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State v. Ditenhafer

Court of Appeals of North Carolina

March 20, 2018


          Heard in the Court of Appeals 15 May 2017.

         Appeal by Defendant from judgments entered 1 June 2015 by Judge Paul G. Gessner in Superior Court, Wake County. Nos. 14 CRS 209763 and 14 CRS 209764

          Attorney General Joshua H. Stein, by Assistant Attorney General Sherri Horner Lawrence, for the State.

          Jarvis John Edgerton, IV, for Defendant.

          McGEE, Chief Judge.

         Mardi Jean Ditenhafer ("Defendant") was convicted of two counts of felony obstruction of justice and one count of felony accessory after the fact to sexual activity by a substitute parent. Defendant contends the trial court erred in denying her motions to dismiss the charges and in its instruction to jurors regarding accessory after the fact. We uphold Defendant's conviction for obstruction of justice by causing her daughter to recant the report of sexual abuse, but we vacate Defendant's conviction for obstruction of justice based on denying investigators access to the daughter. We also vacate Defendant's conviction for being an accessory after the fact for her failure to report a crime.

         I. Factual and Procedural History

         The evidence at trial tended to show that in 2013, Defendant was married to William Ditenhafer ("William"). The couple had two children, a daughter ("the daughter") and a younger son ("the son"). The daughter is Defendant's biological daughter and was adopted by William when she was in the third grade. The son is the biological son of Defendant and William.

         The relationship between William and the daughter was initially positive. However, in middle school, the daughter's grades began to drop as a result of self-esteem issues, and she began to harm herself. William punished the daughter for her dropping grades with corporal punishment, which "scared [her] a lot with his anger and his yelling, um, and the spankings." The daughter tried to bring her self-esteem and self-harming issues to the attention of Defendant, but Defendant grew angry with the daughter and claimed the daughter was only seeking attention. As a result of her parents' anger at her, the daughter believed she was a painful burden on the family.

         During eighth grade, the daughter began sending sexually suggestive pictures of herself by text message to a boy. William discovered the photos, and he and Defendant grounded the daughter. Rather than seek professional counseling for the daughter, William, with Defendant's knowledge, began to give the daughter full-body massages under the guise of improving her self-image. William gave the massages to the daughter once a week while she was covered only by a towel.

         After one of the massages, the daughter took a shower to remove oil from her body. After the shower, as the daughter was walking to her room with a towel wrapped around her body, William called her into the living room where he was seated on the couch. A television displayed several suggestive photographs that the daughter had again sent to the boy by text message. William told the daughter he had been looking at the photos and that they "turned [him] on." He then gave the daughter an ultimatum: either stimulate his penis with her hand or he would show the photos to Defendant and have the daughter sent to jail. The daughter began to cry and refused for several minutes, but ultimately relented. William then took off his pants and instructed the daughter to drop her towel. He guided her hand along his penis until he ejaculated. William made the daughter touch his penis at least twice a week thereafter. William's abuse of the daughter eventually expanded to include making her perform fellatio on him on at least three occasions, and he gave her a book with instructions on how to perform sex acts. The daughter did not tell Defendant about these incidents because she feared Defendant would not believe her and would punish her.

         The daughter turned sixteen on 27 November 2012. Thereafter, William had vaginal intercourse with her on multiple occasions. He also penetrated her vagina with vibrators and his fingers several times and attempted anal penetration on several occasions. He also bought her sexually suggestive clothing to wear for him, took sexually suggestive videos and photographs of her in those outfits and various stages of undress, and sent her explicit email messages requesting sexually suggestive photographs from her. The daughter attempted to hint to Defendant that she was being abused by leaving her undergarments in Defendant's and William's bed; when confronted, William told Defendant that the daughter had just been napping in their room. Defendant grew upset with the daughter for taking naps in her bed, making the daughter once again fearful of telling her mother the truth.

         William's abuse further exacerbated the daughter's self-harming. She began to cut parts of her body that William told her were attractive, such as her shoulders and bellybutton. The daughter attempted suicide several times by slicing her wrists, taking pills, and attempting to drown herself. When Defendant noticed the daughter's bandaged wrists after one such attempt, she told the daughter that she thought it was just another ploy for attention.

         In the spring of 2013, when she was sixteen, the daughter visited her biological paternal aunt ("the aunt") in Arizona. The night before she was to fly home, the daughter informed the aunt that she was being sexually abused and raped by her adoptive father. The aunt and the daughter called Defendant to tell her of the abuse and informed Arizona law enforcement. Rather than feeling supported after the call to her mother, the daughter felt that Defendant was "angry at [her]."

         A short time after reporting the abuse to the aunt, the daughter flew home to North Carolina and was picked up at the airport by Defendant. Defendant told the daughter she did not believe her, that she needed to recant, and that she needed to stop lying because "it was going to tear apart the family and it was just going to end horribly and that [the daughter] didn't need to do this." The daughter reiterated to her mother that the abuse occurred.

         The daughter and Defendant met with Susan Dekarske ("Ms. Dekarske") with Wake County Child Protective Services ("CPS") and Detective Stan Doremus ("Detective Doremus") with the Wake County Sheriff's Department ("WCSD") on 11 April 2013 in Defendant's home. The daughter described William's abuse of her. CPS, William, and Defendant entered into a safety agreement whereby William was removed from the home during the investigation into the abuse. The daughter started seeing a therapist, Elizabeth Guarnaccia ("Ms. Guarnaccia"). The daughter met with CPS and WCSD several times over the following months with Defendant present or within listening distance. On almost a daily basis, Defendant pressured the daughter to recant her allegations, including yelling at her, threatening to have her involuntarily committed to a psychiatric hospital, calling her crazy and a "manipulative bitch, " and telling the son that his sister was crazy. Defendant told the daughter that she "was tearing apart her family and destroying her family and that William was going to go to jail . . . and [the son] was going to turn into a drug addict and drop out of high school" as a result of the daughter's reports of abuse.

         Defendant severed the daughter's contact with her family in Arizona and told her she would never see them again. Defendant later cancelled a trip the daughter had planned to take to Arizona, as well as a family trip to a Disney theme park, telling the daughter her allegations of abuse were "going to [cause the family to] lose our money and . . . our stuff and the animals[.]" Defendant then told the daughter they could go to Disney if she recanted her allegations against William. At one point, Defendant told the daughter Defendant had breast cancer and that the daughter needed to recant to relieve the stress it was putting on Defendant. Defendant also began to videotape the daughter, demanding that she recant on film. Defendant also monitored all the daughter's phone calls and texts. Defendant told the daughter she wished William could come back to the home. Finally, Defendant used the above facts and assertions to turn the daughter's grandmother and the son against the daughter.

         As a result of Defendant's conduct, the daughter did not feel safe at home, and considered leaving. Her thoughts of suicide returned. Ms. Dekarske testified that "[f]or the majority part of the investigation, [the daughter] continued to inform [her] that [Defendant] was pressuring her to recant the story[, ]" and Ms. Guarnaccia testified that "[the daughter] said that her mother [Defendant] asked her to lie to [Ms. Guarnaccia], to CPS, to the detectives, that her mother did not believe her and wanted her to recant because [the abuse] didn't happen." Defendant denied to Ms. Dekarske that she was coercing the daughter to recant.

         Defendant's attempts to influence the investigation into the daughter's abuse were not limited to her treatment of the daughter. Defendant and the daughter met with Ms. Dekarske and Detective Doremus on 21 June 2013. Detective Doremus testified that Defendant was seated "[s]houlder to shoulder" with the daughter, and with "her hand on [the daughter's] thigh virtually the whole time[.]" He further testified that "[i]t appeared to [him] as though [] [D]efendant was answering the questions for [the daughter]. The questions that were being asked of [the daughter], as soon as [the daughter] opened her mouth to talk, Defendant would answer the questions." At one point, Defendant told Detective Doremus that "there is some truth to everything that [the daughter] says but not all of it is true." Defendant also told Ms. Dekarske that "she believe[d] [the daughter] in regards to what she had disclosed; however, she still did not believe it was William who did that to her." Defendant openly expressed discomfort with the investigation at the conclusion of the interview and told Detective Doremus that she would not permit the daughter to speak with him alone. When Detective Doremus informed her that she could not prohibit such a meeting, Defendant reiterated that she was not going to authorize the daughter to meet with Detective Doremus alone.

         On 11 July 2013, the daughter was scheduled to meet with Ms. Dekarske and Detective Doremus at CPS's offices and, as Defendant drove the daughter to the meeting, the daughter told Defendant that she was going to recant because she could no longer handle the pressure of Defendant's constant scolding. Defendant then began to "coach" the daughter, telling her what she should say. Defendant allowed the daughter to meet with Ms. Dekarske and Detective Doremus outside of her presence.

         In the meeting, the daughter told Ms. Dekarske and Detective Doremus that, while riding to the meeting, she had told Defendant she would recant but that she would not do so because the allegations of abuse were true. As the meeting continued, the daughter received text messages from Defendant asking what was happening and how long the meeting would take. As a result of the daughter's statement, the text messages, and his prior interactions with Defendant, Detective Doremus knew at this point in the interview that "we had probably a limited amount of time to talk to her before [Defendant] pulled her out of that meeting[.]" Detective Doremus asked the daughter about emails, printouts, and other evidentiary documents indicating William's abuse of the daughter. Defendant soon entered the room and interrupted the interview. Detective Doremus testified that Defendant sat down at the table with "a smirk on her face" and when he informed Defendant that the daughter had not recanted, Defendant "became angry." Ms. Dekarske and Detective Doremus showed Defendant documentary evidence of explicit and sexually suggestive emails sent to the daughter from their home's internet provider. Defendant grew irate, said the emails "[don't] explain anything[, ]" and terminated the interview.

         Defendant continued to pressure the daughter to recant her allegations of abuse and, on 5 August 2013, following a meeting in her home with Defendant and Ms. Dekarske, the daughter recanted her report of abuse. In the meeting, Defendant had sought clarification from Ms. Dekarske concerning her obligation to cooperate with local law enforcement. As Ms. Dekarske was pulling out of the driveway, the daughter approached her car window and told Ms. Dekarske that she had made up everything. The daughter spoke in a "very robotic [manner], saying something [as if it had] been rehearsed for her to say." Ms. Dekarske saw Defendant watching her and the daughter from a window.

         Two days later, the daughter contacted Detective Doremus by phone and recanted her report of abuse. During the call, Detective Doremus heard a third person on the line. The daughter later e-mailed a recantation to Detective Doremus, with Defendant "prompt[ing] [the daughter] on what to write, and [the daughter] typ[ing] it up in [her] e-mail." Detective Doremus followed up with the daughter in person at her school on 29 August 2013. The daughter told Detective Doremus at the outset of the meeting that she was not supposed to speak to him, to which he responded: "Don't worry. I'm not going to ask you any questions." He explained to her that the investigation into her abuse was ending as a result of her recantation and there would be no prosecution.

         In a therapy session with Ms. Guarnaccia on 10 October 2013, and attended by Defendant, the daughter once more recanted her report of abuse, telling Ms. Guarnaccia that she was recanting not because the abuse did not occur, but instead because she "didn't like what [she] was doing to [her] family." The daughter's explanation upset Defendant and the daughter then denied the abuse outright. Ms. Guarnaccia later informed Ms. Dekarske that the daughter had told her: "I am recanting, but [the abuse] did happen."

         By Thanksgiving 2013, William was back in the family home. His abuse of the daughter resumed within a week, "just like [it] never stopped." The daughter felt she could not report the abuse to Defendant again because of Defendant's previous response and conduct in the prior investigation.

         In early February 2014, William demanded sex from the daughter, who was then seventeen. She "zoned out" and complied, allegedly coerced out of fear of William because "he was still angry and big, and [she] didn't want to get hurt, and [she] didn't want what happened with [her] family to happen again." As William and the daughter were engaged in intercourse on Defendant's and William's bed, Defendant walked into the bedroom and witnessed the abuse. The daughter ran into another room.

         Defendant began to interrogate her naked and crying daughter, asking if this was her first time having sex or if she had previously lost her virginity. The daughter told Defendant she had previously had sex with her boyfriend, and testified that she was afraid to tell her mother that her prior allegations against William were true. Defendant had witnessed William's abuse of the daughter on the same day that she was scheduled to meet with Detective Doremus to pick up a cell phone that had been searched for evidence in the earlier investigation. After questioning her daughter, Defendant had her get dressed and accompany her to a McDonald's restaurant where the exchange with Detective Doremus was to occur. Detective Doremus had arrived early, and watched Defendant and the daughter park. After parking, the daughter told Defendant that everything she had reported in the earlier investigation was true, to which Defendant replied: "I'm not sure if I believe you or not[.]" Detective Doremus watched Defendant and the daughter argue for a few minutes, and then exited his vehicle to retrieve the cell phone from the trunk. Defendant met him at the rear of his car, took the phone, and left. Defendant said nothing to Detective Doremus about the abuse she had witnessed earlier that same day. Defendant did not tell Detective Doremus about the conversation she had just had with her daughter, in which the daughter asserted the truth of the prior allegations of abuse.

         Defendant then left the McDonald's restaurant to take the daughter back home, where she planned to leave her with William and the son while Defendant was at work. The daughter protested, and Defendant allowed her to spend the night at a friend's house instead. Defendant picked up her daughter the following morning and returned her to the home with ...

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