State v. Godbey

• Decision Date: 15 November 2016
• Docket Number: No. COA15–877,COA15–877
• Citation: 250 N.C.App. 424,792 S.E.2d 820
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Ronnie Paul GODBEY

250 N.C.App. 424

792 S.E.2d 820

STATE of North Carolina

v.Ronnie Paul GODBEY

No. COA15–877

Court of Appeals of North Carolina.

Filed: November 15, 2016

Attorney General Roy Cooper, by Special Deputy Attorney General Anita LeVeaux, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for the defendant-appellant.

BRYANT, Judge.

Where N.C. Gen. Stat. § 8–57.1 is applicable in any judicial proceeding in which the abuse of a child is in issue, the trial court did not err in applying section 8–57.1 to defendant's criminal prosecution for child sexual abuse. Further, because the privileged material was evidence of defendant's pattern or modus operandi and was not outweighed by its prejudicial effect, it was not erroneously admitted under Rules 401, 403, or 404(b), and we find no error in the judgment of the trial court.

Ronnie Paul Godbey, defendant, and Karen Godbey ("Karen"), were married in 1996. At the time, Karen had two children: a three-year-old son and a daughter, Stephanie. ¹

Karen and defendant later had two children together in 2002 and 2008. All four children lived with the couple.

One day in May 2010, when Stephanie was nineteen years old, Karen asked Stephanie to help care for her siblings. Stephanie, who was on the phone with her boyfriend, said she already had plans. Karen asked Stephanie to get off the phone and when Stephanie refused, Karen pulled the phone away and slapped her. When Karen told Stephanie she had to stay home and babysit, Stephanie walked out, at which point Karen said, "[I]f you leave, don't come back."

After this argument, Stephanie stayed with a friend, Millie, for a few weeks. At some point, Stephanie and Millie went to the home of Stephanie's maternal grandfather, Larry Gobble, where Millie told Gobble that her house was too small for Stephanie to continue staying with her. Stephanie told Gobble that she could not go back home and, Gobble, who testified for the State, said,

well, here's the deal, unless you got some specific reason, like, you've been physically abused or you're in harms [sic] way of something being—in some kind of danger, you're not going to come to my house and live. You're going to go home and work the problems out with your mother.

At this point, Stephanie told Gobble that defendant had "abused" her at night while Karen was sleeping, but did not go into further detail. Gobble asked Stephanie if she had told Karen, and Stephanie said she had not because she thought Karen would not believe her. Stephanie stayed with Millie for another week or so. Then, after discussing the situation with his pastor, Gobble allowed Stephanie to move into his home.

At some point during the next day or two after Stephanie first told her grandfather about the alleged abuse, Gobble arranged for Stephanie to speak with Karen over the phone. Stephanie told Karen that defendant had been coming into her room and "messing with" her and "bothering" her, which Stephanie later testified at trial had been going on since she was about ten years old and continued until her eighteenth birthday.

Stephanie and Karen agreed to meet to talk further and Stephanie told Karen that defendant "would do things to her" and "molest[ed]" her. Karen was upset and in tears and suggested talking to a pastor. Stephanie agreed, and the two met with a pastor that day.

When Stephanie left the meeting with Karen and the pastor, Karen called defendant and asked him to meet her at the pastor's office. When he arrived, Karen confronted him with Stephanie's allegations. Defendant denied "messing with" Stephanie and appeared very upset. Karen and defendant then went home. Karen later testified that she decided to stay with defendant because she did not believe Stephanie's accusations.

In December 2011, Detective Sarah Benfield with the Rowan County Sheriff's Department spoke with Gobble's pastor after the pastor reported a "past sex abuse." After speaking with the pastor, Detective Benfield interviewed Stephanie. Stephanie alleged that defendant frequently came into her room over the years and (1) rubbed her back, breasts, and vagina; (2) performed cunnilingus on her; (3) inserted his fingers into her vagina; and (4) forced her to perform fellatio. She also claimed that defendant would turn her over and "hump" her back until he ejaculated.

Detective Benfield then talked with Karen and explained all of Stephanie's allegations, including the allegation that defendant would hump Stephanie's back until he ejaculated. About a week after Detective Benfield's meeting with Karen, Karen contacted the detective and said that when defendant engaged her in sexual activity, he would do the same "back humping" that Stephanie alleged defendant would do to her. Detective Benfield had Karen come in and read and sign a statement to that effect, dated 12 January 2012. About a month after she signed the 12 January 2012 statement, Karen contacted Detective Benfield again and told her she wanted to change her earlier statement. On 1 February 2012, Karen met with Detective Benfield and initialed and signed an amended statement, through which she explained that defendant's

doing something on my back was my idea. We only did it a few times. He would hump me on my back until he ejaculated on my back. It was when I wasn't able to have intercourse. It was consensual, and something we did together intimately, not against my will.

When Detective Benfield spoke with defendant, he denied having any sexual contact with Stephanie, said that Stephanie was lying, and told her that "this all started when she got kicked out of the house."

On 2 April 2012, defendant was indicted on two counts of first degree sex offense with a child, one count of statutory sex offense with a 13–, 14–, or 15–year–old, and three counts of indecent liberties with a child. All six indictments alleged an offense date range of 30 March 2001 through 29 March 2007 (the day before Stephanie's sixteenth birthday). Two years later, superseding indictments issued for the two charges of sex offense with a child. The case came on for trial at the 2 December 2014 Criminal Session of Rowan County Superior Court, the Honorable Christopher W. Bragg, Judge presiding.

Prior to trial, defendant moved to exclude any mention of sex acts between Karen and defendant, including references to Karen's statements to Detective Benfield. Defendant argued that private sex acts between a husband and wife were privileged marital communications under N.C. Gen. Stat. § 8–57(c). The trial court reserved judgment on the matter until Karen testified.

At trial, Stephanie testified about the abuse, including the "back humping." During its case-in-chief, the State did not call Karen as a witness or elicit any testimony from Detective Benfield, or any other witness, about defendant and Karen's sex life. At the close of the State's evidence, defendant asked the trial court to revisit the privilege issue before presentation of defense evidence. While the trial court agreed that sex acts between Karen and defendant were privileged marital communications, it held N.C. Gen. Stat. § 8–57.1 abrogated the privilege in this case.

Prior to the relevant portions of Karen's testimony, defendant renewed his objection to the State's cross-examination about her sex acts with defendant and also objected to such questioning on relevance and Rule 404(b) grounds. The trial court reiterated its prior ruling and overruled defendant's additional objections, holding that evidence of sex acts between Karen and defendant was admissible under Rule 404(b) "almost as a modus operandi ... [to] show a pattern [of] conduct by [defendant]." On direct, Karen, called as a defense witness, mentioned that she gave statements on two occasions at the sheriff's department regarding Stephanie's allegations and that she signed a statement every time. She did not refer to, and defense counsel did not elicit, testimony regarding the substance of those statements.

The State then cross-examined Karen, over contemporaneous objection, about her statements to Detective Benfield. Karen testified that the sexual activity in question did not begin until after the birth of her and defendant's second child in 2008 (thus, beginning after the date ranges alleged in the indictments). She explained that it did not entail defendant "humping" her back, but rather involved defendant rubbing his penis "between her butt." On redirect, Karen further explained the sex act she had described to Detective Benfield, stating that it involved defendant rubbing his penis between her oiled butt cheeks until he ejaculated, but that he never "humped" her back. Karen also explained that this was not something she enjoyed, but that it was her idea as sexual intercourse had become painful for her as a result of fibroids

after her son's birth in 2008.

Defendant testified and denied abusing or inappropriately touching Stephanie. He also testified on cross-examination as follows:

Q. Did you ever hear about an allegation and you humping Stephanie's back until you ejaculated?

A. Did—did I hear about it?

Q. Yes.

A. Yes, I heard about it. It's in the papers.

Q. All right. That's something similar to what you and your wife do, correct?

A. A little bit, but not—not really.

Q. Your wife's testimony was that didn't begin until 2008, after [your son] was born?

A. That's when she had her problems, yes.

Defendant's ex-wife, son, and sister also testified as character witnesses. After the defense rested, the State re-called Detective Benfield, who testified about Karen's statements, noting that Karen never informed her that the activity she described with defendant only began in 2008. Defendant objected to this line of questioning for "reasons stated previously ... including privilege."

In charging the jury, the trial court instructed, over defendant's objection that

[e]vidence has been received tending to show that the defendant and [Karen] engaged in a sexual act where the defendant

...