State v. Lewis

• Decision Date: 02 August 2005
• Docket Number: No. COA03-1045.,COA03-1045.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Michael Allan LEWIS.

Page 1

616 S.E.2d 1

STATE of North Carolina v. Michael Allan LEWIS.

No. COA03-1045.

North Carolina Court of Appeals.

August 2, 2005.

Appeal by defendant from judgment entered 23 May 2002 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 20 September 2004.

Attorney General Roy Cooper, by Assistant Attorney General Clinton C. Hicks, for the State.

James P. Hill, Jr., Asheboro, for defendant-appellant.

MARTIN, Chief Judge.

Defendant was found guilty by a jury of two counts of taking indecent liberties with a minor child. The trial court found as a factor in aggravation of sentencing that defendant "took advantage of a position of trust or confidence to commit the offense." Defendant was sentenced in the aggravated range to two consecutive terms of twenty to twenty-four months imprisonment. Defendant appeals.

The evidence at trial tended to show the following: C.L., a nine-year-old child, lived with her mother; the defendant, who is her father; and her seven-year-old brother, M.L., in Concord, North Carolina. C.L. testified that one night in January or February of 2001 while her mother was at work, defendant showed her and M.L. pornographic movies, pornographic magazines, and pornographic images on his computer. Defendant and M.L. took their clothes off, and they asked C.L. to take off her clothes as well. She complied. M.L., within the hearing of defendant, asked C.L. if she would show him "how [her] private opens." Defendant did not comment on M.L.'s request.

The following night, when her mother left for work, C.L. testified that, "[h]e showed us more sexual movies, and he showed us more things on the computer, and he [brought] out the toys then." The toys, C.L. testified, were "[o]f a man's private and a woman's private," and defendant asked C.L. "to stick the man's private into [her] private." C.L., however, refused. She testified that then defendant "wanted me to make him come," so he "[t]ook my hand and rub[bed] it up and down his private" using a lubricant. Defendant instructed her to do the same to her brother. C.L. testified that later, defendant "taught [her] about a B.J. where a woman sucks on his private, and I had to do that to ... [m]y brother." Defendant also asked M.L. and C.L. to have sexual intercourse. Defendant told C.L. not to tell anyone about these incidents or he would go to prison.

M.L. testified at trial that he remembered a time when he, C.L., and defendant were all together in the house unclothed. He testified that he and C.L. were coerced by defendant to "touch each other's privates." Defendant also showed them videos of "[p]eople doing sexual things." M.L. testified he saw defendant cleaning his private in the presence of C.L. He stated that defendant was present when M.L. and C.L. touched each other's privates, and that defendant, after describing what a "B.J." was, told C.L. to give her brother a "B.J." C.L. then performed fellatio on M.L.

Defendant testified that one night in February, C.L. and M.L. asked if they could watch a movie. He said yes, and he believed they had put in one of their Disney movies. He was in a different room on the computer at the time. About twenty minutes later, he heard noises inconsistent with a Disney movie, so he went to see what they were watching. He discovered they were watching some of his pornographic tapes. He continued watching with the children for about a minute, then he took out the tape. After this incident, C.L. and M.L. began asking questions about what they had seen, and defendant tried to answer their questions.

Defendant also testified that he suffers from severe depression and a ruptured disc in his neck. He takes medication for his depression, which causes him to have difficulty achieving an erection and reduces his interest in sex. He denied having his children (1) touch each other, (2) touch his private, or (3) have intercourse with each other. He also denied ever having been naked around his children.

The week after the alleged incidents occurred, C.L. told her mother and maternal grandmother about the sexual acts she performed with her father and brother. They, however, did not immediately report the incidents. Her mother, T.L., testified that she discussed the allegations with her husband, and he told her the children had only seen those acts in the pornographic movie they inadvertently watched. T.L. testified that when questioned again, C.L. admitted to her she had not seen any sexual acts in person but had only seen them on the video tape. Both defendant and his wife testified that they constantly had to discipline their children for not telling the truth.

The alleged abuse was not reported until June, 2001 when C.L. told her aunt, Veronica Lewis, what had happened. Ms. Lewis, the wife of defendant's brother, contacted the Swain County Department of Social Services (DSS), which notified the Concord Police Department of the allegations. John Cunningham, a child protective services social worker with the Swain County DSS, investigated the case and took statements from C.L. and M.L. which corroborated their testimony at trial.

Defendant testified he had a very bad relationship with Ms. Lewis. Defendant and Ms. Lewis had dated before she married his brother. Defendant described Ms. Lewis as being vindictive towards him and said she had threatened him physically on at least one occasion. Defendant's brother, Anthony Lewis, also testified to the "volatile" relationship between defendant and Veronica Lewis.

On 24 July 2001, C.L. and M.L. were taken to the Children's Advocacy Center at the Northeast Medical Center. The Children's Advocacy Center provides medical diagnoses and treatment to children who are alleged victims of physical or sexual abuse. C.L. was interviewed by Donna Hinson Brown, a registered nurse, and M.L. was interviewed by Julie Brafford, also a registered nurse. These interviews took place in a "child-friendly" room, not a medical examination room. The interview rooms often have markers or Playdough for the children to play with. Brafford testified that she was wearing a nurse's uniform during the interview.

C.L. and her mother signed a form prior to the interview which stated,

I have been told that I am here at Northeast Medical Center for a doctor's checkup and that part of that checkup includes talking to Donna Brown, R.N. I also have been told that Donna Brown, R.N., will share what is talked about with the doctor.

M.L. and his mother signed an identical form which identified Julie Brafford as the registered nurse. Each registered nurse also explained to the children and their mother that she would discuss the interview with a medical doctor who would then perform a physical examination. Brown testified that after her interview with C.L., she "shared with [the doctor] my direct recollection of what we had just discussed in the interview room .... [and] show[ed] him some diagrams that she had clarified where she had been touched." Brafford also testified that she spoke with the doctor regarding "everything [M.L.] had disclosed" to her.

Brown testified that during the interview she showed C.L. an anatomical drawing of a female and asked where C.L. had been touched that she did not like. C.L. identified the genital area and her mouth. Brown also showed C.L. an anatomical drawing of a male and asked what parts she had touched or had touched her. C.L. identified the genital area as the part she had touched of her father and brother, and she stated that she did not like this touch. During the interview, C.L. again stated that she, her brother, and her father had all been naked one night. She also stated that (1) her father made her brother put his private into her private, (2) her father showed her how to "stroke" his private part, and (3) her father asked her to give her brother a "B.J.", and she thought her father would "whoop" her if she did not comply.

Julie Brafford testified that during the interview, M.L. was unable to speak certain things out loud. She asked him to write what he could not say, and he wrote "he made us perform sexual acts." M.L. identified a male's "private place" on a drawing as the genital area, and he drew pictures of his private place and his sister's private place. Upon questioning, M.L. said his father had never touched either him or his sister, but he and his sister were made to touch each other. He also said he and his sister had seen "bad things" on the computer and "bad things" on the television with their father. After the interview, the doctor performed a medical examination of M.L. There were no physical findings from the exam.

Both interviews were video-taped. Prior to trial, defendant moved to suppress "any and all evidence resulting from these statements and video and rule the same inadmissible [at] trial," arguing that they "were not made for the purposes of medical diagnosis or treatment." The trial court denied defendant's motion. The tapes were admitted as substantive evidence at trial and shown to the jury, to which defendant made a general objection.

Defendant argues on appeal that the trial court erred in: (1) denying his motion to suppress, and overruling his objections, allowing the video-tapes of the interviews to be admitted as substantive evidence; (2) failing to declare a mistrial due to jury misconduct; and (3) denying his motions to dismiss the charges against him at the close of the State's evidence and at the close of all the evidence. By Motion for Appropriate Relief filed in this Court, defendant also asserts that his sentence, in the aggravated range, was structural error pursuant to the decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We find no error in defendant's trial but hold he is entitled to a new sentencing hearing.

First, defendant assigns error to the trial court's admission of the video-taped interviews...