State v. Giddens

• Decision Date: 18 August 2009
• Docket Number: No. COA08-1385.,COA08-1385.
• Parties: STATE of North Carolina v. Christopher Lee GIDDENS.
• Court: North Carolina Court of Appeals

681 S.E.2d 504

STATE of North Carolina v. Christopher Lee GIDDENS.

No. COA08-1385.

Court of Appeals of North Carolina.

August 18, 2009.

Appeal by Defendant from judgment entered 9 September 2008 by Judge C. Philip Ginn in Superior Court, Macon County. Heard in the Court of Appeals 9 April 2009.

Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Pitman, for the State.

Parish, Cooke & Condlin, by James R. Parish, Fayetteville, for Defendant.

STEPHENS, Judge.

A jury found Defendant guilty of two counts of first degree sex offense, one count of taking indecent liberties with a child, and one count of first degree rape on 4 June 2008. The trial court entered judgment in accordance with this verdict on 9 September 2008, and sentenced Defendant to a term of 288 to 355 months imprisonment. From this judgment, Defendant appeals.

I. Facts and Procedural History

The State's evidence presented at trial tended to show that Defendant and Amanda Biringer ("Amanda") were married on 21 February 1998. Defendant and Amanda had one daughter, V.G., who was ten years old at the time of trial. Defendant also became the stepfather to Amanda's son, J.B., who was fourteen years old at the time of trial.

J.B. testified at trial to the following: J.B. stated he did not like Defendant because Defendant had abused and sexually abused him on a daily basis. Defendant touched J.B. in his "private areas[,]" and Defendant made "[J.B.] put [J.B.'s] mouth on [Defendant's] penis and put his penis in between [J.B.'s] legs and [Defendant] would try to put his penis up [J.B.'s] butt." Defendant put his penis in J.B.'s mouth between five and ten times. Defendant would also put lotion on J.B.'s legs and simulate intercourse. Defendant always did this with J.B. in Defendant's bedroom and when Amanda and V.G. were out of the house. Defendant sexually abused J.B. from the time J.B. was in fourth grade until he was in sixth grade. J.B. testified that Defendant tried to insert his penis into J.B.'s anus when J.B. was in fourth grade. Defendant told J.B. that if he told anyone what happened, Defendant would kill Amanda.

V.G. testified that she felt disappointed with Defendant because he raped her. V.G. described what she meant by "raped" by stating "[Defendant] placed his wrong private place in mine." Defendant "forced [V.G.'s clothes] off" and removed his own clothes during these times. V.G. testified Defendant committed these acts "maybe two" times over the course of approximately one year. V.G. did not tell anyone when Defendant was abusing her because Defendant threatened to kill Amanda if she did, and V.G. believed Defendant's threats.

Amanda and Defendant separated on 16 January 2006. On or about 10 November 2006, Amanda was going through the clothes in the backpack V.G. frequently took to visit Defendant, when Amanda and Misty Birch ("Birch") found a pair of torn panties. Amanda asked V.G. what happened to the panties, and V.G. began to cry and then said Defendant had torn the panties. Amanda also testified that she had seen Defendant smack J.B. on the head and push J.B. down. Amanda further testified that she finally left Defendant because "it was getting too dangerous for the kids" and Defendant would not stop drinking and doing drugs.

Amanda contacted Amy Stewart ("Stewart"), the Detective Sergeant over juvenile investigations at the Macon County Sheriff's Department, after hearing what Defendant did to V.G. Stewart testified at trial that she met with Amanda, V.G., and J.B. at their home within a week of receiving Amanda's initial phone call. Stewart first spoke with J.B., and J.B. told her that Defendant had made him "snort white powder up his nose and that it hurt his nose when he did it." J.B. also told Stewart Defendant would make J.B. suck his penis almost every day when Amanda was not home.

Stewart also spoke to V.G., who informed Stewart that Defendant would take off all of V.G.'s clothes and remove his own clothes when no one else was home. V.G. also told Stewart that Defendant kept pictures of children in his safe, and the children were naked and crying. V.G. told Stewart that Defendant "would rub his penis on her pee-pee[,]" and that "it went inside and that it hurt." V.G. told Stewart that this happened approximately ten times.

Kay Kent ("Kent"), a child protective services investigator with the Buncombe County Department of Social Services ("DSS"), testified to the following: Kent received a referral on 20 November 2006 from child protective services for J.B. and V.G. Kent was required to respond within twenty-four hours, which she did by making a home visit the following day, on 21 November 2006. During her visit, Kent first interviewed V.G. using a forensic model designed not to lead the child. V.G. described the same events to Kent that she had shared with Stewart. Kent next met with J.B., whose description of Defendant's actions was consistent with the description he provided Stewart. The forensic interview model Kent used to interview V.G. and J.B. is used statewide in order to gather information from children that is not leading and that looks for consistency.

After interviewing V.G. and J.B., Kent arranged for a medical examination to be conducted on the children by Dr. Cindy Brown at Mission Children's Clinic, in Asheville, North Carolina. A child medical exam is twofold. There is another forensic interview such as the one Kent conducted and then also a medical exam in which the child is tested for sexually transmitted diseases and other physical concerns. As a result of her investigation of V.G. and J.B., Kent completed a North Carolina Case Decision Summary/Initial Case Plan, which is a mandatory part of the structured assessment case decision process. This form names all of the children and all of the caregivers involved, followed by a section in which the investigator determines whether each caregiver is substantiated as a perpetrator.

Kent testified that Defendant was substantiated as the perpetrator with regard to both V.G. and J.B. The term "substantiated" means that the examiners "found evidence throughout the course of [their] investigation to believe that the alleged abuse and neglect did occur." In determining that Defendant was substantiated as a perpetrator, Kent and the other investigators looked at the case history involved as well as the specific allegations. Kent also conducted a global assessment which involves examining the level of supervision the children receive and whether the children's mental needs are being met in the home.

Jerri Szlizewski ("Szlizewski"), a child forensic interviewer ("CFI") at Mission Children's Clinic, testified next to the following: A CFI "[interviews] children who are alleged to be abused in a non-threatening, non-judgmental developmentally appropriate manner taking care not to lead them in any one direction." Szlizewski interviewed J.B. and V.G. in December 2006, and the children provided information consistent with their prior interviews. During their individual interviews with Szlizewski, the children looked at girl and boy diagrams and indicated what Defendant had done to them.

Dr. Cynthia Brown ("Brown"), the Medical Director of the Child Maltreatment Evaluation Program at Mission Children's Clinic, testified as an expert witness for the State. Brown examined J.B. in December 2006, and J.B.'s anal exam was normal. Brown testified that in cases where anal penetration had occurred, it was common to see findings "maybe five percent or less of the time." One reason for this is that children often wait to disclose their injuries, and these injuries heal during that time. Mary Ormand, the nurse practitioner in the Mission Children's Clinic, examined V.G., and Brown then reviewed the photographs taken during that examination. Brown did not observe any injuries from the pictures taken of V.G. Brown stated that in her experience and according to national reports, "very few children have findings even when there is genital to genital, penile to genital contact."

At the close of the State's evidence, Defendant made a motion to dismiss all of the charges, which the trial court denied. Defendant testified on his own behalf, and he denied ever physically or sexually abusing J.B. or V.G. Defendant's mother, Catherine Ledford, and Defendant's former landlord, Clara Ball, also testified on Defendant's behalf. At the close of all evidence, Defendant renewed his motion to dismiss, and this motion was denied.

The jury found Defendant guilty of first degree rape of V.G., taking indecent liberties with J.B., and two counts of first degree sex offense with J.B. Defendant renewed his motion to dismiss and made a motion for judgment notwithstanding the verdict. The trial court denied these motions. The trial court consolidated all charges for a single judgment within the presumptive range for a B1 felony, sentencing Level II. The trial court entered judgment sentencing Defendant to a term of 288 to 355 months imprisonment, lifetime registration as a sex offender, and lifetime satellite-based monitoring. From this judgment, Defendant appeals.

II. Admission of Evidence

Defendant argues the trial court committed plain error by allowing Kent to testify that her investigation had substantiated Defendant as the perpetrator of the abuse alleged by J.B. and V.G. For the following reasons, we must agree.

Defendant failed to object to Kent's testimony at trial, and is thus limited to plain error review. See N.C. R.App. P. 10(b)(2), 10(c)(4). In criminal trials, plain error review is available for challenges to jury instructions and evidentiary issues. Dogwood Development and Management Co., LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). "Reversal for plain error is only appropriate where the error is so fundamental that it undermines the fairness of the trial, or where it had a probable impact on the guilty verdict."...