{ "id": 8958549, "name": "STATE OF NORTH CAROLINA v. FREDERICK LEON DUNSTON", "name_abbreviation": "State v. Dunston", "decision_date": "2003-12-02", "docket_number": "No. COA02-1634", "first_page": "468", "last_page": "474", "citations": [ { "type": "official", "cite": "161 N.C. App. 468" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "83" }, { "page": "83", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "567 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "356 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511282 ], "year": 2002, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0150-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "890-91", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "304", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "297 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "307 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561315 ], "year": 1982, "pin_cites": [ { "page": "231-32" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0224-01" ] }, { "cite": "308 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "309 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762743 ], "year": 1983, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0465-01" ] }, { "cite": "424 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "333 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544442 ], "year": 1993, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0172-01" ] }, { "cite": "264 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "299 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575659 ], "year": 1980, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0597-01" ] }, { "cite": "541 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "489" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440617 ], "year": 2000, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0177-01" ] } ], "analysis": { "cardinality": 748, "char_count": 16199, "ocr_confidence": 0.772, "pagerank": { "raw": 7.676534437474734e-08, "percentile": 0.45249645828772256 }, "sha256": "e8aca4cbb8ee413676dd3a0a6a9021e7237becd9f800bf1487b83a50bd268892", "simhash": "1:632f203a52e9adfb", "word_count": 2649 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FREDERICK LEON DUNSTON" ], "opinions": [ { "text": "HUNTER, Judge.\nFrederick Leon Dunston (\u201cdefendant\u201d) appeals from a judgment filed 27 April 2001 entered consistent with jury verdicts finding him guilty of first degree sex offense with a child and taking indecent liberties with a child. Defendant was sentenced to a minimum term of imprisonment of 216 months and a maximum term of 269 months. Because the trial court improperly admitted evidence that defendant engaged in and enjoyed consensual anal sex with an adult, we grant defendant a new trial.\nAt trial beginning on 24 April 2001, the minor victim stated she was born on 6 November 1988, and was therefore twelve years old at the time of trial. The victim then testified that while she was a foster child living with defendant and Tonya Dunston, whom defendant married during this period, defendant \u201csex abused\u201d the victim in their home on several occasions. She further testified this meant touching a person in their \u201cprivate spot.\u201d The victim stated that defendant had touched her \u201cprivate part\u201d in the front of her body and touched her butt with \u201c[h]is pickle.\u201d\nEarlene Thomas (\u201cThomas\u201d) testified that after the victim was removed from the Dunston\u2019s home she was placed with Thomas. During the time the victim was placed with Thomas, the victim required treatment for various behavioral problems at Charter Hospital. Following one such treatment, the victim told Thomas that \u201c T learned that I didn\u2019t have to let that man touch me like he did.\u2019 \u201d The victim then indicated through gestures that defendant had touched her vagina and bottom and also stated defendant had his \u201c \u2018ding-a-ling . . . punching me in my bottom.\u2019 \u201d This evidence was admitted as corroborative evidence and the jury was instructed to only consider it as such.\nTonya Dunston testified that she and defendant had taken in the victim as a foster child in December 1997 and that defendant would discipline her by having her stand in the corner or by sending her to her room. After being recalled to the stand, Tonya Dunston was asked, over defendant\u2019s objection, if she and defendant had a sexual relationship, to which she replied affirmatively. She was then asked, over defendant\u2019s objection, what sort of sexual activity they engaged in and she replied, \u201c[missionary and anal.\u201d Again over defendant\u2019s objection, she was asked what sort of sexual activity defendant liked to engage in and she stated, \u201c[a]nal.\u201d\nKim Madden (\u201cMadden\u201d) was received by the trial court as an expert for the State in the field of interviewing and evaluating sexually abused children. She testified that she met the victim in June 1999 when the victim was taken to the Moses Cone Hospital Outpatient Clinic. Madden conducted an interview of the victim, observing the victim was a cognitively limited child and that by her mannerisms seemed to be mildly mentally retarded. Evidence of statements made by the victim during the interview were admitted as corroborative evidence. The victim told Madden that defendant had touched her \u201c \u2018private part\u2019 \u201d and put \u201c \u2018his private part in my part\u2019 \u201d such that \u201c \u2018[i]t felt like he was doing it to me.\u2019 \u201d The victim also related that defendant had put his private part on her butt. The victim further stated that defendant had smacked her with his hand and that defendant had tied her to a chair, cut her with a knife, jabbed her with a pin, and injured her ankle with a rollerblade. Madden testified in her expert opinion, although it was striking that she was aware of anal sex, the victim\u2019s behavior did not necessarily mean that the victim was sexually abused. Instead, it was Madden\u2019s opinion that the victim\u2019s behavior indicated a child \u201cwho is ten and shouldn\u2019t have that type of knowledge [about anal sex] had been either inappropriately exposed to that or had experienced that.\u201d\nDr. Angela Stanley (\u201cDr. Stanley\u201d) testified that she examined the victim. Her examinatiQn revealed that the victim\u2019s genitalia were normal and her hymen was \u201cquite healthy.\u201d The victim\u2019s anus, however, appeared abnormal. Dr. Stanley observed the victim\u2019s anus was smooth and somewhat hollowed out in the area between five o\u2019clock and seven o\u2019clock. This was termed \u201cfunneling\u201d and can exist where there has been repeated stretching or friction in that area so the folds of the anus have been stretched out. According to Dr. Stanley, such a finding was rare and can be consistent with anal abuse or anal sex. In her opinion, the findings from the examination were supportive of the victim\u2019s statements about being sexually abused. On cross-examination, Dr. Stanley conceded that the conditions she observed could be caused by sexual abuse, but not necessarily so. On redirect examination, Dr. Stanley testified that she had performed over 800 examinations of child sexual abuse victims, including victims of anal sexual abuse, and this was the only case in which she had observed funneling.\nThe defense, in its case in chief, called Dr. Scott Bowie (\u201cDr. Bowie\u201d) as an expert in obstetrics, gynecology, and sexual abuse examination. Dr. Bowie testified that he reviewed Dr. Stanley\u2019s notes and that those notes were inconsistent with vaginal . sexual intercourse, and further that the findings from the anal examination did not necessarily indicate sexual abuse. Dr. Bowie further stated that such a finding can be normal, particularly in cases of women who have not had a pregnancy or a vaginal delivery. On cross-examination, Dr. Bowie testified that there were two schools of thought on whether funneling of the anus was indicative of anal sexual abuse, and that one side believed that such findings were indicative of anal sexual abuse.\nDefendant testified on direct examination, in his own behalf, about an interview with the investigating officer. Defendant admitted that he lied to the investigating officer when asked if he had ever spanked the victim and admitted he had spanked her in violation of the rules for the foster parent program. On cross-examination, defendant stated the officer had advised him of his Miranda rights. When the State asked defendant if the investigating officer subsequently asked about the victim\u2019s allegations of abuse the following exchange occurred:\nQ. . . . Now, [the investigating officer] stated to you, \u201cDid you do this\u201d; isn\u2019t that true?\nA. She asked me that.\nQ. And what was your response?\nA. I said, \u201cDo I have to answer that?\u201d\nQ. And what did [the investigating officer] say?\nA. She \u2014 I believe she said no.\nQ. And what was your response at that time?\nA. I asked to terminate the interview.\nQ. But your initial response was do I have to answer?\nA. That\u2019s correct.\nQ. It wasn\u2019t no?\nA. I said \u2014 it was not no.\nDefendant did not object or move to strike any of this testimony.\nDefendant also called Lisa Childress (\u201cChildress\u201d) who had been a classroom teacher of the victim. Childress testified that in 1996, prior to being placed in foster care with defendant, the victim had numerous behavioral problems including inserting the names of all the students in her class into the chant: \u201cmale and female . . . \u2018sitting in a tree, K-I-S-S-X-Y-Z. F\u2014 her up. F\u2014 her down. F\u2014 her hole all around.\u2019 \u201d Childress also stated that records showed there were other instances where the victim had used sexually explicit language.\nAt the close of all the evidence, the trial court allowed the defense motion to dismiss a charge of first degree statutory rape, but allowed the charges of first degree sex offense, based on the alleged anal sexual abuse, and indecent liberties to go to the jury.\nThe issues are whether: (I) the testimony of Thomas and Madden was admissible as corroborative evidence; (II) testimony that defendant liked to engage in anal sex was admissible under Rule 404(b); and (III) it was plain error for the State to elicit testimony that defendant chose to terminate his interview with the investigating officer and did not deny his guilt after being given his Miranda warnings.\nI.\nDefendant first contends that the testimony by Thomas and Madden of statements made to them by the victim was inadmissible as corroborating evidence. We disagree. At the outset, we note that the State contends Madden\u2019s testimony was admissible as statements made for the purpose of medical diagnosis or treatment. The record, however, clearly reveals that these statements were admitted solely for purposes of corroborating the victim\u2019s testimony.\n\u201cOur courts have long held that a witness\u2019s prior consistent statements may be admissible to corroborate the witness\u2019s in-court testimony.\u201d State v. Guice, 141 N.C. App. 177, 201, 541 S.E.2d 474, 489 (2000). \u201cCorroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness.\u201d State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980). Where corroborative testimony tends to add strength and credibility to the testimony of another witness, the corroborating testimony may contain new or additional facts. See State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993). Variances in detail between the generally corroborative testimony and the testimony of another witness reflect only upon the credibility of the statement. State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983). Whether testimony is, in fact, corroborative is a factual issue for the jury to decide after proper instruction by the trial court. State v. Burns, 307 N.C. 224, 231-32, 297 S.E.2d 384, 388 (1982).\nIn this case, although there are variances between the testimony of the victim and the corroborating testimony given by Thomas and Madden, their testimony generally corroborates the testimony of the victim. The variances in the statements relate only to the credibility and weight to be given to the statements by the jury and are not sufficient to render the testimony contradictory.\nII.\nDefendant next contends that admission of testimony by Tonya Dunston that defendant engaged in and liked anal sex is inadmissible under Rule 404(b) of the North Carolina Rules of Evidence. We agree.\nUnder Rule 404(b), evidence tending to show a defendant committed other wrongs, crimes, or acts and his propensity to commit such acts is admissible as long as it is relevant for some purpose other than to show the propensity of a defendant to commit the crime charged. State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990). Examples of purposes for which evidence of other crimes, wrongs, or acts is admissible include: \u201cmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2001). \u201cUnder Rule 404(b) a prior act or crime is \u2018similar\u2019 if there are 1 \u201csome unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both.\u201d \u2019 \u201d State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-91 (1991) (citations omitted). Where, however, the State fails to show sufficient similarity between the acts \u201cbeyond those characteristics inherent to [the acts],\u201d evidence of the prior acts is inadmissible under Rule 404(b). See State v. Al-Bayyinah, 356 N.C. 150, 155, 567 S.E.2d 120, 123 (2002).\nIn this case, the State contends evidence defendant engaged in and liked anal sex was relevant to prove both identity and motive. We conclude that the fact defendant engaged in and liked consensual anal sex with an adult, whom he married, is not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both, i.e., they both involve anal sex, to be admissible under Rule 404(b). We conclude this evidence was not relevant for any purpose other than to prove defendant\u2019s propensity to engage in anal sex, and thus, the trial court erred in admitting this evidence.\nFurthermore, given the sensitive and potentially inflammatory nature of this evidence it is highly probable this testimony was prejudicial to defendant, especially in light of the inconsistent and unclear nature of the remaining evidence in this case, which includes: (1) testimony of the State\u2019s expert that, in her opinion, the victim\u2019s behavior did not necessarily mean that she had been sexually abused, but rather that she had either experienced anal sex or had inappropriate knowledge of anal sex; (2) evidence that the victim had knowledge of sexually explicit language and activities prior to being placed in foster care with defendant; and (3) expert medical testimony from both sides recognizing that findings from the medical examination of the victim did not necessarily indicate sexual abuse and that there were differing opinions within the medical community as to the significance of such findings. As we have determined that evidence defendant engaged in and enjoyed consensual anal sex with his wife was improperly admitted under Rule 404(b) and that this error was probably prejudicial to him, defendant is entitled to a new trial.\nIII.\nDefendant finally argues that the trial court committed plain error in allowing the State to elicit testimony from him that after being given his Miranda warnings he terminated the interview with the investigating officer when she began questioning him about the allegations of sexual abuse and that he did not deny the allegations.\nAssuming the examination about which defendant now complains violates \u201cthe implicit assurance contained in the Miranda warnings that silence will carry no penalty[,]\u201d where a defendant fails to object to questioning in violation of Miranda rights, that violation is subject only to plain error review on appeal. State v. Walker, 316 N.C. 33, 38, 340 S.E.2d 80, 83 (1986). \u201cThe plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to \u2018plain error,\u2019 the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.\u201d Id. at 39, 340 S.E.2d at 83 (citation omitted).\nAs we have already granted defendant a new trial in this case, it is unnecessary to comment on whether the State\u2019s examination constituted plain error.\nNew trial.\nChief Judge EAGLES and Judge GEER concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Allison S. Corum and Special Deputy Attorney General Judith Robb Bullock, for the State.", "Clifford, Clendenin, O\u2019Hale & Jones, L.L.P., by Robert I. O\u2019Hale, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FREDERICK LEON DUNSTON\nNo. COA02-1634\n(Filed 2 December 2003)\n1. Evidence\u2014 corroborative testimony \u2014 credibility\nThe trial court did not err in a first-degree sex offense with a child and taking indecent liberties with a child case by admitting the testimony of two witnesses of statements made to them by the victim as corroborative evidence, because: (1) although there are varianc\u00e9s between the testimony of the victim and the corroborating testimony given by the two witnesses, their testimony generally corroborates the testimony of the victim; and (2) the variances in the statements relate only to the credibility and weight to be given to the statements by the jury and are not sufficient to render the testimony contradictory.\n2. Evidence\u2014 prior crimes or acts \u2014 defendant engaged in and enjoyed consensual anal sex with adult\nThe trial court erred in a first-degree sex offense with a child and taking indecent liberties with a child case by improperly admitting evidence under N.C.G.S. \u00a78C-1, Rule 404(b) that defendant engaged in and enjoyed consensual anal sex with an adult, and defendant is entitled to a new trial because: (1) the fact that defendant engaged in and liked consensual anal sex with an adult, whom he married, is not by itself sufficiently similar to engaging in anal sex with an underage victim; (2) the evidence was not relevant for any purpose other than to prove defendant\u2019s propensity to engage in anal sex; and (3) it is highly probable this testimony was prejudicial to defendant especially in light of the inconsistent and unclear nature of the remaining evidence.\nAppeal by defendant from judgment entered 27 April 2001 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 13 October 2003.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Allison S. Corum and Special Deputy Attorney General Judith Robb Bullock, for the State.\nClifford, Clendenin, O\u2019Hale & Jones, L.L.P., by Robert I. O\u2019Hale, for defendant-appellant." }, "file_name": "0468-01", "first_page_order": 498, "last_page_order": 504 }