By Holly Fesperman Lee

Salisbury Post

A judge refused to rule Tuesday on whether a jury can hear testimony about the sexual history of a former teacher who is suing her former principal and the Rowan-Salisbury Board of Education.

Superior Court Judge Kimberly Taylor heard pre-trial motions in the case involving former teacher Laurie Mendiola and former West Rowan Middle School Principal Tony Helms.

Mendiola’s attorney, B. Ervin Brown, filed a lawsuit on her behalf in May 2005 claiming that Helms forced her to have sex with him and threatened her job if she didn’t comply.

In an answer to the lawsuit filed on his behalf, Helms admitted he had an affair with Mendiola but said the relationship was consensual.

Mendiola’s suit also claims that the school system accepted Helms’ denial of the affair and didn’t do anything to rectify the situation, according to court documents.

During Tuesday’s pre-trial motions, Brown asked Taylor to grant a motion excluding testimony about Mendiola’s sexual activities with anyone other than Helms.

Like other single, divorced people, Mendiola has had sexual liaisons with others, Brown said. He said the purpose of this type of testimony would be to portray Mendiola as a person of poor morals.

The judge told Brown she may need to hear some of the evidence before she could make a ruling.

Brown asked Taylor to at least exclude information about Mendiola’s sexual history from jury selection and opening statements.

Brown pointed to the defense table and said, “I don’t want him up talking to the jury about this woman sleeps with every Tom, Dick and Harry.”

Ken Soo, attorney for the Rowan-Salisbury Board of Education, told Taylor that testimony about Mendiola’s conduct before she came to West Middle was included in a case affidavit.

According to court documents, Mendiola approached an assistant principal at another Rowan-Salisbury School where she worked as a teacher and asked him if he wanted to go out with her.

The assistant principal said he couldn’t for a number of reasons, including he was her supervisor.

Soo said the law allows this type of testimony to establish a pattern of similar conduct.

In another sworn statement in the court file, a local law enforcement officer testified he had a “sexual tryst” with Mendiola on a camping trip.

Judge Taylor said she would rule on information entered by the defense about Mendiola’s sexual history as it comes up.

If Mendiola and her attorney open the door to information about her sexual history then the defense has a right to examine the issue, Taylor said.

The judge also said neither party will be allowed to bring up information about Mendiola’s sexual activities during jury selection or opening statements.

Also Monday, Taylor denied a motion from Brown to prohibit Judy Helms, Tony Helm’s wife, from sitting in the courtroom during the trial.

Brown argued that all information Judy Helms knows about the case comes from her husband and her lawyers.

“She has no firsthand knowledge of anything about this lawsuit. Zero,” he said.

Judy Helms is in a wheelchair and requires oxygen because of health problems.

Brown said he’s concerned that Judy Helms’ presence in the courtroom in her condition would be nothing more than an attempt to prejudice the jury against Mendiola.

Soo argued that Judy Helms’ health and illness is directly related to the case.

In a sworn statement in the court file, Mendiola’s hair dresser testified that Mendiola knew Tony Helms was married and that his wife was sick. Soo said the hairdresser also testified that Mendiola said the two could be together after Judy Helms was gone.

Excluding Judy Helms from the courtroom is an extreme measure, Soo told Taylor.

Tony Helms’ attorney, Todd Paris, said it could be very important for Judy Helms to watch this trial in preparation for her own case against Mendiola.

Judy Helms filed a separate alienation of affection lawsuit against Mendiola in September.

Judy Helms first asked to be added as a counter-claimant in the same trial involving her husband and Mendiola, but that motion was denied.

Brown argued again that Judy Helms isn’t a party to the lawsuit and the prejudicial effect is obvious.

“This is an open courtroom. If Mrs. Helms chooses to be in the courtroom, she has a right to be in the courtroom,” Judge Taylor said.

She said Judy Helms’ medical condition shouldn’t bar her from being in the courtroom.

Brown asked Taylor to put limitations on how and when Judy Helms could be identified.

“I really don’t want to argue about this anymore,” Taylor told Brown.

For their part, the attorneys for the Board of Education asked Taylor to keep the jury from seeing an affidavit Helms signed early on in the case.

In the sworn statement, Helms said he had an affair with Mendiola and that Mendiola never consented to the liaisons.

“None of this was consensual on the part of Ms. Mendiola … She did so only because I intimated that her job might otherwise be in jeopardy,” Helms’ affidavit says.

Kathleen Tanner, one of the school board’s attorneys, argued Helms’ signed the affidavit thinking the lawsuit would go away and his personal assets would be protected. Helms wasn’t told the affidavit could be used against him if the case went to trial, Tanner said.

Brown, Mendiola’s attorney, acknowledged preparing the affidavit and discussing settling the suit with Helms.

Attorneys for the school system have taken Brown’s deposition regarding Helms’ statement, and that deposition also is part of the court file.

Brown is a potential witness in the case, even though he’s Mendiola’s attorney.

In his deposition, Brown said he usually sends a letter to all parties notifying them of the situation and asking the parties to call if they have any comments or wish to discuss settlement.

Brown said he didn’t send a letter to Helms in this case because he wasn’t sure if his wife knew about the allegations against him.

Brown called Helms, instead, and gave him the information that the letter would normally contain.

According to Brown, Helms said he wanted to come in and discuss settlement.

Tanner, the school board attorney, said Brown and Helms talked about Helms’ assets and decided he didn’t have enough money to settle the case personally.

Brown then told Helms that as long as he continued to take the position that the affair was consensual, the school board’s insurance company wouldn’t settle, Tanner said.

Tanner argued that evidence created in a “compromising” situation is not admissible.

Brown said the rule of law is that the document has to offer a compromise or promise of some sort and the affidavit does not.

Brown said he told Helms to take the affidavit and discuss it with his attorney or whoever he wished and get back to him.

Helms had plenty of time to show the affidavit to an attorney, Brown argued.

Tanner told Judge Taylor there was a promise made — that Helms’ assets would be protected.

Taylor said Helms’ motivation for signing the affidavit prepared by the Mendiola’s attorney was clearly to help settle the case, and she agreed to exclude the affidavit for evidence for now.

That ruling is subject to change if evidence shows Helms had some other motivation.

Contact Holly Lee at 704-797-7683 or hlee@salisburypost.com.