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State v. Warden

Court of Appeals of North Carolina

December 3, 2019

STATE OF NORTH CAROLINA
v.
DAVID WILLIAM WARDEN II

          Heard in the Court of Appeals 13 November 2019.

          Appeal by defendant from judgment entered 12 September 2018 by Judge Gregory R. Hayes in Rockingham County No. 17 CRS 1325 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Margaret A. Force, for the State.

          Mark Montgomery for defendant-appellant.

          TYSON, Judge.

         David 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.

         I. Background

         Virginia 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 their father.

         Virginia 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.

         While 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.

         After 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.

          At 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).

         Also, 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.

         DSS 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 claim?
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 ...

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