in the Court of Appeals 4 October 2017.
by defendant from judgments entered 26 May 2016 by Judge
Richard L. Doughton in Guilford County 15 CRS 72481-85
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.
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.
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.
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.
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
that his child would be taken away if she told anyone. He
told Amy he would kill her.
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.
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.
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
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.
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
Thomas compiled her findings into a report after completing
her examination of Amy. This report was admitted into
evidence without Defendant's objection.
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.
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.
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
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.
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.
lies in this Court pursuant to N.C. Gen. Stat. §
7A-27(b) (2015) and N.C. Gen. Stat. § 15A-1444 (2015).
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
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.
Standard of Review
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).
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).
Rules 401 and 402
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 ...