in the Court of Appeals 7 February 2018.
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.
Montgomery, for defendant-appellant.
HUNTER, JR., ROBERT N., JUDGE.
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.
Factual and Procedural History
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.
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 unavailability for purposes of hearsay
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
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
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
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.
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
State called Adrienne Opdike, a former victim advocate at the
Children's Advocacy and Protection Center. 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.
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.
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."
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
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
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.
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
THE COURT: . . . And then the other argument that you had was
[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
THE COURT: Okay.
[DEFENSE COUNSEL]: Which I'll renew my objection at this
time knowing that it's been ruled on just for
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.
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.
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.
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."
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
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
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.
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
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."
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.
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.
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.
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.
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
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
the exam, Owen scheduled a forensic interview of Rose. When
Owen told Tammy about Rose's statements in the interview,
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."
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 ...