State v. Mack Wash.

• Decision Date: 21 December 2021
• Docket Number: No. COA20-448,COA20-448
• Citation: 866 S.E.2d 531 (Table)
• Parties: STATE of North Carolina v. Mack WASHINGTON, Defendant.
• Court: North Carolina Court of Appeals

866 S.E.2d 531 (Table)

STATE of North Carolina

v.Mack WASHINGTON, Defendant.

No. COA20-448

Court of Appeals of North Carolina.

Filed December 21, 2021

Attorney GeneralJoshua H. Stein, by Special Deputy Attorney GeneralM. A. Kelly Chambers, for the State-appellee.

Dylan J.C. Buffum, for defendant-appellant.

GORE, Judge.

¶ 1 On 11 October 2019, defendantMack Washington was convicted of one count of statutory sexual offense with a child by an adult and six counts of taking indecent liberties with a child.On appeal, defendant argues the trial court prejudicially erred by excluding evidence under Rules 401,402, and412 of the North Carolina Rules of Evidence and abused its discretion by limiting his cross-examination of the complaining witness.He asserts this error was in violation of his constitutional right to present a defense and confront the witnesses against him, and he was prejudiced thereby.Defendant also contends the trial court erred when it failed to intervene ex mero motu when the State made grossly improper statements during its closing argument.We discern no error.

I.Factual and Procedural Background

¶ 2LaKenya Campbell first met defendant in 2005 while they were in high school.At that time, she was dating Phillip McKoy, with whom she had three children, including her oldest N.M.¹ born XX/XX/2005.Defendant and Ms. Campbell reconnected in 2013 after she had ended her relationship with Mr. McKoy, and she and her three children moved in with Ms. Campbell's father.Defendant was not introduced to Ms. Campbell's three children until 2014.Around the end of 2014, defendant began spending the night with Ms. Campbell and her three children, and the two were married on 30 September 2015.

¶ 3 While Ms. Campbell worked third shifts (7 P.M. to 7 A.M.) as a certified nursing assistant, defendant and Ms. Campbell's father would be at home with her children.Ms. Campbell and Mr. McKoy each testified defendant was "very playful" with the kids.Defendant and Ms. Campbell's relationship was dysfunctional such that it was common for Ms. Campbell to kick defendant out of the house when they got into a fight.This pattern increased in frequency between 7 September 2018 to 21 October 2018 until Ms. Campbell told defendantshe did not want to see him again on 22 October 2018.They have been separated since that date.

¶ 4 On 22 October 2018, N.M., who was 12 years old at the time, communicated through multiple texts and attempted phone calls to her mother that her stepfather, defendant, had raped her.Ms. Campbell came home and asked N.M. questions to discern whether she was telling the truth.N.M. told her mother that defendant perpetrated acts of sexual abuse on multiple occasions while she was at work.Ms. Campbell then asked N.M. to tell her what defendant's genitalia looked like because she knew he had a distinct skin disease, lichens planus, on his genitalia.N.M. responded by telling her mother it was crusty and scaly and that defendant would put "oil and stuff on it."Ms. Campbell knew at this point her daughter was telling the truth.

¶ 5 N.M. told her mother that defendant would rub his genitalia against her genital area over her underwear and that "some white stuff had came [sic] out."She also communicated that defendant had attempted to penetrate her one time by putting her legs up and that it was hurting her.Defendant only stopped because someone started to walk into the room.Ms. Campbell then took N.M. to the Raleigh police station, and they met with Officer Sisson.N.M. then met with the following people over the course of a couple weeks: Dr. Damilola Joseph at WakeMed, Joy Lassiter of Wake County Child Protective Services, Dr. Karen Todd and Tiffany Hampton of SAFEChild, and Detective Kevin Hubard of the Raleigh Police Department.These individuals later testified at trial along with N.M. and defendant.

¶ 6 N.M. first told Officer Sisson, Dr. Joseph, and Ms. Lassiter that defendant had been molesting her almost every day for five years while her mother was working.At trial, N.M. testified defendant had molested her from ages 9 to 12.Defendant kissed her mouth and sucked on her breasts.Defendant would rub his penis up against her vaginal area and then ejaculate on the floor or in her underwear.Defendant made N.M. rub his penis and would then push her to the side and ejaculate on the floor, which N.M. would then clean up.Sometimes N.M. would rub oil or lotion on defendant's penis.Defendant made N.M. perform oral sex on him and he ejaculated in her mouth which she then spit out in the sink and used water to wash the "white stuff" down the sink.One time, defendant ripped N.M.’s shirt when she attempted to avoid him.N.M. said that during the last assault, defendant penetrated her vagina by lifting up her legs while she was lying on the bed, and it was painful afterwards.N.M. testified that defendant's penis was very flaky and rough and that she had not seen his genitals until he began molesting her.

¶ 7 N.M. testified she did not know what was going on at first, but once she realized what was happening, she was concerned her mother would not believe her or that defendant might hurt her siblings.She stated the abuse occurred in her bedroom or her mother's bedroom while her mother was working, her siblings were watching TV in another room, and her grandfather was in his room with the door closed.Dr. Joseph testified there were no physical findings of trauma to her genital area, but this was common in sexual assault cases because the female genital area recovers quickly.Dr. Todd, an expert in pediatric sexual abuse cases, testified N.M.’s genital area and anal area were normal, but that 94 percent of sexually abused children have normal findings.She further testified N.M.’s exam was consistent with child sexual abuse based on her review of N.M.’s interview and disclosure.

¶ 8 During N.M.’s videoed interview with Ms. Hampton at SAFEChild, N.M. described the sexual abuse perpetrated by defendant.Ms. Hampton asked N.M. if anyone else had done this to her in addition to defendant.N.M. said yes, but she did not want to talk about it.N.M. only stated the additional abuser was fifteen years old, and the sexual abuse occurred more than once when she was eleven to twelve years old, but it stopped about nine months prior to the interview.N.M. refused to respond to many of Ms. Hampton's questions, and stated she was concerned people would think she welcomed the sexual abuse when she in fact did not.She stated she was afraid if she said what happened "the person might do something crazy" and asked she not be taken away from her mother.She also communicated concern that talking about the additional abuser would cause even more to happen than was happening with just one person.

¶ 9 On 10 December 2018, defendant was indicted on two counts of sexual offense with a child by an adult and six counts of indecent liberties with a child.Defendant pled not guilty, and a jury trial began 7 October 2019.Prior to trial, defendant moved in limine to admit the portion of the SAFEChild interview with Ms. Hampton in which N.M. confessed she had been abused by a fifteen-year-old.The trial court denied the motion in limine and excluded the evidence under Rules 401,402, and412 of the North Carolina Rules of Evidence.

¶ 10 At trial, N.M. testified she had memory issues and these issues caused confusion in the length of abuse and thinking defendant also abused her at her prior home.Defendant conducted a voir dire examination of N.M. regarding the sexual abuse by the fifteen-year-old.Defendant asked questions about the sexual acts with the teen, and further learned the teen at one point stayed at her father's house but moved to New York.Defendant entered into the record an offer of proof, and a transcript of the excluded portion of the interview.The trial court granted defendant's request for the State to limit its introduction of medical testimony of signs or symptoms of sexual abuse but communicated if the door was opened to this evidence, it would allow defendant to offer evidence of alternative reasons.

¶ 11 On direct examination, the State asked Detective Hubard if he did not charge defendant with the incident involving penetration into N.M.’s vagina because she could not determine where he penetrated at first, and he agreed that under the law he could not charge defendant.The State asked a follow-up question, "so he just—that he gets away with?" and Detective Hubard said, "Correct."The trial court sustained an objection by defendant to the follow-up question and answer.

¶ 12 During cross-examination, Ms. Campbell offered unsolicited testimony about N.M. cutting her wrists.Further information about self-harm subsequently came out from the State's witnesses, therefore defendant renewed his motion to introduce the excluded evidence, but it was denied.At the close of the State's evidence, the trial court gave jury instructions explaining there could be other reasons for the self-harm, and it struck the testimony about therapy and wrist cutting from the record.

¶ 13Defendant testified to his relationship with N.M. as brother-like, yet more mature since she is the eldest child.Defendant testified to talking to N.M. about "the birds and the bees," sending her a video about sexually immoral behavior that they watched together, late-night texts he sent her between 10:30 P.M.–4 A.M., and providing reasons as to how N.M. may have seen his penis, i.e. , jumping out of bed, the shower, or changing his clothes.

¶ 14 Prior to closing arguments, the trial court granted defendant's motion to dismiss one of the two charges for statutory sex offense with a child by an adult.During the State's closing argument, the prosecutor stated, "So what about that other penetration?She wasn't able to say if that was her vagina or her butt.She wasn't able to say that.And so guess what.He gets away with that one.He just gets that.He...