he had an opinion that S.E. had been sexually abused. He based his opinion on interviews with S.E., her grandparents, her aunt, her mother, defendant, reports from Dr. Sinal, the use of the anatomically correct dolls, and the psychological test results. Dr. Powell acknowledged that children can be coached to give responses but testified that the manner in which S.E. presented her story indicated that she was not coached to do so, and that it was stretching the bounds of credulity to say that a seven-year-old could remember in such great detail what had occurred if she were simply being told what to say. Dr. Powell further testified that the sequence of events that S.E. described to him was consistent with the typical approach that most perpetrators of sexual abuse follow in order to gain access to the child and to abuse the child.

On cross-examination, Dr. Powell acknowledged that S.E.'s grandfather told him that S.E. had a vivid imagination, but that the grandparents did not think that S.E. created the story and believed that it had happened because S.E. said it had. In response to further cross-examination, Dr. Powell testified that all the information that he had compiled indicated that defendant was the perpetrator of the abuse.

Defendant testified in his own behalf. He testified that during the time period when the incident was alleged to have occurred, S.E.'s mother worked at night and that his responsibilities in the evenings included fixing supper, feeding his son baby food or a bottle, making sure S.E. got her bath, and putting her to bed. According to defendant, there were several instances in...