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State v. Blankenship

Court of Appeals of North Carolina

April 17, 2018


          Heard in the Court of Appeals 7 February 2018.

          Appeal by Defendant from judgments entered 24 February 2017 by Judge Nathaniel J. Poovey in Catawba County Nos. 13CRS057195-96, 14CRS001170-71 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Anne M. Middleton, for the State.

          Mark Montgomery, for defendant-appellant.

          HUNTER, JR., ROBERT N., JUDGE.

         Zachary Allen Blankenship ("Defendant") appeals following jury verdicts convicting him of rape of a child by an adult offender, four counts of taking indecent liberties with a child, and three counts of sexual offense with a child by an adult offender. Following the verdicts, the court sentenced Defendant to two consecutive terms of 300 to 420 months imprisonment and ordered Defendant to register as a sexual offender for the rest of his natural life. On appeal, Defendant contends the court erred in admitting hearsay statements and denying his motion to dismiss. In the alternative, Defendant argues his counsel rendered ineffective assistance of counsel. We hold the court did not err in admitting hearsay statements, but reverse the court's denial of Defendant's motion to dismiss the three counts of statutory sexual offense with a child by an adult offender and four counts of indecent liberties charges. We dismiss, without prejudice to his right to file a motion for appropriate relief, Defendant's ineffective assistance of counsel claim.

         I. Factual and Procedural History

         On 3 February 2014, a Catawba County Grand Jury indicted Defendant for one count of rape of a child, four counts of taking indecent liberties with a child, and three counts of sexual offense with a child. On 15 December 2016, the State filed a "Motion to Admit Hearsay Statements of the Victim into Evidence through Other Exceptions Clause 803 & 804[.]" (All capitalized in original). On 19 December 2016, Defendant filed his objection to the State's motion. Also on 19 December 2016, Defendant filed a motion to suppress his confession.

         On 3 January 2017, the court held a hearing on Defendant's motion to suppress and the State's motion to admit hearsay statements. The State and Defendant stipulated to Rose's[1] unavailability for purposes of hearsay exceptions.

         The State first called Defendant's mother, Gabrielle. On 30 November 2013, Gabrielle waited for Rose's mother, Tammy, to drop Rose off at Gabrielle's home. Typically, Tammy dropped Rose off at 8:30 in the morning. However, that day, Tammy did not arrive at 8:30, so Gabrielle and her husband went to Tammy's workplace. Upon arriving, Tammy told them she ran late that morning, so Rose stayed home with Defendant. Tammy offered to call Defendant, but Gabrielle said not to, because she would run errands before picking up Rose.

         Gabrielle and her husband, Keith, arrived at Defendant's home and knocked on the door. As Gabrielle slightly opened the door, Defendant "hollered no, wait a minute, wait a minute." Gabrielle shut the door, paused, grabbed the doorknob again, and Defendant again said, "wait a minute." Gabrielle told Defendant to hurry up. Defendant opened the door. Gabrielle saw Rose, who was wearing a t-shirt, but no bottoms. Gabrielle told Defendant he needed to stop "let[ting] her run around naked[, ]" and Defendant explained he was potty training Rose. Gabrielle put a diaper on Rose, dressed Rose, and brought Rose to Keith's truck.

         As Gabrielle placed Rose in the car seat, Rose said, "daddy put his weiner on my coochie." Gabrielle "was blown away" because she "never heard her say anything like that before." Gabrielle instructed Rose to "tell poppy what [she] just told nana." Rose "repeated the words exactly." Keith said, "I don't understand what a coochie is, and she pointed to her vagina." Keith wanted to confront Defendant, but Gabrielle told him they would "take care of this in another way." Gabrielle and Keith brought Rose to the emergency room.

         On cross-examination, Gabrielle indicated she was not "concerned" about Rose's "physical or mental condition" when she saw Rose at Defendant's home. Additionally, Rose did not "indicate any pain or suffering[.]" Rose "was normal" and not crying when she talked with Gabrielle.

         The State next called Keith Blankenship, Defendant's father. Keith's testimony regarding the morning of 30 November 2013 matched Gabrielle's testimony. Keith described Rose as "act[ing] like [Rose]" that morning and as "[n]ormal."

         The State called Adrienne Opdike, a former victim advocate at the Children's Advocacy and Protection Center.[2] Odpike interviewed Rose on 12 December 2013. In the interview, when asked about "boo-boo's", Rose said, "daddy put his weiner in my coochie and I bleed. I have blood." While Odpike did not say "it in [Rose's] verbatim language, . . . [Rose] did say daddy, coochie, blood together. She repeated that several times." Rose also mentioned something "coming out of the weiner" but could not elaborate.

         The State next called Bobbi Christopher, Rose's second cousin's wife. Bobbi first met Rose in 2013, when Rose was two years old. While on vacation in November 2013, Bobbi received a text message from Tammy, asking if she and Rose could stay with Bobbi and her husband. Bobbi agreed to let them stay at her home.

         In early December 2013, the first time Bobbi changed Rose's diaper, Rose "put her hand on her vagina and . . . [said] daddy put his weinie in me coochie." Rose said this statement and "I bleed in my coochie" "every time" Bobbi changed Rose's diaper. Bobbi described the remarks as "[s]pontaneous."

         In an oral ruling, the court admitted Rose's statements to Gabrielle and Keith under Rule 803(1) (Present Sense Impression), Rule 803(2) (Excited Utterance), and the residual exception of Rule 804(b)(5) of the North Carolina Rules of Evidence. The court also admitted Rose's statements to Opdike under the residual exception of Rule 804(b)(5). Lastly, the court admitted Rose's statement to Bobbi under Rule 803(1) (Present Sense Impression), Rule 803(3) (Statement of the Then Existing Mental, Emotional, or Physical Condition), and the residual exception of Rule 804(b)(5). In an order entered 6 January 2017, the court denied Defendant's motion to suppress his confession.[3]

         On 20 February 2017, the court called Defendant's case for trial. The State first called Gabrielle. Gabrielle's testimony regarding 30 November 2013 matched her testimony at the 3 January 2017 hearing. Defendant did not object to any parts of the testimony regarding Rose's statements to Gabrielle.

         The State next called Keith, whose testimony largely matched the testimony from the January hearing. Keith added when Gabrielle told Tammy about the allegations, Tammy "got very angry . . . and started hollering that her husband is not a pervert[.]" Again, Defendant did not object to any of Keith's testimony about Rose's statements to him.

         The State called Amy Walker Mahaffey, a registered nurse in the emergency room at Lake Norman Regional Medical Center. The State tendered Mahaffey as an expert in performing sexual assault exams. Before Mahaffety testified about what Gabrielle told her that Rose said, Defendant objected. The court dismissed the jury, and the following discussion ensued:

THE COURT: . . . And then the other argument that you had was what?
[DEFENSE COUNSEL]: No exceptions to the hearsay, particularly on those. You know, there is a medical diagnosis exception in this particular case, but --
THE COURT: So in regards to what the -- what [Rose] Blankenship said to the grandparents in the car -- and did I hear from Bobbi Christopher? I think I did.
[STATE]: You did, Your Honor.
THE COURT: And that is what she said to her in the house that day.
[STATE]: Yes.
[DEFENSE COUNSEL]: Which I'll renew my objection at this time knowing that it's been ruled on just for preservation.

         The court admitted the statements, under Rule 803(4) of the North Carolina Rules of Evidence-statements made for the purpose of a medical diagnosis or treatment.

         During the examination, Rose said, "daddy put his weiner in my coochie[.]" Mahaffey examined Rose's genitalia, and Rose told Mahaffey "nothing hurt." Upon review, "[t]here were no obvious signs of trauma, meaning that there had been no blunt force trauma to the area." However, lack of trauma did not mean Rose was not penetrated. Additionally, the exam and the lack of findings were consistent with what Rose reported to Mahaffey.

         The State called Bobbi Christopher. Bobbi's testimony regarding how Rose came to live with her and Rose's comments during diaper changes matched her testimony at the January hearing. At the time of the trial, Rose lived with Bobbi's daughter and son-in-law.

         The State next called Adrienne Opdike. The State tendered Opdike as an expert in forensic interviewing. Before testifying regarding what Rose told her in the interview, Defendant objected. Defense counsel "assert[ed] that objection as to everything Ms. Opdike says that [Rose] says" but would also object to three specific lines. As at the January hearing, Opdike testified Rose told her "daddy put his wiener in her coochie and she bleed." Rose could not answer "specific questions" about the incident, but kept "repeating that statement." Rose also stated, "weiner come out, weiner come out."

         The State called Marcella McCombs with the Catawba County Sheriff's Office. In 2013, McCombs worked as a child sexual assault investigator. On 13 December 2013, McCombs executed two search warrants-one for Defendant's home and one for electronics in the home-and arrested Defendant. Investigators searched Defendant's electronics for pornographic material, but did not find any on Defendant's computer.

         McCombs returned to the Sheriff's Office to interview Defendant. McCombs read Defendant his Miranda rights, and Defendant signed a form, waiving the rights. McCombs recorded the interview with Defendant, which was published to the jury.

         In the beginning of the interview, Defendant denied watching pornography in the past two years or touching Rose inappropriately. However, Defendant told officers he and Tammy often had sex together while Rose laid in the bed. In several instances, they would "continue", even after Rose awoke. Additionally, sometimes Rose would climb on his back while he was having sex with Tammy.

         Defendant admitted to watching pornography in front of Rose. Additionally, Rose witnessed Defendant ejaculate. Two weeks before the interview, Defendant watched pornography on his computer. Rose sat on a nearby couch while Defendant watched and masturbated.

         Defendant would also put lotion on his fingers and "rub" Rose's vagina. He rubbed her "about three" times, all within the month prior to the interview. However, Defendant denied Rose's allegations of him putting his penis "in her coochie."

         Another time, Defendant watched videos "of a sexual nature" on the computer. Rose "grabbed" and "squeezed" his penis. He thought she learned how to grab his penis from watching him masturbate.

         The State called Tammy. On 30 November 2013, Tammy, Gabrielle, and Keith arranged for Tammy to bring Rose to her grandparents' on Tammy's way to work. However, Tammy woke up late and left Rose at home with Defendant. Gabrielle and Keith arrived at Tammy's work and discussed picking up Rose from Tammy and Defendant's home. Tammy asked if they wanted her to call Defendant, so he would be ready for their arrival. Gabrielle and Keith "said that . . . they weren't for sure if they were going to pick her up then[, ]" so Tammy did not call Defendant.

         Tammy got off work around 3:00 p.m. and called Gabrielle and Keith, who told her to come to their house to pick up Rose. When Tammy arrived at their home, Gabrielle told Tammy "something had happened and [she] wasn't going to like it[.]" Gabrielle and Keith told Tammy "[Defendant] had been reported as a risk to [Rose]." Tammy was in shock and "never thought [Defendant] to be a threat to [Rose]." Rose never made similar statements to Tammy about Defendant.

         Tammy brought Rose back to her and Defendant's home. Tammy told Defendant of the allegation, "and he was a bit in shock[.]" Tammy and Rose left Defendant's home and stayed the night at their church. Tammy and Rose then moved in with Bobbi, but Tammy soon moved back in with Defendant.

         The State next called Jennifer Owen, a supervisor with Catawba County Department of Social Services ("DSS"). In November 2013, Owen worked as a forensic investigator with DSS. On or about 2 December 2013, Owen met with Tammy and Rose, and Owen explained the allegations against Defendant to Tammy. Tammy "was upset about it. She was somewhat angry saying that she didn't believe it, that this was a waste of time, that [Defendant] loved [Rose] and that he was more protective of [Rose] than she was." Tammy told Owen how Rose walked in on Tammy and Defendant having sex. Upon seeing Rose, the two separated and covered themselves. Rose said "weiner in coochie" and repeated the statement several times

         On 4 December 2013, a nurse at Children's Advocacy and Protection Center completed a forensic medical exam of Rose. During the exam, Rose "indicated there was blood in her coochie and it came from the bed" and said "mommy broke it[.]"

         After the exam, Owen scheduled a forensic interview of Rose. When Owen told Tammy about Rose's statements in the interview, [4] Tammy "didn't agree. She didn't believe it. She continued to defend [Defendant] and state he would never do any of this and that [Rose] wasn't telling the truth and none of this had ever happened."

         On 13 December 2013, McCombs called Owen and told her officers arrested Defendant and Defendant "confessed." Around 2 p.m., Owen arrived at the Catawba County Detention Center. After receiving investigators' permission, Owen spoke with Defendant. Defendant told Owen:

he had not done anything and then he said that he had already told investigators everything that had happened . . . . He told me that he had touched [Rose]. He said that he sleeps naked with [Rose], that him and Tammy sleep together and [Rose] sleeps in the bed with them and that he sleeps naked. He told me that there were multiple times when he and Tammy had engaged in sexual intercourse and that [Rose] would usually wake up. Sometimes she would watch but there would be times that she would ...

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