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State v. Spinks

Court of Appeals of North Carolina

November 21, 2017


          Heard in the Court of Appeals 4 October 2017.

         Appeal by defendant from judgments entered 26 May 2016 by Judge Richard L. Doughton in Guilford County 15 CRS 72481-85 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennie W. Hauser and Assistant Attorney General Michael E. Bulleri, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.

          TYSON, Judge.

         Daris Lamont Spinks ("Defendant") appeals from judgments entered upon jury verdicts convicting him of two counts of statutory sexual offense, one count of statutory rape, and two counts of indecent liberties. We find no error in Defendant's convictions. We dismiss Defendant's appeal of the trial court's order on lifetime satellite based monitoring ("SBM") without prejudice.

         I. Factual Background

         A. State's Evidence

          The State's evidence tended to show the victim ("Amy") and Defendant knew each other through Amy's older sister, Alexis, for a period of about five years. When Amy's sister had her own apartment, Amy would visit and Defendant would bring his 10-year old daughter over. Amy testified at one of these visits Defendant attempted to pull her pants down and put his lips to her bottom to make a noise.

         Amy testified Defendant and her sister had a baby daughter together. She testified Defendant, Alexis and their baby daughter stayed at Amy's house twice in December 2014. Amy was 13 years old at this time. Around 1:00 a.m. on the first night, Defendant entered Amy's room and threated to harm her if she said anything. Defendant pulled down her pants and touched her buttocks, stomach, and breasts. Defendant then engaged in vaginal intercourse with Amy. Amy pushed him away. Defendant then performed cunnilingus upon her. Amy told him to stop, but he continued. Defendant told Amy if she told anyone, his child would be taken away, and he would hurt Amy or have someone else hurt her.

         The next time Defendant stayed at Amy's house in December 2014, Amy set up a computer tablet in her room to record any other incidents which may occur. Defendant entered Amy's room during the night and threatened to hurt her. Defendant again engaged in vaginal intercourse with and performed cunnilingus on Amy. He left Amy's room when his child began to cry in another room. Amy told Defendant the following morning that she had recorded him. Defendant repeated to

         Amy that his child would be taken away if she told anyone. He told Amy he would kill her.

         Several days later, Defendant gave Amy a new pair of Nike shoes. Defendant told her the shoes were provided for her to "shut up" and to delete the video. Amy deleted the video, while in front of Defendant, and accepted the shoes.

         Amy told Defendant sometime in mid-January she was going to report the incidents. Soon thereafter, a rock was thrown through her window in the middle of the night. Defendant came to Amy's house the following day to look at the window. While Defendant was in the home, Amy told him she was going to tell someone about his assaults. Amy testified Defendant told her he was going to kill her.

         A few days later, Amy told her mother that Defendant had sexually assaulted her in December. Amy, her mother, and brother went to the police department two days later to report the sexual assaults.

         Dr. Stacy Thomas testified she had practiced as a pediatrician for over ten years. Dr. Thomas estimated she has examined over 500 child victims of alleged sexual abuse. Dr. Thomas was qualified as an expert witness in pediatrics, especially the evaluation and treatment of physically and sexually abused children. She was admitted to testify as an expert witness without Defendant's objection.

         Dr. Thomas testified she physically examined Amy on 16 March 2015. Prior to the examination, Dr. Thomas was briefed about the contents of an interview of Amy by Greensboro Police Detective Hines. Detective Hines told Dr. Thomas that Amy had disclosed one act of cunnilingus and one act of vaginal intercourse by Defendant. Dr. Thomas testified Amy exhibited symptoms "consistent with depression and anxiety." Amy's physical examination revealed she was in good physical health, and her external genital and anal exams were normal. During Amy's exam, Amy became hysterical, cried and shook.

         Dr. Thomas compiled her findings into a report after completing her examination of Amy. This report was admitted into evidence without Defendant's objection.

         The State offered the testimony of child witness ("Katy") over Defendant's Rule 404(b) and Rule 403 objections. Katy testified she was six years old in 2011. Katy testified she went to her friend's birthday party, where Defendant and Defendant's daughter also attended. Katy testified the party included a sleep over. Katy testified Defendant opened the door to the bedroom during the night where she and her friend slept, but closed it after both girls woke up. Katy testified someone had later entered into the room and engaged in anal intercourse with her. Katy identified Defendant as the person who had sexually assaulted her. After the assault, Defendant told Katy to be quiet and he would give her a dollar. Katy testified the next morning Defendant gave her a dollar.

         B. Defendant's Evidence

          Keisha Oats, testified Defendant was her nephew. Ms. Oats testified Defendant, Alexis, their baby, and Alexis' sister, Amy, visited at her home on Christmas Eve 2014. Ms. Oats testified Defendant and the others left her home around 1:30 am.

         Defendant testified when they left Ms. Oats home on Christmas Eve, he, Alexis, their baby and Amy went to Amy's mother's home, where he and Alexis had cooked and wrapped presents. Defendant denied performing any sexual acts upon Amy in December of 2014 and January of 2015, threatening Amy in December of 2014 and January of 2015, and going to Amy's home on New Year's Eve 2014 and giving Amy a pair of shoes.

         Defendant testified he found out about Amy's allegations after the Super Bowl in February and Detective Hines had contacted him soon thereafter. Defendant met with Detective Hines and denied the allegations. Defendant also denied the allegations against him by Katy. Defendant admitted he had stayed overnight at Amy's home on Christmas Eve and on another night around Thanksgiving of 2014.

         The jury returned verdicts finding Defendant guilty of two counts of statutory sexual offense of a person who was thirteen years old, one court of statutory rape of a person who was thirteen years old, and two counts of indecent liberties. The trial court sentenced him to two consecutive terms of 280 to 396 months in prison, and ordered lifetime sex offender registration and SBM. Defendant appeals.

          II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015) and N.C. Gen. Stat. § 15A-1444 (2015).

         III. Issues

         Defendant asserts three issues on appeal: (1) testimony from Katy concerning a previous alleged assault was improperly admitted under Rule 404(b) and unfairly prejudicial to him under Rule 403; (2) the trial court committed plain error by admitting Dr. Thomas' expert diagnosis and opinions, and he received ineffective assistance of counsel on this matter; and (3) the trial court erred by ordering Defendant to a lifetime registration on the sexual offender registry and SBM.

         IV. Katy's Testimony

         Defendant contends the trial court erred in admitting testimony from Katy under Rule 404(b). He argues the alleged acts at issue were different, the children were of significantly different ages, the circumstances surrounding the alleged assaults were different in nature, and the circumstances following each of the alleged acts were different.

         A. Standard of Review

         Our Supreme Court has held:

when analyzing rulings applying Rules 404(b) and 403, we conduct distinct inquiries with different standards of review. When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling. . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).

         "A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citation omitted).

         B. Analysis

         1. Rules 401 and 402

         "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2015). "All relevant evidence ...

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