in the Court of Appeals 13 November 2019.
by defendant from judgment entered 12 September 2018 by Judge
Gregory R. Hayes in Rockingham County No. 17 CRS 1325
Attorney General Joshua H. Stein, by Assistant Attorney
General Margaret A. Force, for the State.
Montgomery for defendant-appellant.
William Warden II ("Defendant") appeals from jury
convictions of sexual offense with a child by an adult, child
abuse by a sexual act, and taking indecent liberties with a
child, "Virginia." See N.C. R. App. P.
42(b)(3) (pseudonyms used in appeals filed under N.C. Gen.
Stat. § 7A-27 involving sexual offenses committed
against a minor). We reverse and remand for a new trial.
is Defendant's biological daughter. Defendant and
Virginia's mother were married for ten years and had two
children: Virginia and her brother. Defendant and
Virginia's mother separated in 2011. After their parents
separated, Virginia and her brother frequently visited with
was 15 years old in June 2017. Members of the family argued
about where to spend Father's Day. The disagreement
concerned whether Virginia and her brother would ride back
from a campsite with their grandfather, Defendant's
father, instead of riding with Defendant. The children's
grandfather thought they should ride with Defendant. He was
upset by the suggestion the children apparently preferred to
ride with him.
their grandfather was speaking to Virginia over the phone
about the issue, he asked her, "Why don't you want
to ride back with him? It's not like he molested
y'all or anything." Virginia "got quiet"
and "didn't say anything" in response.
this phone call, Virginia told her mother that Defendant had
made her perform fellatio on him when she was nine years old.
Virginia's mother and maternal grandmother took her to
the Rockingham County Sheriff's Department the next day.
A sheriff's deputy interviewed Virginia and the
Department opened an investigation. As part of this
investigation, a detective contacted DSS and Help,
Incorporated to set up a forensic interview with Virginia.
trial, Virginia testified to this alleged initial incident
and two other similar incidents with Defendant, which
allegedly occurred three years later when Virginia was 12
years old. No one else witnessed any of these incidents, nor
was there any contemporaneous corroborating or physical
evidence presented. The trial court issued the jury a
limiting instruction that Virginia's testimony about
those two later alleged incidents was being admitted solely
for the purpose of showing identity of Defendant, a common
scheme or purpose, or other permissible reasons under Rule
404(b). N.C. Gen. Stat. § 8C-1, Rule 404(b) (2017).
solely for the limited purposes of Rule 404(b),
Defendant's sister testified that Defendant had molested
her multiple times when she was between the ages of 7 or 8
and 12 years old. Virginia's mother, maternal
grandmother, and paternal grandfather testified to
corroborate only the events surrounding Virginia's first
reporting of her allegations and changes in her behavior
growing up. No other witnesses with direct knowledge of the
allegations at the time they had allegedly occurred, or any
other witness to whom she had contemporaneously
"disclosed" these allegations corroborated
Virginia's allegations. No physical evidence arising from
or supporting any of the allegations was presented.
Child Protective Services Investigator Melissa McClary
testified, without objection by Defendant, that DSS believed
Virginia's allegations against Defendant to be true:
Q. [D]oes your office either substantiate or un-substantiate
A. Yes. . . . [P]art of our role is to determine whether or
not we believe allegations to be true or not true. If we
believe those allegations to be true, we will substantiate a
case. If we believe them to be not true or we don't have
enough evidence to ...