State v. Dew

738 S.E.2d 215, 225 N.C. App. 750, 2013 WL 791597, 2013 N.C. App. LEXIS 228
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 2013
DocketNo. COA12-642
StatusPublished
Cited by18 cases

This text of 738 S.E.2d 215 (State v. Dew) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dew, 738 S.E.2d 215, 225 N.C. App. 750, 2013 WL 791597, 2013 N.C. App. LEXIS 228 (N.C. Ct. App. 2013).

Opinion

ERVIN, Judge.

Defendant John Earl Dew, Jr., appeals from judgments entered based upon his convictions of six counts of taking indecent liberties with a child stemming from conduct he allegedly engaged in with two sisters, V.M. and B.M.1 On appeal, Defendant argues that the trial court committed plain error by allowing Angela M. to testify that she believed Becky and Violet, who are her daughters; committed plain [752]*752error by allowing Detective Tracy Curry of the Cleveland County Sheriffs Department to offer expert testimony vouching for Becky and Violet’s credibility; erred by excluding evidence that Defendant had cooperated with investigating officers; and erred by allowing Carol Hollandsworth to testify as an expert and to vouch for Becky and Violet’s credibility. In addition, Defendant contends that, to the extent that any of his substantive challenges to the trial court’s judgments were not properly preserved for appellate review, he is entitled to relief on ineffective assistance of counsel grounds. After careful review of Defendant’s challenges to the trial court’s judgments in light of the record and the applicable law, we conclude that Defendant is not entitled to any relief from the trial court’s judgments.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

Becky, who was born in 1995, was sixteen years old at the time of trial. Her sister, Violet, was born in 1993 and was eighteen at the time of trial. Defendant, who was married to their mother’s sister and who lived with his wife and three children in Casar, was Becky and Violet’s uncle.

Defendant began molesting Becky and Violet around 2001 and continued to do so until 2006. The sexual abuse of which Defendant was accused usually occurred at family gatherings held at Defendant’s home; however, Defendant was also accused of abusing Becky and Violet at other times when he was alone with one or the other of them.

Becky testified that Defendant had sexually molested her about fifty times, beginning when she was five or six years old and continuing until she was twelve. The abuse that Becky described consisted of Defendant rubbing her vagina with his hands and forcing her to touch his penis. Defendant usually touched Becky during nighttime games of hide-and-seek, during which she would hide in Defendant’s yard away from the other children. Becky also recalled an incident that occurred during a family vacation to Hershey, Pennsylvania, when Defendant gave her a piggyback ride and tried to rub her vagina while carrying her on his back. On another occasion, Defendant sat Becky on his lap and made her watch a pornographic video, in which a child performed fellatio, and asked Becky if she wanted to do that to him. During one family gathering on the Fourth of July, Defendant sat [753]*753Becky on his lap to watch fireworks. While she was on his lap, Defendant made her put her hand inside his pants and guided her hand up and down his penis. Becky thought she was the only one who was subjected to this abuse.

Violet testified that Defendant began molesting her when she was six or seven years old. Like Becky, Violet recalled family gatherings held at Defendant’s house at which she and the other girls would play hide and seek. During these games, Defendant would put his hand inside Violet’s pants and move his finger back and forth on her vagina. According to Violet, Defendant touched her in this manner on ten to twenty different occasions. On one occasion, Defendant rubbed Violet’s vagina so much that she developed a rash there.

Violet recalled several other instances during which she was subjected to sexual abuse by Defendant as well. When she was six or seven years old, Defendant let her sit on his lap and drive his truck. As she drove, Defendant put his hand inside Violet’s pants and rubbed his finger against her vagina until they arrived at his house. Defendant also touched Violet while giving her a piggyback ride on two occasions, one of which occurred in Hershey and the other of which occurred at Defendant’s home. In addition, Violet recalled seeing a screensaver on Defendant’s computer depicting the silhouette of a female performing fellatio. Once, while Violet was alone with Defendant at his house, Defendant began tickling her. After grabbing her ankle and jerking her up so that she was looking up at his stomach and pelvic area, Defendant asked Violet to put her hand inside his pants. After Violet failed to make any response to this inquiry, Defendant took her hand and put it in his pants, at which point his breathing got heavy and he said that “it was okay.”

When she reached the fourth or fifth grade, Violet told Defendant to stop touching her, an instruction with which he complied. Several years later, Violet told a friend that Defendant had abused her when she was younger. About six months later, after watching a television program with her mother about victims of child molestation, Violet went to pick her sister up from basketball practice. After becoming very upset, Violet told her sister that Defendant had molested her as a child. In response, Becky told Violet that she had been abused by Defendant as well. Upon returning home, both girls told their mother, who reported the incidents to Detective Curry.

Carol Hollandsworth, a family therapist, provided counseling to both Violet and Becky. After describing Violet and Becky’s mental [754]*754states, Ms. Hollandsworth testified that both children behaved in a manner that was consistent with symptoms exhibited by children who had been sexually abused.

2. Defendant’s Evidence

Defendant’s three children testified that the children in Defendant’s extended family only played hide-and-seek a few times and that Defendant rarely played hide-and-seek with them. During family gatherings, the adults, including Defendant, usually stayed together while the children played separately. None of Defendant’s children recalled seeing anything suspicious about the manner in which Defendant interacted with Becky and Violet or ever heard Violet and Becky claim to have been molested.

Defendant acknowledged having hosted family gatherings at his home and admitted that he had played hide-and-seek with the girls on one occasion when they were younger. In addition, Defendant admitted that he had given both Violet and Becky multiple piggyback rides. Although he had pornographic materials in his home, Defendant denied having ever shown such materials to Violet and Becky and repeatedly denied having ever molested either child.

B. Procedural History

On 12 January 2011, the Cleveland County grand jury returned bills of indictment charging Defendant with three counts of taking indecent liberties with a minor involving acts committed against Violet and three counts of taking indecent liberties with a child involving acts committed against Becky. The charges against Defendant came on for trial before the trial court and a jury at the 8 December 2011 criminal session of Cleveland County Superior Court. On 13 December 2011, the jury returned verdicts convicting Defendant as charged.

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Cite This Page — Counsel Stack

Bluebook (online)
738 S.E.2d 215, 225 N.C. App. 750, 2013 WL 791597, 2013 N.C. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dew-ncctapp-2013.