Opinion
No. COA07-130.
Filed February 19, 2008.
Northampton County Nos. 02 CRS 51359, 03 CRS 625-7, 05 CRS 2.
Appeal by defendant from judgments entered 30 June 2006 by Judge Alma L. Hinton in Northampton County Superior Court. Heard in the Court of Appeals 10 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State. M. Alexander Charns for defendant appellant.
Defendant appeals judgments entered after a jury verdict of guilty of attempted first-degree murder, first-degree rape, first-degree sexual offense, robbery with a dangerous weapon and first-degree kidnapping. We determine there was no prejudicial error.
FACTS
The State's evidence at trial tended to show the following: On 25 November 2002, Amanda Bellflower borrowed a car from her brother (David Lewter) at around 7:30 p.m. and drove it to Scocco Park in Weldon, North Carolina, to purchase drugs. Once Ms. Bellflower arrived at the park, she pulled over near two men standing by the street and asked them if they had any crack cocaine she could purchase for eight dollars. One of the men, later identified as defendant, pointed a gun at Ms. Bellflower and took her money. Defendant subsequently told Ms. Bellflower to get in the trunk, and when she complied, defendant closed the trunk with Ms. Bellflower inside.
With Ms. Bellflower in the trunk, defendant drove the car to several locations, at one point stopping to pick up other passengers. Defendant eventually drove the car down a gravel road and turned off the engine. After exiting the car, defendant opened the trunk and hit Ms. Bellflower in the head with a brick rendering Ms. Bellflower unconscious.
Several hours after Ms. Bellflower borrowed her brother's car, Mr. Lewter became concerned and alerted the police. Officer Joshua Clark of the Halifax County Sheriff's Office located the car later that night. According to Officer Clark, the car was being driven by Lacy Smith and defendant was riding in the passenger seat. When Officer Clark inquired as to how the two men had obtained the car, defendant responded that they had acquired it from a girl named Miranda. Officer Clark then searched the driver for weapons and found an identification card, social security card, and two prescription drug receipts belonging to Ms. Bellflower.
Ms. Bellflower's body was found by Scott Pearson in a field in Occoneechee Neck, North Carolina, early on the morning of 26 November 2002. She was found partially clothed lying in the field. Ms. Bellflower's hair was matted and caked, her face appeared bruised and swollen, and it appeared she had lost a significant amount of blood. Her pants had been pulled down and ripped, and she had the impression of a tire going across her stomach. Mr. Pearson then called 911 from his cellular phone to alert local law enforcement of what he had found.
When Deputy Fontay Macon of the Northampton County Sheriff's Department arrived on the scene, Ms. Bellflower was able to tell him her name. Deputy Macon recognized the name from a report he had received earlier that evening regarding the unauthorized use of a car. Ms. Bellflower was then taken to the hospital.
At the hospital, Ms. Bellflower was treated by Dr. Russell Buss, an emergency physician. According to Dr. Buss, she was in critical condition at the time she arrived at the hospital, with a body temperature of 81 degrees Fahrenheit. She was also suffering from injuries to the abdomen, chest, ankle, and head. Dr. Buss testified that Ms. Bellflower's injuries were consistent with being run over by a car. Dr. Buss also testified that at the time he treated Ms. Bellflower, she was close to death.
Dr. Richard Mineilly, an expert in gynecology, examined Ms. Bellflower in the operating room to determine if she had been subject to sexual abuse. Dr. Mineilly noted that she had bruising on her pelvic area and abrasions on her upper thigh and legs. She also suffered from lacerations on the inside of her right knee and on the left thigh. Her genital and perineal areas showed signs of trauma, as did her vulva. Dr. Mineilly further testified that the area of her hymen was red and inflamed, and there was a white discharge in her vagina. An examination of Ms. Bellflower's rectal area revealed abrasions to her anus. At trial, Dr. Mineilly opined that Ms. Bellflower's vagina had been penetrated. Although he noted Ms. Bellflower's anus had suffered trauma, Dr. Mineilly was not able to form an opinion as to whether her anus had been penetrated as well. After examining Ms. Bellflower, Dr. Mineilly took swabs from her vagina, rectal area, and perineal area.
Ms. Bellflower regained consciousness about a week later, with no memory of the events that followed the injury she sustained from the brick. When she awoke, Ms. Bellflower was in Halifax Regional Hospital due to the severity of the injuries she had sustained. Ms. Bellflower's left ankle was almost completely severed, her right ankle was broken, her pelvic area was crushed, one of her lungs had collapsed, she had been burned on her arm, one of her fingers was broken and one of her fingernails had been ripped off. On 27 June 2006, defendant was tried in Northampton County Superior Court before the Honorable Alma L. Hinton for the attempted first-degree murder, first-degree kidnapping, robbery with a dangerous weapon, first-degree sexual offense, and first-degree rape of Ms. Bellflower. At trial, the State presented testimony from Special Agents Suzi Barker and Chris Parker. Special Agent Barker, an expert in forensic serology, testified that she analyzed the vaginal and rectal swabs and determined spermatozoa was present on both swabs. Special Agent Parker, an expert in the field of forensic DNA analysis, testified that the spermatozoa was a mixture from at least two individuals. The State provided further testimony from Dr. Christopher Basten, an expert in the field of population genetics, that the mixture contained on the rectal swab was at least 550,000 times more likely to have come from the victim, the unnamed individual, and defendant than from the victim, the unnamed individual, and a third person unrelated to defendant. On 30 June 2006, the jury returned a verdict of guilty on each of the crimes charged. Defendant filed a notice of appeal on 6 July 2006.
I.
Defendant first argues the trial court erred by instructing the jury that the legal doctrine of recent possession could be used to convict defendant of attempted first-degree murder, first-degree rape, first-degree sexual offense and kidnapping. We disagree.
"It is well established that the 'possession of stolen property recently after the theft, and under circumstances excluding the intervening agency of others, affords presumptive evidence that the person in possession is himself the thief, and the evidence is stronger or weaker, as the possession is nearer to or more distant from the time of the commission.'" State v. Joyner, 301 N.C. 18, 28, 269 S.E.2d 125, 132 (1980) (citation omitted). Although evidence of recent possession has been said to raise a presumption, it is more accurate to characterize such evidence as raising a permissible inference that the possessor is the thief. Id. "The presumption, or inference as it is more properly called, is one of fact and not of law." State v. Fair, 291 N.C. 171, 173, 229 S.E.2d 189, 190 (1976). The inference drawn from recent possession "is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant's guilt." State v. Baker, 213 N.C. 524, 526, 196 S.E. 829, 830 (1938). "The inference which arises, however, is that the possessor is the thief." Joyner, 301 N.C. at 28-29, 269 S.E.2d at 132. In addition, the jury may consider defendant's recent possession of stolen property as a relevant circumstance in determining whether defendant was guilty of all the crimes charged against him, provided all the crimes occurred as a part of the same criminal enterprise. Id. at 29, 269 S.E.2d at 132.
In the case sub judice, defendant was charged with attempted first-degree murder, first-degree rape, first-degree sexual offense, robbery with a dangerous weapon, and first-degree kidnapping. At the close of the arguments, a charge conference was held to determine what instructions would be given to the jury. In this conference, defense counsel raised an objection to one of the proposed instructions on the grounds that the doctrine of recent possession should be applied only to "the robbery and not on the rest of the charges[.]" After noting defense counsel's objection, the trial judge gave the following jury instruction with regard to recent possession:
The State seeks to establish the defendant's guilt by the doctrine of recent possession. For the doctrine of recent possession to apply, the State must prove three things beyond a reasonable doubt: first, that the property was stolen; second, that the defendant had possession of this property. A person possesses property when that person is aware of its presence and either — and has either alone or together with others both the power and intent to control its disposition or use, and third, that the defendant had possession of this property so soon after it was stolen and under such circumstances as to make it unlikely that the defendant obtained the possession honestly.
If you find these things from the evidence beyond a reasonable doubt, you may consider them together with all other facts and circumstances in deciding whether or not the defendant is guilty of robbery with a dangerous weapon, kidnapping, rape, sex offense, and attempted murder.
After all the jury instructions were given, defense counsel sought to renew his previous objection, which was subsequently overruled. On appeal, defendant argues (1) the State failed to show defendant possessed the stolen property within the necessary temporal proximity to allow for an inference of guilt, and (2) the aforementioned jury instruction lessens the burden of proof for the rape and sexual offense charges. In support of his first contention, defendant argues that too much time had elapsed between the theft of the vehicle and Officer Clark's apprehension of defendant and a codefendant in the stolen vehicle to allow for the inference of recent possession. However, a review of the record reveals defendant did not put forth this argument at trial. Rather, defendant objected to the aforementioned jury instruction on the grounds that the doctrine of recent possession should not be applied to any of the charges other than the robbery. "When a party changes theories between the trial court and an appellate court, the assignment of error is not properly preserved and is considered waived." State v. Shelly, 181 N.C. App. 196, 207, 638 S.E.2d 516, 524, disc. review denied, 361 N.C. 367, 646 S.E.2d 768 (2007). Therefore, as defendant's theory on appeal differs from the one he presented at trial, the jury instructions will be reviewed for plain error only. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Given the brief period between the time Ms. Bellflower was robbed and the time defendant was found occupying Ms. Bellflower's vehicle, we hold the trial court did not commit plain error by instructing on the doctrine of recent possession.
In support of his second contention, defendant argues the jury instruction incorrectly led the jury to believe that defendant's guilt as to the rape and sexual offense charges could be established from the doctrine of recent possession. Further, defendant argues, the jury instruction implied that if the jury were to find the doctrine of recent possession applied, such a finding would make it more likely that he committed the rape and sexual offense charges. Thus, according to defendant, this jury instruction violated his rights provided under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Upon review, we find defendant's argument to be without merit. In State v. Joyner, the defendant challenged a jury instruction indicating that the doctrine of recent possession could be considered as evidence that the defendant was guilty of rape. Joyner, 301 N.C. at 27, 269 S.E.2d at 131. In upholding the jury instruction given by the trial judge, our Supreme Court held: While the trial judge here referred to the "doctrine of recent possession," he nowhere charged that the fact of possession raised a presumption or even an inference that defendant was guilty of any of the crimes charged against him. He merely stated that the jury might consider defendant's recent possession "together with all the other facts and circumstances in deciding whether or not the defendant is guilty of rape, burglary and larceny." Here the evidence tends to show that the larceny, burglary and rape all occurred at or about the same time as part of one criminal enterprise committed by the same assailant. Under these circumstances defendant's recent possession of the stolen property is a circumstance tending to show that defendant was present in Ms. Young's apartment at the time the rape occurred. Therefore it is a circumstance which the jury was entitled to consider on the question of defendant's guilt not only of the larceny but also of the rape. "Whenever goods have been taken as a part of the criminal act, the fact of subsequent possession is some indication that the possessor was the taker, and therefore the doer of the whole crime."
Id. at 29, 269 S.E.2d at 132 (citation omitted). In the instant case, the evidence tends to show the attempted murder, rape, sexual offense, robbery, and kidnapping all occurred at or about the same time as part of one criminal enterprise committed by the same assailant. Thus, we hold the jury was entitled to consider the question of defendant's guilt, with respect to his recent possession of the stolen property, not only as to the charge of robbery with a dangerous weapon, but as to the other charges as well. Therefore, defendant's assignment of error is overruled.
II.
Defendant next argues the trial court erred by not allowing the defense to elicit testimony from the alleged victim that she had previously purchased drugs for sex. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 412 (2007) provides in pertinent part:
(a) As used in this rule, the term "sexual behavior", means sexual activity of the complainant other than, the sexual act which is at issue in the indictment on, trial.
(b) Notwithstanding any other provision of law, the, sexual behavior of the complainant is irrelevant to, any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant;, or
(2) Is evidence of specific instances of sexual, behavior offered for the purpose of showing that, the act or acts charged were not committed by the, defendant; or
(3) Is evidence of a pattern of sexual behavior so, distinctive and so closely resembling the defendant's, version of the alleged encounter with the complainant, as to tend to prove that such complainant consented to, the act or acts charged or behaved in such a manner as, to lead the defendant reasonably to believe that the, complainant consented; or
(4) Is evidence of sexual behavior offered as the, basis of expert psychological or psychiatric opinion, that the complainant fantasized or invented the act or, acts charged.
Id. We have previously recognized that evidence of a distinctive pattern of sexual behavior is relevant to the issue of consent. State v. Ginyard, 122 N.C. App. 25, 32, 468 S.E.2d 525, 530 (1996). "The pattern may either establish that (1) the complainant consented to have sex with this defendant, because of the manner in which their sexual encounter took place or (2) because of the complainant's pattern, this defendant reasonably believed the complainant consented to have sex with him." Id. See N.C. Gen. Stat. § 8C-1, Rule 412(b)(3). For a defendant to possess a reasonable belief that the complainant consented to sex, based on a pattern of sexual behavior, the defendant must have knowledge of the pattern. Ginyard, 122 N.C. App. at 32, 468 S.E.2d at 530. In addition, the jury may infer that a complainant consented to have sex with the defendant "if the complainant's sexual encounter with defendant is similar to the complainant's pattern, even if the defendant did not know of the pattern at the time of the alleged rape." Id. "A 'pattern' is '[a] representative sample' or '[a] consistent characteristic form, style, or method.'" Id. (citation omitted). This Court has previously recognized that evidence of a "'few isolated instances'" of consensual sexual activities may be insufficient to infer consent. Id. at 33, 468 S.E.2d at 530.
In the case at bar, Ms. Bellflower testified at trial that she traveled to Scocco Park with the intent to buy crack cocaine. However, on cross-examination, Ms. Bellflower admitted to having arrived at the park with only eight dollars, despite the fact that the going rate for a "hit" of crack cocaine was around twenty dollars. Upon further questioning, Ms. Bellflower indicated that she had previously been able to obtain crack cocaine without paying money. In response to Ms. Bellflower's testimony regarding her methods of payment, the State lodged an objection. The trial judge then asked the jury to leave the courtroom so defense counsel could conduct an in camera examination of the witness. During the in camera hearing, the State argued Ms. Bellflower's previous sexual behavior involving the exchange of drugs for sex was not relevant to the instant case. Although defense counsel recognized the existence of statutory protections afforded to victims in cases of rape, defense counsel asserted that he should be allowed to cross-examine the witness concerning "motive, bias or in any particular areas which would go to credibility or lack of credibility of a particular witness's statement." The trial judge then allowed each side to examine Ms. Bellflower to determine the content of her testimony. After hearing Ms. Bellflower's testimony, the trial judge sustained the State's objection and did not allow defense counsel to elicit this testimony during trial. Defense counsel excepted to this ruling. On appeal, defendant argues Ms. Bellflower's testimony regarding her previous sexual behavior was admissible because it reveals a pattern of sexual behavior which tends to prove that the complainant consented to sexual intercourse with defendant. However, a review of the record reveals that defendant never put forward this theory as the reason he sought to elicit the pertinent testimony. Though defense counsel seems to have alluded to this purpose, he informed the trial court that he would be eliciting the testimony to determine if the witness possessed any motive or bias. North Carolina Rule of Evidence 412 expressly limits the admission of evidence concerning the complainant's sexual behavior to the exceptions enumerated in the rule. See N.C. Gen. Stat. § 8C-1, Rule 412(b)(1), (2), (3) and (4). Here, defense counsel sought to elicit testimony from the complainant, Ms. Bellflower, about her previous sexual behavior during drug transactions. However, the rationale defense counsel put forward for producing this testimony, demonstrating motive or bias, was not a permissible use for this testimony as provided under Rule 412. Further, even assuming arguendo that defendant had sought to introduce this testimony as evidence that Ms. Bellflower consented to sexual intercourse, we find Ms. Bellflower's testimony regarding her previous sexual behavior insufficient to infer she consented to sexual intercourse with defendant. Therefore, the trial court correctly excluded the testimony pursuant to Rule 412.
III.
Defendant further argues the trial court erred by not granting defendant's motion to dismiss the charges of first-degree rape and first-degree sexual offense because there was insufficient evidence of defendant's guilt. We disagree. "In order to survive a defendant's motion to dismiss, the State must present substantial evidence of each essential element of the offense charged, and of the defendant's identity as the perpetrator." State v. Mueller, ___ N.C. App. ___, ___, 647 S.E.2d 440, 446, cert. denied, ___ N.C. ___, ___ S.E.2d ___ (2007) (citation omitted). "Substantial evidence is that which 'a reasonable mind might accept as adequate to support a conclusion.'" Mueller, ___ N.C. App. at ___, 647 S.E.2d at 446 (citation omitted). In ruling on the motion, the "state is entitled to all reasonable inferences that may be drawn from the evidence. Contradictions in the evidence are resolved favorably to the state." State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986). Where the evidence "is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed." State v., Baker, 338 N.C. 526, 558, 451 S.E.2d 574, 593 (1994) (quoting State v., Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
N.C. Gen. Stat. § 14-27.2 (2007) provides that "[a] person is guilty of rape in the first degree if the person engages in vaginal intercourse . . . [w]ith another person by force and against the will of the other person?" and (1) "[e]mploys or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon[,]" or (2) "[i]nflicts serious personal injury upon the victim or another person[,]" or (3) "[t]he person commits the offense aided and abetted by one or more other persons." Id. Our General Statutes also provide that "[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act . . . [w]ith another person by force and against the will of the other person," and (1) "[e]mploys or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon[,]" or (2) "[i]nflicts serious personal injury upon the victim or another person[,]" or (3) "[t]he person commits the offense aided and abetted by one or more other persons." N.C. Gen. Stat. § 14-27.4 (2007).
In the instant case, defendant argues insufficient evidence was produced at trial to show defendant was guilty of first-degree rape and first-degree sexual offense. According to defendant, the evidence at trial was insufficient because the State's medical expert testified that he could not tell if the anus of the complainant had been penetrated, the expert did not analyze the DNA report of the vaginal swab, and the fluid identified on the rectal swab could not be unequivocally identified as defendant's. In addition, defendant points to Ms. Bellflower's testimony that she had no memory of any sexual assault because she was rendered unconscious when she was hit in the head with a brick. We find defendant's argument unpersuasive. The evidence presented at trial tended to show, inter alia, (1) complainant was kidnapped and rendered unconscious by defendant, (2) complainant did not consent to sexual intercourse with defendant, (3) complainant suffered trauma to her vagina and anus, including abrasions on her vulva; (4) complainant's hymen was red and inflamed; (5) a white discharge was found on complainant's cervix and vagina, (6) abrasions were present on the complainant's rectum, (7) it was highly probable that defendant contributed to the fluid collected on the rectal swab. Viewed in the light most favorable to the State, we hold the evidence presented at trial amounted to substantial evidence that defendant was guilty of the offenses of first-degree rape and first-degree sexual offense. Therefore, we hold defendant's argument is without merit.
IV.
Defendant lastly argues his trial counsel was ineffective. Specifically, defendant contends defense counsel's failure to request recordation of jury selection, bench conferences, opening arguments, and closing arguments deprived defendant of a full, adequate, and complete appeal of trial errors. We disagree. Claims for ineffective assistance of counsel (IAC) brought for direct review "will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). This rule conforms with the general principle that appellate review is ordinarily limited to "the record on appeal and the verbatim transcript of proceedings, if one is designated[.]" N.C. R. App. P. 9(a) (2008); Fair, 354 N.C. at 166, 557 S.E.2d at 524-25. "Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel." Fair, 354 N.C. at 167, 557 S.E.2d at 525; see Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984); State v. Strickland, 346 N.C. 443, 454-55, 488 S.E.2d 194, 200-01 (1997), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998). An IAC claim must establish that the professional assistance the defendant received was unreasonable and that the outcome at trial would have been different absent such assistance. Fair, 354 N.C. at 167, 557 S.E.2d at 525; Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693.
The test for determining if a criminal defendant has received effective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, and adopted by our Supreme Court in State v., Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). According to our Supreme Court:
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
In the case sub judice, defendant attempts to meet the first requirement by showing that his counsel failed to request a transcript of all the proceedings. In support of his argument, defendant relies on N.C. Gen. Stat. § 15A-1241 (2007), which provides:
(a) The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:
(1) Selection of the jury in noncapital cases;
(2) Opening statements and final arguments of counsel to the jury; and
(3) Arguments of counsel on questions of law.
(b) Upon motion of any party or on the judge's own motion, proceedings excepted under subdivisions (1) and (2) of subsection (a) must be recorded. The motion for recordation of jury arguments must be made before the commencement of any argument and if one argument is recorded all must be. Upon suggestion of improper argument, when no recordation has been requested or ordered, the judge in his discretion may require the remainder to be recorded.
The plain language of the statute makes it clear that the selection of the jury need not be recorded in a noncapital case, such as the case sub judice See State v. Hardison, 326 N.C. 646, 661, 392 S.E.2d 364, 373 (1990). "The same is true of the opening statements and closing arguments of counsel." Id. With regard to bench conferences, the record in this case indicates that several such conferences were held between the judge and opposing counsel. Although defendant argues that a transcript should have been taken during the aforementioned proceedings, he has made no attempt to reconstruct the record as to any particular proceeding. Further, defendant has put forth no argument that the actions of his counsel caused him to be unfairly prejudiced in any of these unrecorded proceedings. Rather, defendant asserts that without knowledge "of the defense and prosecution, appellate counsel is at a disadvantage in arguing the effects of the arguments on his argument that the jury instructions were in error and the prosecutor's use or non-use of this erroneous instruction." Similarly, defendant also contends the lack of a transcript "denies appellate counsel crucial information about the State and defense theories of the case and the prejudicial effect of the court's evidentiary ruling." Thus, as defendant has failed to show his counsel at trial was deficient, we find defendant's arguments fall short of satisfying the burden set forth in Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, and Braswell, 312 N.C. 553, 324 S.E.2d 241.
No prejudicial error.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).