NO COA05 469 DISTRICT EIGHTEEN NORTH CAROLINA COURT OF APPEALS STATE OF NORTH CAROLINA

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NO COA05 469 DISTRICT EIGHTEEN NORTH CAROLINA COURT OF APPEALS STATE OF NORTH CAROLINA Powered By Docstoc
					NO. COA05-469                        DISTRICT EIGHTEEN

                NORTH CAROLINA COURT OF APPEALS
                  *******************************

STATE OF NORTH CAROLINA              )
                                     )
           V.                        )   From Guilford
                                     )
JAMES ALTON DEAN                     )

                   *****************************
                  DEFENDANT-APPELLANT‟S BRIEF
                   *****************************

                     QUESTIONS PRESENTED

I.     SHOULD MR. DEAN HAVE BEEN PROSECUTED FOR THE
       GENERAL CRIME OF SEXUAL OFFENSE IN A PARENTAL
       ROLE SINCE THE CRIME OF INCEST SPECIFICALLY
       PROHIBITS INTERCOURSE WITH A STEPCHILD?

II.    DID THE TRIAL COURT ERR BY DENYING MR. DEAN‟S
       MOTIONS TO DISMISS THE CHARGE OF SEXUAL OFFENSE
       IN A PARENTAL ROLE DUE TO INSUFFICIENT EVIDENCE?

III.   DID THE TRIAL COURT COMMIT PLAIN ERROR BY
       INSTRUCTING THE JURY THAT A MINOR CHILD IS LESS
       THAN 18 YEARS OF AGE FOR THE OFFENSE OF SEXUAL
       OFFENSE IN A PARENTAL ROLE?

IV.    DID THE TRIAL COURT ERR IN SENTENCING MR. DEAN FOR
       HIS CONVICTIONS OF SEXUAL OFFENSE IN A PARENTAL
       ROLE AND INCEST AS THIS CONSTITUED DOUBLE
       PUNISHMENT FOR THE SAME OFFENSE?
                                       2


                      STATEMENT OF THE CASE

      The Defendant, James Alton Dean, was charged with second-degree

rape, attempted second-degree sex offense, sex offense in a parental role and

felony incest on or about October 25, 2002. Mr. Dean was indicted on these

charges on January 21, 2003. Mr. Dean pled not guilty and was tried by a

jury during the June 9 and June 21 through June 29, 2004 Criminal Sessions

of Superior Court for Guilford County, the Honorable Henry Frye, Jr., Judge

presiding.   Mr. Dean was acquitted of the charges of second-degree rape

and attempted second-degree sex offense. Mr. Dean, however, was found by

the jury to be guilty of sex offense in a parental role and of incest. Mr. Dean

was found by the trial court to be a Level I Offender and was sentenced on

July 6, 2004 for his conviction of sex offense in a parental role to a

presumptive active term of imprisonment in the North Carolina Department

of Correction of 25 months minimum, 39 months maximum. The trial court

also sentenced Mr. Dean to a presumptive active term of imprisonment of 16

months minimum, 20 months maximum for his incest conviction; this

sentence is to run at the expiration of his active term of imprisonment for the

sex offense in a parental role sentence.

      Mr. Dean gave Notice of Appeal to the North Carolina Court of

Appeals in open court on July 6, 2004.
                                     3


  STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

      This is an appeal from the final judgment of the superior court

pursuant to N.C.G.S. § 7A-27(b).

                     STATEMENT OF THE FACTS

      The primary witness for the State was the prosecuting witness, April

Champagne Risener. Other witnesses for the State‟s case-in-chief were

Debra Smith who is the mother of Risener‟s boyfriend at the time of the

alleged incident, James Patrick Hughes, formerly of the Greensboro Police

Department, Detective C.E Williams of the Greensboro Police Department,

Officer J.T. Reynolds of the Greensboro Police Department, forensic nurse

Connie White Harris, forensic serologist Jennifer Ewell of the State Bureau

of Investigation and forensic DNA analyst Christopher Parker of the State

Bureau of Investigation.

      Mr. Dean testified in his defense. Other witnesses for Mr. Dean were

Gary B. Goodman, Esquire, Risener‟s maternal grandmother Ann Tibbs,

Detective Ruth Hines of the Greensboro Police Department, Risener‟s

mother and Mr. Dean‟s wife, Laurie Tibbs Dean, and Mr. Dean‟s stepson,

Colt Weston Risener.

      The State presented rebuttal evidence through the testimony of Wendy

Grubb and Carlos Samayoa of the Guilford County EMS.
                                       4


I.    THE STATE’S EVIDENCE

A.    Testimony of April Risener.

      April Champagne Risener is Mr. Dean‟s stepdaughter. V.I Tpp. 103-

4. Her mother is Laurie Tibbs Dean. V.I Tp. 814. Risener has an identical

twin sister, Kelly, and two younger siblings, Colt Risener and Crystal

Hegwood. V.I Tp. 105; V.I Tp. 84. At the time of the alleged offenses she

was seventeen years old. V.I Tp. 114. Risener did not remember if she was

still in school or what grade that she was in on this date, (v.I tp. 115), but

recalled in her later testimony that she had been in tenth grade at the time.

She did not finish high school. V.I Tp. 132.       At the time of the alleged

incident, Risener and her sister Kelly were on probation for filing false

police reports regarding prior allegations of rape against Mr. Dean, which

they had recanted through affidavits prepared by Attorney Gary B.

Goodman.1 V.I Tp. 123; V.I Tp. 132; V.I Tp. 153. Risener claimed that her

mother kicked the twin sisters out of the home on their eighteenth birthday.




1
  Risener claimed her mother convinced the girls to recant their allegations
in order get Mr. Dean out of jail; in return Mrs. Dean agreed to let the girls
move out of the residence. V.I Tp. 122. The girls were criminally charged
but their mother let them go on vacation with their boyfriends as a reward
for recanting. V.I Tp. 124.
                                       5


V.I Tp. 129. At the time of Mr. Dean‟s trial, Risener was living with her

fiancé who is the father of her son.2 V.I Tp. 201.

        On May 30, 2002 Risener and Kelly wanted to go and live with their

boyfriends at Debra Smith‟s home. V.I Tp. 137. Risener testified that Mr.

Dean came home from work “really early … about 2, 2:30 [p.m.].” Mr.

Dean told Risener over and over to go put on shorts or a short skirt and go

meet him in the laundry room and wait for him there. Risener kept telling

him “no,” but Mr. Dean continued telling her throughout the day to go put

on the shorts or a short skirt. Risener claimed that she was concerned by

this, (v.I tp. 115), but she did not leave the home and tell anyone, including

her neighbors or her grandmother about Mr. Dean‟s inappropriate demands.

V.I Tpp. 168-9; V.I Tp. 188; V.I Tpp. 195-6. Instead, Risener went in the

living room and tried to stay as much in the open as possible, thinking that

Mr. Dean would leave her alone. Her twin sister, Kelly was also in the

living room, while Mr. Dean was walking around the house.

        In spite of Mr. Dean‟s purported inappropriate demands, (v.I tpp. 168-

9), Risener nonetheless left the living room with intentions of taking a

shower. V.I Tp. 116. Once Risener went inside the bathroom, Mr. Dean

came in behind her and shut the door. Risener asked him to leave and told


2
    Her fiancé was not her boyfriend on May 30, 2002. See V.I Tpp. 257-8.
                                    6


him that she was going to take a shower. Mr. Dean demanded that Risener

take off her pants. When Risener refused, Mr. Dean said “do it now.”

Risener took her pants off. Mr. Dean then told her to take off her panties.

When Risener refused, Mr. Dean told her “I said do it now” in a very

forceful tone. Risener complied because she was scared of him. V.I Tp.

118. She admitted, however, that she was not afraid of Mr. Dean when she

made previous allegations of sexual misconduct. V.I Tp. 177.

      Mr. Dean then pushed Risener over and tried to stick his penis in her

“rear end.” She kept trying to slap at him from behind but could not reach

Mr. Dean. Mr. Dean then put his penis in her vagina. Mr. Dean was hurting

Risener and she told him to stop. Risener kept trying to slap at Mr. Dean,

but the more she slapped, the harder Mr. Dean grabbed onto her. Although

Kelly was home and could have heard her in the bathroom, (v.I tp. 171),

Risener did not yell out when Mr. Dean came into the bathroom and raped

her. V.I Tp. 173; V.I Tp. 117.

      When Mr. Dean “finished” he grabbed a towel and wiped himself off.

Mr. Dean told Risener to wipe herself off, and pretended to clean up. Mr.

Dean took the towel. Risener put her clothes back on. V.I Tp. 117. Mr.

Dean told Risener “[d]on‟t worry. I didn‟t squirt in you.” V.I Tpp. 117-8.

Mr. Dean told Risener not to tell her mother or she would kill him. Mr.
                                       7


Dean acted like nothing happened and he was “being way, way, way too

friendly.” Risener left the bathroom; Mr. Dean remained and took a shower.

        After Risener left the bathroom, she told Kelly what had happened

and that she was going to take a shower. Risener claimed that she felt Mr.

Dean‟s “sperm” running out of her panties, so she pulled down her pants and

underwear to show Kelly. Kelly told her to keep her clothes on and go to the

hospital. Risener asked Mr. Dean to borrow his cell phone to call her friend

Josh. Mr. Dean refused unless he was allowed to listen. Risener declined,

(v.I tp. 119), because she was actually going to call the police. V.I Tp. 120.

Risener instead retrieved a cell phone that had been given to her and Kelly

by Debra Smith.3 Risener went into the bedroom closet and called Smith to

tell her that she had been raped and to ask what to do. Mrs. Smith told her to

call her probation officer. After Risener could not reach her probation

officer at his office or at his home, she heard Mr. Dean walking through the

house. Consequently, she went to the laundry room and called the police.

After calling the police, Risener grabbed her purse, went into the carport and

started crying. V.I Tp. 120.

        When Mrs. Dean came home, she apparently went inside and

something was said. Risener could hear Mr. Dean yelling through the house


3
    The twins kept this cell phone hidden in their room. V.I Tp. 192.
                                      8


as he was coming outside. Risener left the carport and started walking

toward the yard because she was scared of Mr. Dean. When Mr. Dean came

outside, Risener told him that she had called the police. Although it was

approximately 7:00 p.m., Mr. Dean supposedly told Risener that she was on

probation and not allowed to leave the premises after 8:00. V.I Tp. 126.

Risener ran up to the ambulance when it arrived and begged for help. Mr.

Dean kept threatening to call her probation officer to tell him that she was

leaving. V.I Tp. 127. Risener then was taken to the hospital where a rape

kit was performed. V.I Tpp. 128-9.

      Risener subsequently wrote a letter to Detective Williams demanding

that he leave her and her family alone, accused Williams and social worker

Stacy Taylor, (v.I tp. 235), of lying to and threatening her family. She also

blamed Williams and Taylor for causing the break-up with her boyfriend.

V.I Tp. 234. The letter stated “[w]hen I was young, I cried wolf many times,

and I‟m sure you did too.” V.I Tp. 234.     Risener testified that the phrase

“crying wolf” meant “[s]aying something that is not true over and over.” V.I

Tp. 237. Although Risener claimed in her letter that she was not put up to

writing it, (v.I tp. 238), she claimed that her grandmother told her what to

write. V.I Tp. 239.
                                     9


B.    Testimony of Debra Smith.

      Debra Smith testified that her sons, Christopher and Timothy, had

been dating the Risener twins. V.I Tpp. 257-8. The twins had wanted to

move into Smith‟s home. Smith had discussed with her husband about

having the girls move in with her while her sons lived with her husband. V.I

Tpp. 271-2.

      Smith had given the girls a cell phone to use for emergency purposes

as she was concerned for their safety. One of the girls, who she believed

was Kelly, called her and said that Risener had been raped. Smith could

hear crying and screaming. Smith told her to call her probation officer.

Risener called back hysterical4 and said she could not get the probation

officer; Risener said “James raped me. What should I do?” Smith told her

to call 911. V.I Tp. 258.

C.    Testimony of Law Enforcement and Emergency Personnel.

      1. Testimony of James Hughes.

      James Patrick Hughes, formerly of the Greensboro Police Department,

responded to the Dean residence on May 30, 2002 at approximately 7:00

p.m. V.I Tpp. 63-4.     Upon his arrival, Hughes observed a parked EMS

vehicle with the back doors open; April Risener was being escorted into the

4
  Smith admitted that she thought Risener was distraught even though she
had only spent a day and a half with Risener prior to May 30th. V.I Tp. 262.
                                    10


back of the ambulance. Risener was physically upset, had a blanket around

her shoulders and was crying. V.I Tp. 64. Risener told Hughes at that time

that she had been raped in the bathroom of the residence; her sister, Kelly,

was present. V.I Tp. 65. The incident was alleged to have occurred around

3:00 p.m. V.I. Tp. 66.

      Hughes went to women‟s Hospital to conduct an interview with

Risener.   Risener was “far calmer” and “was in control” during this

interview. V.I Tp. 71. She did not mention that there were any weapons in

the Dean residence. V.I Tp. 79. Hughes did not observe any visible signs of

injury to Risener. V.I Tp. 76.

      2. Testimony of Detective Williams.

      Detective C.E. Williams of the Greensboro Police Department

interviewed Risener. V.I Tp. 463. He also interviewed Kelly while she was

in jail for communicating threats to Mrs. Dean. V.I Tpp. 508-9.

      Risener told Williams that she was watching television between 5 and

6 p.m. when Mr. Dean came in and told her to put on some short shorts or a

skirt and meet him in the laundry room. This had happened before when

Mr. Dean “wanted to get some.” V.I Tp. 463. Risener ignored Mr. Dean

and a short time later went to the bathroom. Mr. Dean came in behind her

and shut the door. Mr. Dean told her several times to take her pants off and
                                     11


she refused. Mr. Dean became angry. Risener was scared of Mr. Dean and

did as she was told. Risener pulled her pants and panties just below her hips

and apparently removed her pants and panties completely from one leg. Mr.

Dean grabbed her hips from behind and made her lean over the sink.

Risener grabbed the sink with both hands so that she would not fall. Mr.

Dean then tried to anally penetrate her but was unsuccessful. Mr. Dean then

penetrated her vaginally from behind. Mr. Dean also placed one hand on her

buttocks and the other hand on her hip. She tried to slap at Mr. Dean two to

three times to get him to stop. V.I Tp. 464. Risener whispered to Mr. Dean

to “stop it”; Mr. Dean, however, told her several times “SHH.” Risener did

not scream for help because she was scared of what Mr. Dean might do to

her. Mr. Dean had intercourse with her from two to five minutes. Risener

was pretty sure that Mr. Dean started to ejaculate inside of her, but that he

“pulled out” and finished masturbating into a towel that he retrieved from

the linen closet. Mr. Dean told Risener “[d]on‟t worry. I didn‟t squirt in

you.” Mr. Dean then handed her the towel he had ejaculated in so that she

could clean up. Risener pretended to clean up. Mr. Dean took a shower and

Risener left the bathroom. V.I Tp. 465
                                     12


      Williams agreed that there were inconsistencies between the stories

given by the twins, (v.I tp. 509), and he had told Kelley that he thought one

of them was lying. V.I Tp. 529. The inconsistencies included:

    Risener told Kelly that she had to bend over and grab the bathtub and
     that Mr. Dean leaned against the bathroom sink. Risener later
     changed her story and stated that she was bent over grabbing the sink
     and Mr. Dean was leaning against the door so that no one could get in.
     V.I Tp. 510.

    Risener told Kelly that Mr. Dean referred to the sexual act as “doggie
     style”, yet Risener did not mention this statement to Williams. V.I
     Tp. 511.

    Neither girl mentioned that they had a cell phone that was given to
     them by Smith and hidden in their room. V.I Tp. 499; V.I Tp. 513.

    Kelly told Williams that after her mother came home that Risener
     again asked Mr. Dean to use the phone, i.e., the 911 call was not made
     until after Mrs. Dean arrived at home. V.I Tp. 514.

    Neither girl told Williams about a loaded gun in the house. V.I Tp.
     497.

    Kelly said that Risener never called her probation officer. V.I Tp.
     515.

    Kelly stated that she saw Mr. Dean go into the bathroom while
     Risener was still in the bathroom; Kelly began banging loudly on the
     door and could hear Mr. Dean whispering to be quiet and she heard
     crying. V.I Tp. 525.

    Risener later came out of the bathroom and was visibly upset; both
     girls went outside where Kelly encouraged Risener to call the police.
     V.I Tp. 526.
                                     13


      Mr. Dean was interviewed by Williams on June 5th, 2002. Mr. Dean

stated that he did not rape Risener and was willing to submit to a blood test.

V.I Tp. 462.

      Williams did not cause to have Mr. Dean arrested until he spoke with

the District Attorney‟s Office because Risener had previously made

allegations of sexual abuse and recanted. V.I Tpp. 520-1.

      3. Testimony of Officer Reynolds.

      Officer J.T Reynolds of the Greensboro Police Department is a crime

scene investigator. V.I Tp. 535. Reynolds briefly spoke with Risener at the

hospital. V.I Tp. 537. She told Reynolds that Mr. Dean came into the

bathroom behind her and had sexual intercourse. V.I Tpp. 537-8.

      4. Testimony of EMS personnel.

      Wendy Grubb was a field training officer with Guilford County EMS

on May 30, 2002. When she arrived at the Dean residence, Risener was in

the back of the ambulance with a paramedic, Carlos Samayoa. V.I Tp. 971.

Risener appeared to be quiet and withdrawn. V.I Tp. 972. Grubb recalled

that Risener said that she was held down and raped. V.I Tp. 973.

      When Carlos Samayoa arrived at the Dean residence on May 30 th,

2002 two girls, one being Risener, ran out of the house and were crying.

Risener stated that she had been raped. Mr. Dean came outside and started
                                     14


cursing. The other girl stated that Mr. Dean had a gun. V.I Tp. 991.

Risener told Samayoa that she still had semen inside of her. V.I Tp. 992.

He recalled Risener specifically using the term “semen.” V.I Tp. 998.

D.    Testimony of Forensic Experts.

      1. Testimony of forensic nurse Harris.

      Connie White Harris, a forensic nurse for Moses Cone Health System,

(v.I tp. 280), was qualified as an expert in the field of forensic nursing and

evaluation of alleged victims of sexual abuse. V.I Tpp. 285-6. Harris first

came into contact with Risener at Women‟s Hospital on May 30 th. Risener

was in a room wrapped up in a blanket and lying in a fetal position. She

appeared to be distraught. V.I Tp. 286.

      A physical examination of Risener revealed five tears to the posterior

fourchette. The cervix was very reddened. V.I Tp. 294. Harris indicated

that tearing is frequently found in cases of nonconsensual intercourse. V.I

Tp. 295. In Harris‟ opinion the reddening to the cervix would have been

caused by battering against the cervix with the penis. V.I Tp. 296. No

bruises were observed, however, on Risener‟s hips, (v.I tp. 317), nor were

any injuries observed to Risener‟s anus. V.I Tp. 318. No internal tears were

observed. V.I Tp. 333. Harris found no indication of sperm in Risener‟s

vagina, (v.I tp. 334), nor did she find evidence of semen on Risener‟s body
                                     15


when using a Woods Lamp. V.I Tp. 336. Harris agreed that it was possible

for the injuries observed to be self-inflicted. V.I Tpp. 344-5. In any event,

Harris opined that Risener demonstrated symptoms of rape or sexual assault

that were consistent with other sexual assault victims. V.I Tp. 312.

      Risener told Harris about the alleged rape, (v.I tpp. 292-4), and that

Mr. Dean had sexually assaulted her in the past. V.I Tp. 315.

      2. Testimony of forensic serologist Ewell.

      Special Agent Jennifer Ewell of the State Bureau of Investigation was

qualified as an expert in forensic serology. V.I Tp. 358. Testing of vaginal

swabs obtained from Risener revealed the presence of an occasional to

moderate amount of intact spermatozoa.5       V.I Tpp. 366-7; V. Tp. 369.

Testing of Risener‟s panties did not show the presence of sperm or semen.

V.I Tp. 370.

      3. Testimony of forensic DNA analyst Parker.

      Special Agent Christopher Parker of the State Bureau of Investigation

was qualified as an expert in forensic DNA analysis. V.I Tp. 415. Vaginal

swabs from Risener contained the DNA profile of Mr. Dean. V.I Tp. 427.




5
  This indicates that the sperm was deposited within 12 to 24 hours of the
sample being taken. V.I Tp. 366.
                                     16


II. MR. DEAN’S EVIDENCE

A.    Testimony of Mr. Dean.

      Mr. Dean testified that the twins wanted to go live with their

boyfriends in April and May of 2002. They were disrupting the family. V.I

Tp. 591.

      Mr. Dean was previously arrested for allegations of rape made by the

twins on March 24, 2002. V.I Tp. 602. Within a week of the girls recanting

and Mr. Dean moving back home, Kelly again accused him of rape. V.I

Tpp. 611-2. Mr. Dean, however, had been hospitalized for heart trouble at

the time of the alleged rape. V.I Tp. 621.

      On May 30, 2002, Mr. Dean had arrived home early from his work as

a surveyor because it was raining; he had left work around 2:00 p.m. V.I Tp.

636. All of the children were at home when he arrived. V.I Tp. 639. The

twins and Crystal were sitting on the couch watching television; Colt was in

his room playing video games.       Mr. Dean went into his bedroom and

watched television. V.I Tp. 642. Mr. Dean fell asleep and was wakened

around 5 p.m. when Risener touched his ankle. V.I Tp. 643. At around

5:30, Mr. Dean took a shower because he knew his wife would be home

from work at 6 p.m. and he wanted her to have hot water for a shower. V.I

Tp. 645. After showering, Mr. Dean went to his bedroom, (v.I tp. 659), got
                                     17


dressed and laid back down in bed. A few minutes later, Risener and Crystal

came into the bedroom; Colt was standing by the bedroom door. V.I Tpp.

664-5. Risener asked to use the phone; Mr. Dean told her to wait a few

minutes until her mother got home. V.I Tp. 665. Risener started to watch

television in Mr. Dean‟s room; he motioned for Risener and Crystal to leave

the bedroom. The girls left and did not return. Risener did not ask to use the

phone again. V.I Tp. 669.

      Shortly after Mrs. Dean arrived home, she informed Mr. Dean that

Risener said he raped her. He was furious. He went to the carport and told

Risener that she would go to prison if she persisted. V.I Tpp. 669-70.

Risener responded “You know you raped me. Why don‟t you tell the truth?

I‟ve got evidence. I‟ve got evidence. There‟s evidence to prove that you

done this. You‟re a liar.” Risener said she had “come dripping all in her

panties.” V.I Tp. 672.

      Mr. Dean denied that he ever touched or did anything of a sexually

inappropriate way with the twins. V.I Tp. 589. Mr. Dean also denied that

he told Risener to put on shorts or a short skirt and meet him in the laundry

room. V.I Tp. 657.

      Mr. Dean speculated that a sample of his semen must have come from

having sex with his wife the morning of May 30 th: Mrs. Dean did not like
                                        18


having him ejaculate in her before she went to work, (v.I tp. 680), so he

ejaculated into a towel. V.I Tp. 681.

B.    Testimony of Mrs. Dean.

      Laurie Tibbs Dean, who had been convicted of embezzlement, (v.I tp.

875), testified that the twins wanted to move in with their boyfriends. V.I

Tp. 816. The twins continually hounded her to let them move out, but Mrs.

Dean refused. V.I Tp. 817. The twins left Mrs. Dean‟s home on their

eighteenth birthday; Mrs. Dean did not, however, throw them out as Risener

had claimed. V.I Tp. 869.

      Prior to March 2002, the twins never accused Mr. Dean of sexual

misconduct. V.I Tpp. 818-9.     After Mr. Dean was arrested for the March

2002 allegations, the twins did not act like anything had happened. V.I Tp.

822. The twins later told Mrs. Dean that they were using drugs, (v.I tp. 824),

that they gotten mad at Mr. Dean and lied about being raped. Mrs. Dean

consequently took the girls to see Attorney Gary B. Goodman where

affidavits recanting the allegations were prepared and executed.6 V.I Tp.

815. Mrs. Dean denied coercing the girls into recanting and did not promise

the twins that they could move out if they recanted. V.I Tp. 831. Kelly also


6
 The charges against Mr. Dean were dismissed the day after the affidavits
were delivered to the Greensboro Police Department. V.I Tpp. 755-7.
                                      19


alleged that Mr. Dean raped her in April 2002. Mr. Dean, however, was in

the hospital at the time of the alleged rape. V.I Tp. 834.

       Mrs. Dean testified that Risener was lying about the May 30 th

incident. V.I Tp. 868. On that day, Mrs. Dean arrived home from work

between 6:15 and 6:30 p.m. Everything appeared fine at her home. V.I Tp.

838. Risener told Mrs. Dean that she had cleaned her room, but only the

closet had been cleaned. Risener asked to use the phone. V.I Tp. 839.

Risener did not say she was sexually assaulted by Mr. Dean and appeared

“bouncy and happy and had a big ol‟ smile on her face.” Mrs. Dean found

out that Risener had called the police when she was told that Risener was

crying on the front porch. V.I Tp. 845. Risener told her that Mr. Dean had

raped her. V.I Tp. 846. Mrs. Dean was not aware that the twins had gotten

a cell phone from Smith.7 V.I Tp. 841.

       Mrs. Dean testified as to how Mr. Dean‟s sperm apparently was

deposited in Risener‟s vagina:

     Mrs. Dean had sexual intercourse with her husband the morning of
      May 30th. V.I Tp. 849. Mr. Dean did not ejaculate inside of because
      she was going to work and did not want to have residue in her
      underwear. V.I Tp. 850. Mr. Dean wiped himself off with a towel.
      The towel was left on the bed when Mrs. Dean left for work. V.I Tp.
      851. When Mrs. Dean arrived home from work, the towel was gone


7
  Mrs. Dean testified that there was not enough room for the twins to hide a
cell phone and charger behind the dresser. V.I Tp. 847.
                                     20


        and the room was clean. V.I Tp. 853. Risener told Mrs. Dean that she
        had cleaned the room. V.I Tp. 854.

      After the police had left her home on May 30 th, Mrs. Dean found a
       bottle of “Soft Shave” women‟s shaving cream hidden inside the tube
       of a roll of toilet paper; she had not seen anything like this in the
       house before. V.I Tpp. 860-3.

      When Risener returned from the hospital, Mrs. Dean saw Risener run
       into the bathroom and shut the door. It appeared that Risener was
       looking for something. V.I Tp. 866. Risener went back into her
       bedroom and told Kelly that she could not “find it.” Kelly told
       Risener to go back in the bathroom and that she had better find it.
       Risener went into the bathroom three times looking for something.
       V.I Tp. 867.

C.      Testimony of Ann Tibbs.

        Ann Tibbs is the maternal grandmother of Risener. V.I Tp. 774. Mr.

Dean had from time to time lived with Tibbs due to allegations of sexual

misconduct made by the twins. V.I Tp. 775. They had lied to her several

times. She did not believe their allegations that Mr. Dean molested them.

V.I Tp. 776.

        Mrs. Dean called Tibbs in May 2002 and told her “your

granddaughters are doing it again.” Tibbs understood this to mean the twins

had made allegations of rape again. V.I Tp. 778. Shortly after 7 p.m., Mrs.

Dean brought Colt and Crystal to her home. V.I Tp. 779. Tibbs returned to

the Dean residence with her daughter.
                                     21


      Tibbs accompanied Risener to the hospital in the ambulance. V.I Tp.

781. After Risener came out of the hospital examination room, she talked

with Kelly. The girls “high-fived” each other and said “We got him.” V.I

Tp. 783. Both girls were laughing at the time. V.I Tp. 784. During the trip

back home in a police vehicle, the twins were whispering to each other. V.I

Tp. 786.

D.    Testimony of Colt Risener.

      Colt Weston Risener, Mr. Dean‟s stepson, was home with his siblings

on May 30, 2002.      V.I Tp. 902.    The twins were around each other

whispering a lot. This was unusual as they were not around each other that

much. Colt indicated the twins fought a lot. V.I Tp. 903.

      Mr. Dean arrived home around 3:00 p.m. Colt saw him go to his

bedroom. Colt did not have the music playing on his video game because it

ruined his concentration. V.I Tp. 906. Risener at one point was in Mr.

Dean‟s bedroom and asked to use the phone. Mr. Dean told Risener to wait

until her mother got home. The phone then rang and Mr. Dean motioned the

children out of the bedroom. V.I Tp. 910.

      Colt could see half of the bathroom door while he was playing his

video games. V.I Tp. 907. It was Colt‟s opinion that Mr. Dean and Risener

could not have been in the bathroom at the same time. V.I Tp. 913. Colt did
                                      22


not see Risener and Mr. Dean go into the bathroom at the same time. Colt

did, however, see Mr. Dean go into the bathroom and heard him take a

shower. V.I Tp. 911. He also did not hear Risener call out for help nor did

she say that she had been sexually assaulted by Mr. Dean. V.I Tp. 913.

E.    Testimony of Detective Hines.

      Detective Ruth Hines of the Greensboro Police Department had been

assigned to Mr. Dean‟s previous case where he was charged with statutory

rape. V.I Tpp. 790-1. The Risener twins had made these allegations against

Mr. Dean. V.I Tp. 792. Attorney Goodman had delivered to Hines the

twins‟ affidavits recanting their allegations. In response to the affidavits,

Hines interviewed the twins; they indicated that the allegations were not

true. V.I Tp. 795. The twins consequently were charged with giving false

police reports, were found guilty and given three years of supervised

probation V.I Tpp. 798-9; V.I Tpp. 800-2.

      Hines was also involved in the investigation of allegations by Kelly

against Mr. Dean for sexual misconduct in April 2002. Mr. Dean, however,

was not charged . V.I Tp. 802.
                                     23


                               ARGUMENT

I.    MR. DEAN SHOULD NOT HAVED BEEN PROSECUTED FOR
      THE GENERAL CRIME OF SEXUAL OFFENSE IN A
      PARENTAL ROLE SINCE THE CRIME OF INCEST
      SPECIFICALLY PROHIBITS INTERCOURSE WITH A
      STEPCHILD.

                     Assignment of Error No. 8, Rp. 37.

      North Carolina General Statute Section 14-27.7(a) prohibits

intercourse with a minor residing in the home; an offender is punished as a

Class E felon. By necessary implication, a minor residing in the home

would include a stepchild. The prohibition against incest, N.C.G.S. § 14-

178(a), specifically proscribes intercourse with a stepchild. Furthermore,

N.C.G.S. § 14-178(b) provides for a range of punishment from a Class F

felony to a B1 felony based on the ages of the victim and offender.

      “Where there is one statute dealing with a subject in general and

comprehensive terms, and another dealing with a part of the same subject in

a more minute and definite way, the two should be read together and

harmonized … but, to the extent of any necessary repugnancy between them,

the special statute … will prevail over the general statute.” Krauss v. Wayne

County DSS, 347 N.C. 371, 378, 493 S.E.2d 428, 433 (1997). A specific

statute therefore controls over a general statute if the two cannot be
                                      24


reconciled. Clark v. Visiting Health Professionals, Inc., 136 N.C.App. 505,

508, 524 S.E.2d 605, 607 (2000).

      It appears that N.C.G.S. § 14-27.7 is a general criminal statute as it

broadly prohibits, inter alia, sexual intercourse between anyone “who has

assumed the position of a parent” and child and punishes all offenders as

Class E felons. North Carolina General Statute Section 14-178 is a specific

penal statute:       N.C.G.S. § 14-178(a) specifically proscribes sexual

intercourse between a stepparent and stepchild; N.C.G.S. § 14-178(b)

provides for a range of punishment tailored to the particular facts of the case,

i.e., the age of the victim and the offender.        The legislature, through

N.C.G.S. § 14-178, has dealt with “the same subject [sex with a child in the

home] in a more minute and definite way.” See Krauss, 374 N.C. at 378,

493 S.E.2d at 433.

      These two statutes cannot be reconciled. If a 45-year-old adult, such

as Mr. Dean, were convicted of incest for having intercourse with a 12-, 13-,

14-, or 15-year-old stepchild, he would be punished as a Class B1 felon.

N.C.G.S. § 14-178(b)(1).       Under operation of N.C.G.S. § 14-27.7(a),

however, the same conduct would be punished as a Class E felony. On the

other hand, if the stepchild is over 15 years of age, the adult would be

punished as a Class F felon for incest, N.C.G.S. § 14-178(b)(3), and still
                                      25


would be as a Class E felon for having intercourse while in a parental role.

N.C.G.S. § 14-27.7(a).

      Mr. Dean‟s conviction under N.C.G.S. § 14-27.7(a) cannot stand as

the specific requirements of the incest statute controls. Krauss, 374 N.C. at

378, 493 S.E.2d at 433; Clark, 136 N.C.App. at 508, 524 S.E.2d at 607. Mr.

Dean‟s conviction for sexual offense in a parental role should therefore be

vacated.

II.   THE TRIAL COURT ERRED BY DENYING MR. DEAN’S
      MOTIONS TO DISMISS THE CHARGE OF SEXUAL
      OFFENSE IN A PARENTAL ROLE DUE TO INSUFFICIENT
      EVIDENCE.

               Assignments of Error Nos. 6, 10 and 11, Rpp. 37-8.

      Mr. Dean moved the trial court to dismiss the charges at the close of

the State‟s evidence and after presentation of all evidence in his case. The

trial court denied these motions. V.I Tpp. 569-79; V.I Tp 1009. The trial

court, however, erred in failing to dismiss the charge of sexual offense in a

parental role as there was insufficient evidence that Risener was a “minor

child” under N.C.G.S. § 14-27.7(a).

      When a motion to dismiss is made, the trial court must determine if

there is substantial evidence to show the crime as charged may have taken

place and that the defendant could have been the perpetrator. The trial court

is to consider the State‟s evidence in a light most favorable to the State.
                                      26


State v. Suitt, 94 N.C.App. 571, 573, 380 S.E.2d 570, 571 (1989). In Mr.

Dean‟s case, the State was required to present substantial evidence that:

     Mr. Dean assumed the position of a parent in the home,

     Of the minor victim Risener, and

     Engaged in vaginal intercourse with the victim residing in the home.

Id.; State v. Oakley, ___ N.C.App. ___, 605 S.E.2d 215, 217 (2004);

N.C.G.S. § 14-27.7(a).

       North Carolina General Statute § 14-27.7 does not define the term

“minor”. “Minor” was defined at common law as a person under the age of

21. State v. Jackson, 280 N.C. 563, 570, 187 S.E.2d 27, 32 (1972). The

common law definition of “minor” was abrogated in 1971 by N.C.G.S. §

48A-1 and subsequently defined as a person who has not reached the age of

18 years by N.C.G.S. § 48A-2. Jackson, 280 N.C. at 570, 187 S.E.2d at 32.

The Supreme Court in Jackson, however, only noted that the common law

definition of “minor” had been abrogated and did “not consider in what

respects, if any, the words „minor‟ and „adult‟ as used in G.S. § 90-111(c)8

have been modified by the 1971 Act. Under any permissible definition, a

15-year-old boy is a minor and a 25-year-old man is an adult” for the


8
  N.C.G.S § 90-111(c) [now repealed] provided for an enhanced punishment
of a minimum of 10 years for the distribution of a controlled substance by
and adult to a minor.
                                     27


purpose of the criminal statute. Id., 280 N.C. at 570-1, 187 S.E.2d at 32.

Thus, the definition of what constitutes a “minor” in he context of penal law

has not been clearly established.

      Evidence that the legislature intended that a “minor” be under 16

years of age for the purpose of the sexual offense in a parental role statute

can be gleaned from a review of the penal statutes:

    The crime of taking indecent liberties with children, commonly
     referred to as “talking indecent liberties with a minor,” requires the
     child be “under the age of 16 years.” N.C.G.S. § 14-202.1(a).

    A person who is under the age of 16 years is guilty of the Class 1
     misdemeanor of taking indecent liberties with children where the
     improper act is taken with any child who is at least 3 years younger
     than the defendant. N.C.G.S. § 14-202.2(a).

    Any person who is 16 years of age or older and entices by means of a
     computer a person who is less than 16 years of age and at last 3 years
     younger than the defendant to meet for the purpose of committing a
     sex act is guilty of a Class I felony. N.C.G.S. § 14-202.3.

    If a person who is at least four years older than a 13-, 14- or 15-year-
     old person engages in sexual intercourse with that person, he is guilty
     of statutory rape. N.C.G.S. § 14-27.7A.

    Kidnapping occurs where the victim who is less than 16 years old is
     unlawfully confined, restrained or removed from one place to the
     other without consent of the parent or custodian of that person.
     N.C.G.S. § 14-39(a).

    A person who commits incest is guilty of a Class B1 felony where the
     child is 13-, 14- or 15-years old and the offender is at least four years
     older than the child. N.C.G.S. § 14-178(b)(1)b.
                                     28


    A person is guilty of a Class C felony if the person commits incest
     against a child who is 13-, 14- or 15-years old and the offender is
     more than four but less than six years older than the child. N.C.G.S. §
     14-178(b)(2).

    Any person 18 years or older who employs or permits any person
     under the age of 16 years to do or assist in doing any act or thing
     constituting an offense against public morality and decency is guilty
     of a Class I felony. N.C.G.S. § 14-190.6.

    Any person 18 years of age or older who knowingly disseminates to
     anyone under the age of 16 years any obscene material is guilty of a
     Class I felony. N.C.G.S. § 14-190.7.

    Anyone who commits a criminal offense on or after their sixteenth
     birthday is subject to prosecution as an adult. N.C.G.S. § 7B-1604(a);
     See N.C.G.S. § 7B-1501(7)(“delinquent juvenile” is less than 16 years
     of age but at least 6 years of age).

      The General Assembly, by specifically defining the term “minor” in

particular penal statutes shows further evidence of legislative intent that it

intended a “minor” to be a person less than 16 years of age for the purpose

of N.C.G.S. § 14-27.7(a):

    A “minor” is specifically defined for the purposes of N.C.G.S. §§ 14-
     190.14 [displaying material harmful to minors], 14-190.15
     [disseminating or exhibiting to minors harmful materials or
     performances], 14-190.16 [first degree sexual exploitation of a
     minor], 14-190.17 [second degree sexual exploitation of a minor], 14-
     190.17A [third degree sexual exploitation of a minor], 14-190.18
     [promoting prostitution of a minor], and 14-190.19 [participating in
     prostitution of a minor] as “[a]n individual who is less than 18 years
     old and is not married or judicially emancipated.” N.C.G.S. § 14-
     190.13.
                                     29


    A “disabled adult” is a person 18 years of age or older or an
     emancipated minor for the purposes of domestic abuse of disabled
     adults. N.C.G.S. § 14-32.3(d)(2).

    A “minor” is any person under the age of 18 years for the purpose of
     misdemeanor assault. N.C.G.S. § 14-33(d)(3).

The maxim expressio unius est exclusio alterius therefore applies here. See

Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303, 354 S.E.2d 495, 498

(1987). This means that the express mention of specific exceptions in a

statute implies the exclusion of all others. Id. By specifically defining

“minor‟ as being less than 18 years of age for these certain offenses, the

legislature intended that, for all other offenses, a “minor” is a person less

than 16 years of age.

      Since Risener was 17 years old at the time of the alleged intercourse

with Mr. Dean, she was not a “minor” for the purpose of the sexual offense

in a parental role law. The element of sexual intercourse with a minor could

not be established as a matter of law. See Oakley, ___ N.C.App. at ___, 605

S.E.2d at 217; N.C.G.S. § 14-27.7(a). The trial court therefore erred by

granting Mr. Dean‟s motion to dismiss the charge of sexual offense in a

parental role. See Suitt, 94 N.C.App. at 573, 380 S.E.2d at 571.
                                      30


III.   THE TRIAL COURT COMMITTED PLAIN ERROR BY
       INSTRUCTING THE JURY THAT A MINOR CHILD IS LESS
       THAN 18 YEARS OF AGE FOR THE OFFENSE OF SEXUAL
       OFFENSE IN A PARENTAL ROLE.

                     Assignment of Error No. 12, Rp. 38.

       The trial court gave the following jury instruction as to the charge of

sexual offense in a parental role:

       Ladies and gentlemen, lastly, the defendant has been charged with

feloniously engaging in vaginal intercourse with a minor over whom he had

assumed a position of a parent residing at the home. For you to find the

defendant guilty of this offense, the State must prove three things beyond a

reasonable doubt:

       First, that the defendant engaged in vaginal intercourse with April
       Risener…

       Second, that April Risener was a minor. A minor is any person who
       has not attained her eighteenth birthday or has otherwise been
       emancipated…

       And third, that the defendant has assumed the position of a parent in
       the home where April Risener resided…

       So if you find from the evidence beyond a reasonable doubt that on or
       about the alleged date, the defendant engaged in vaginal intercourse
       with April Risener, that at that time April Risener was less than
       eighteen years of age, and that she had not been emancipated, and
       was thereby a minor, and that the defendant had assumed the position
       of a parent in the home where April Risener resided, it would be your
       duty to retuned a verdict of guilty.
                                      31


V.II Tpp. 11-12; Rpp. 16-17 (emphasis added). The trial court committed

plain error by instructing the jury that a “minor” is less than eighteen years

of age for the purpose of the sexual offense in a parental role charge.

      Unlike several penal statutes where the legislature has defined

“minor” as a person being less than 18 years old, it has chosen not to

specifically define a “minor” in the context of N.C.G.S. § 14-27.7(a). The

General Assembly therefore intended a “minor” to be a person less than 16

years old. The trial court consequently erred by defining a “minor” as it did.

See Argument II above.

      Mr. Dean did not object to the trial court‟s instruction in which it

defined a “minor” as being less than 18 years old. The instructional error

therefore must be analyzed under the “plain error” rule. State v. Odom, 307

N.C. 655, 660-1, 300 S.E.2d 375, 378-9 (1983).

      Under the plain error standard, a defect in the jury instruction is

prejudicial if, considering the entire record, the error “had a probable impact

on the jury‟s finding of guilt.” Id. If the jury in Mr. Dean‟s case had been

properly instructed that “minor” is a person less than 16 years of age, and

that there was uncontroverted evidence that Risener was 17 years old at the

time of the offense, the jury probably would have found him not guilty of the
                                       32


offense of sexual offense in a parental role. See Id. At a minimum, Mr.

Dean is entitled to a new trial. Id.

IV.   THE TRIAL COURT ERRED IN SENTENCING MR. DEAN
      FOR HIS CONVICTIONS OF SEXUAL OFFENSE IN A
      PARENTAL ROLE AND INCEST AS THIS CONSTITUED
      DOUBLE PUNISHMENT FOR THE SAME OFFENSE.

                      Assignment of Error No. 9, Rp. 37.

      The trial court sentenced Mr. Dean to consecutive, presumptive active

sentences of 25 months minimum, 39 months maximum and 16 months

minimum, 20 months maximum for his convictions of sex offense in a

parental role and incest, respectively. Rpp. 21-24. Both convictions were

for engaging in intercourse with April Risener on May 30, 2002. See Rpp.

8-9. The consecutive sentences imposed on Mr. Dean for what the jury

found to be a single act of intercourse subjected him to double punishment,

which is prohibited under the double jeopardy clause of the Fifth

Amendment to the United States Constitution and the law of the land clause

of Article I, § 19 of the North Carolina Constitution.

      Both the Fifth Amendment to the United States Constitution and

Article I, § 19 of the North Carolina Constitution prohibit multiple

punishments for the same offense absent clear legislative intent to the

contrary. Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct 673, 678 (1983);

State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987); State v.
                                      33


Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39 (1986). Where a single

criminal transaction constitutes a violation of more than one criminal statute,

the test to determine of the elements of the offenses are the same is whether

each statute requires proof of a fact which the other does not. Blockburger

v. United States, 284 U.S. 299, 304, 52 S.Ct 180, 182 (1932); Etheridge, 319

N.C. at 50, 352 S.E.2d at 683. Each offense must include an element not

common to the other. State v. Hoover, 89 N.C.App. 199, 208, 365 S.E.2d

920, 926 (1988).

      North Carolina General Statute Section 14-27.7, Intercourse and

sexual offenses with certain victims, provides in pertinent part:

             (a) If a defendant who has assumed the position of a parent in
             the home of a minor victim engages in vaginal intercourse …
             with a victim who is minor residing in the home … the
             defendant is guilty of a Class E felony.

North Carolina General Statute Section 140-178, Incest, provides in

pertinent part:

             (a) A person commits the offense of incest if the person
             engages in carnal intercourse with the person‟s …stepchild.

      The crime of sexual offense in parental role requires a finding that the

defendant had:

    (1) assumed the role of a parent in the home;

    (2) of a minor victim; and
                                      34


    (3) engaged in vaginal intercourse with the victim residing in the
     home.

See Oakley, ___ N.C.App. at ___, 605 S.E.2d at 217 (employing “sexual

act” in the definition). Incest has three elements:

     (1) the defendant engaged in sexual intercourse;

     (2) with his stepchild; and

     (3) the defendant knew of the relationship at the time he engaged in
      sexual intercourse with that person.

State v. Collins, 44 N.C.App. 27, 29, 259 S.E.2d 802, 803 (1979).          A

“stepchild” is defined as “a child of one‟s wife or husband by a former

marriage.”    Merriam-Webster Online Dictionary, www.m-w.com.            The

familial relationship of a stepchild and stepparent therefore includes the

assumption of the role of a parent in the home.

      The only difference between the crimes of incest and sexual offense,

i.e., vaginal intercourse, in a parental role is that N.C.G.S. § 14-27.7(a)

additionally requires that the victim be a minor living in the defendant‟s

home. Under a Blockburger analysis, the crime of incest is not a distinct and

separate offense from sexual offense in a parental role where the offense is

vaginal intercourse.

      Clearly, Risener is the stepchild of Mr. Dean as he was married to

Risener‟s mother, Laurie Dean, and he was aware of his familial relationship
                                      35


to Risener.   The jury necessarily found by its verdicts that Mr. Dean

committed one act of sexual intercourse with Risener on May 30, 2002.

This was, for the purpose of this argument, sufficient to convict Mr. Dean of

incest. See N.C.G.S. § 14-178. The additional facts necessary for the jury to

convict Mr. Dean of sexual offense in a parental role was that Risener was a

minor living in the Dean home. See N.C.G.S. § 14-27.7(a). Incest therefore

is a lesser-included offense of vaginal intercourse in a parental role, since

incest requires no proof beyond that required for conviction of engaging in

vaginal intercourse while in a parental role. See Brown v. Ohio, 432 U.S.

161, 164-6, 97 S.Ct. 2221, 2225-6 (1977)(joyriding is a lesser-included

offense of larceny); Etheridge, 319 N.C. at 50, 352 S.E.2d at 683.

      The crime of incest is a lesser-included offense of the crime of vaginal

intercourse in a parental role under N.C.G.S. § 14-27.7(a). Mr. Dean‟s

sentence for the incest conviction violates the constitutional prohibition

against double jeopardy and should be arrested.

                               CONCLUSION

      For the reasons set forth herein, Mr. Dean is entitled to have the

judgment arrested for his conviction of sexual offense in a parental role

since he was also convicted of incest: The incest statute is a specific statute

that controls over the general statute of sexual offense in a parental role. Mr.
                                      36


Dean‟s conviction for sexual offense in a parental role should be vacated as

there was no evidence that he had intercourse with a minor. The trial court

also plainly erred by instructing the jury that a minor is a person who is less

than 18 years old for the purpose of the sexual offense in a parental role

charge.   At a minimum, Mr. Dean is entitled to be resentenced since

punishment for the crimes of sexual offense in a parental role and incest

which arise from one alleged act constitute double jeopardy.

      Respectfully submitted, this the _____ day of July, 2005.



                          ______________________________
                          Brian Michael Aus
                          PO Box 1345
                          Durham, NC 27702
                          (919) 688-3704

                          ATTORNEY FOR DEFENDANT-APPELLANT
                                     37


   CERTIFICATE OF COMPLIANCE WITH N.C.R.App.P. 28(j)(2)

      Undersigned counsel hereby certifies that this brief is in compliance
with N.C.R.App.P. 28(j)(2) in that it is printed in 14 point Times New
Roman font and contains no more than 8750 words in the body of the brief,
footnotes and citations included, as calculated by the word-processing
software used to prepare the brief, Microsoft Word.




                                _______________________________
                                Brian Michael Aus



              CERTIFICATE OF FILING AND SERVICE

       Undersigned counsel hereby certifies that he filed the original of the
foregoing brief by mailing it this day to the Clerk of the Court of Appeals,
and that he has served the foregoing brief upon all parties to the appeal by
mailing a copy thereof by United States Mail, first class postage affixed
thereto to counsel for the State of North Carolina:

      Anne M. Middleton
      Assistant Attorney General
      PO Box 629
      Raleigh, NC 27602-0629.


      This the ______ day of July, 2004.




                                _____________________________
                                Brian Michael Aus

				
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