in the Supreme Court on 10 April 2019.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, 812 S.E.2d 896 (2018),
finding no error in part and reversing in part judgments
entered on 1 June 2015 by Judge Paul G. Gessner in Superior
Court, Wake County. On 20 September 2018, the Supreme Court
allowed the State's petition for discretionary review of
H. Stein, Attorney General, by Sherri Horner Lawrence,
Assistant Attorney General, for the State-appellant.
John Edgerton, IV for defendant-appellee.
must decide whether the Court of Appeals erroneously
determined that the trial court erred by denying
defendant's motion to dismiss charges of felonious
obstruction of justice and accessory after the fact to sexual
activity by a substitute parent. After careful consideration
of the record in light of the applicable law, we affirm in
part and reverse in part the Court of Appeals' decision,
and remand this case to that court to determine whether there
is sufficient evidence to enhance the charge of obstruction
of justice for denying access to Jane from a misdemeanor to a
felony under N.C. G.S. § 14-3(b).
Factual and Procedural Background
Mardi Jean Ditenhafer is the mother of Jane, born on 27
November 1996, and John, born in September
2004. William Ditenhafer began living with
defendant and Jane when Jane was five years old. When Jane
was in the third grade, Mr. Ditenhafer adopted her. After
Jane started middle school, defendant began working outside
of the home during the week and was away from the home
"almost . . . all day." As a result, Mr. Ditenhafer
was left alone with Jane and John.
Jane was in the eighth grade, she began e-mailing sexually
suggestive pictures to a boy. After defendant and Mr.
Ditenhafer learned about these images, defendant threatened
to call the police if Jane engaged in similar conduct in the
Jane was fifteen years old, defendant and Mr. Ditenhafer
decided that Mr. Ditenhafer would give Jane weekly full-body
massages for the ostensible purpose of improving her
self-esteem. After one of these massages, Mr. Ditenhafer sent
Jane to take a shower. As Jane walked to her room wearing
only a towel following her shower, Mr. Ditenhafer called her
into the living room, where he displayed additional sexually
suggestive pictures that Jane had sent to the same boy as
earlier, and told Jane that either he would show the new
pictures to defendant or Jane could "help him with his .
. . boner." Fearing he would tell her mom about the
photos, Jane complied with his instructions to discard the
towel and sit next to him; Mr. Ditenhafer then guided
Jane's hand to his penis until he ejaculated.
couple of weeks of similar behavior, Mr. Ditenhafer began
compelling Jane to perform oral sex upon him. Jane did not
tell defendant about the abuse because she "didn't
think [defendant] would believe [her] and [ ] would get angry
at [her] for making up a lie." Once Jane reached the age
of sixteen, Mr. Ditenhafer engaged in vaginal intercourse
with her on multiple occasions.
her ninth-grade year, Jane visited her aunt in Phoenix,
Arizona. Jane told her aunt, Danielle Taber, that Mr.
Ditenhafer had been sexually abusing her. When Jane and Ms.
Taber called defendant to inform her about the ongoing abuse,
defendant became angry at Jane. Even so, Ms. Taber called the
local police, who began an investigation. On 9 April 2013,
the Arizona law enforcement agency investigating Jane's
allegations notified the Wake County Sheriff's Office
about the sexual abuse that Jane was alleging.
returned to North Carolina two days after her conversation
with Ms. Taber. As they returned home from the airport,
defendant told Jane that she did not believe her allegations
and stated that Jane needed to "tell the truth and
recant . . because it was going to tear apart the family and
it was just going to end horribly." Subsequently,
defendant tried to have Jane admitted to a mental health
facility and told John that "Your sister's
crazy," and that the family "need[ed] to get her
aftermath of Jane's return to North Carolina, defendant
continued to urge Jane to "tell the truth because [Jane]
was tearing apart her family," warned that "[Mr.
Ditenhafer] was going to go to jail because of [her]
lies," said that "[John] was going to turn into a
drug addict and drop out of high school" because of what
Jane was doing, and called Jane "a manipulative
bitch." Defendant prevented Jane from talking to her
Arizona relatives until Jane "called up [her] aunts and
told them that [she] was lying." In addition, defendant
threatened to call off a trip to Disneyland if Jane did not
recant, stating that "Disney is not going to happen
because we're going to lose our money" and that,
"if you recant and tell the truth, . . . then we can go
to Disney." In the same vein, defendant claimed that the
family would "lose our stuff and the animals" if
Jane did not recant. Finally, defendant told Jane that
defendant might have breast cancer and that Jane "needed
to stop this" because it was making the stress that she
was experiencing as a result of her possible malignancy
result of the ongoing investigation into Jane's
allegations, Mr. Ditenhafer left the family home and Jane
began meeting with Susan Dekarske, a social worker with the
Wake County Child Protective Services Division of Wake County
Human Services. Defendant was usually present or "in
listening distance" during these meetings. On 21 June
2013, Detective Stan Doremus of the Wake County Sheriff's
Office and Ms. Dekarske interviewed Jane at the family home.
According to Detective Doremus, defendant had her hand on
Jane's thigh "virtually the whole time."
Detective Doremus indicated that Jane "didn't say a
whole lot" because, "as soon as [she] opened her
mouth to talk, Defendant would answer the questions." In
the course of this interview, defendant told Detective
Doremus and Ms. Dekarske that "there is some truth to
everything that [Jane] is saying but not all of it is
July 2013, defendant allowed Jane to meet with Detective
Doremus and Ms. Dekarske alone because defendant thought that
Jane intended to recant her accusations against Mr.
Ditenhafer. Prior to the meeting, defendant told Jane to tell
Detective Doremus and Ms. Dekarske that she had "made it
all up" because she "just wanted [Mr. Ditenhafer]
out of the house" and "was just angry at
everyone." At the meeting, however, Jane told Detective
Doremus and Ms. Dekarske that "[m]y mom thinks I'm
in here to recant, but I'm not because I'm telling
the truth" and that she did not "know what to do
because I can't take it at home anymore."
meeting progressed, defendant began sending text messages to
Jane in which she inquired "what's going on, are you
almost done[?]"As Detective Doremus and Jane discussed
certain e-mails that Mr. Ditenhafer had sent Jane, defendant
entered the room and interrupted the interview with a
"smirk on her face." At that point, Detective
Doremus told defendant that "I'm not sure what you
thought [Jane] was going to tell us, but she didn't
recant" and showed defendant the e-mails that had been
exchanged between Mr. Ditenhafer and Jane. In response,
defendant became angry, stated that "it doesn't
explain anything," and departed abruptly, taking Jane
result of the pressure that she was receiving from various
family members, including John, Jane decided to recant her
accusations against Mr. Ditenhafer. In essence, Jane
"didn't want to lose [John, ] so [she]
August 2013, Ms. Dekarske went to the family home to conduct
a regular home visit. As Ms. Dekarske was departing at the
conclusion of the visit, Jane ran from the house and told Ms.
Dekarske, "I just want to let you know I am recanting my
story and I'm making it all up." Ms. Dekarske
described Jane's recantation as "very robotic and
boxed in" and stated that her comments appeared to have
"been rehearsed for her to say."
August 2013, Jane called Detective Doremus while defendant
listened on a separate line. According to Detective Doremus,
it sounded as if two people were already talking when he
answered the phone. Almost immediately, Jane stated, "I
wish to recant my story." On 21 August 2013, Jane sent
an e-mail to Detective Doremus that defendant had helped her
to compose in which she recanted her accusations against Mr.
Ditenhafer. As a result of this e-mail exchange, Detective
Doremus set up a meeting with Jane.
August 2013, Mr. Doremus met with Jane at her school in an
attempt to avoid any interruptions by or confrontations with
defendant. At that meeting, Jane told Detective Doremus,
"I can't talk to you. I need to call my mom. . . .
I'm not talking to you." Jane then called defendant
and told her about the meeting. Defendant later told Jane
that she was proud of Jane for not saying anything to
result of Jane's recantation and various other factors,
including defendant's desire for family reunification,
Detective Doremus elected to refrain from charging Mr.
Ditenhafer with committing any criminal offenses against Jane
and Ms. Dekarske closed her child protective services