Opinion
No. COA14–896.
04-21-2015
STATE of North Carolina v. Cecil Harold JONES.
Attorney General Roy Cooper, by Assistant Attorney General Sherri Horner Lawrence, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Sherri Horner Lawrence, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant.
STEPHENS, Judge.
Defendant Cecil Harold Jones was convicted in Onslow County Superior Court on two counts of first-degree sexual exploitation of a minor, two counts of taking indecent liberties with a minor, and two counts of sexual offense with a child by an adult offender. Defendant now appeals from the trial court's denial of his motion to dismiss the first-degree sexual offense charges for insufficient evidence and its failure to instruct the jury on the lesser included offense of attempted first-degree sexual offense. Defendant also argues that his convictions must be vacated because the State relied on false testimony to obtain them, that his trial counsel provided ineffective assistance of counsel, and that the trial court erred because its instructions to the jury on the sexual exploitation charges featured definitions of sexual activity that were broader than the allegations contained in the indictments against him. After careful consideration, we hold that the trial court did not err.
Facts and Procedural History
On 10 December 2012, while installing telephone cables at a job site in Onslow County, Defendant's co-worker William Waters asked if he could borrow Defendant's work-issued red and black flip cell phone to make a call and take a picture to show to their supervisor. After Defendant gave him the phone, Waters noticed that Defendant had recorded and saved several videos on it. When Waters opened one of the videos, he heard a young girl's voice saying, “Uncle Cecil, Uncle Cecil, it's not taking, it's not working,” and then saw a close-up of a young girl's vagina with hands moving back and forth across it, followed by a girl saying “rub it fast, rub it fast.” Disturbed by this discovery, Waters kept Defendant's work phone and reported its contents to the Jacksonville Police Department shortly thereafter.
Defendant was arrested on 12 December 2012 and subsequently interviewed by investigators from the Onslow County Sheriff's Office. During that interview, Defendant admitted to having recorded videos of his seven-year-old niece Janet and her seven-year-old friend Cynthia on his work cell phone the preceding Saturday afternoon in his bedroom in Janet's aunt's house. According to Defendant, who was 62 years old at the time, the girls repeatedly called him to the bedroom, then got on his bed, took off their clothes, and started touching their own vaginas as they held his camera phone to record themselves. Defendant denied taking his clothes off or touching either girl, and insisted that he was impotent and was not trying to have sex with the girls. However, Defendant eventually did acknowledge that he had recorded portions of the videos himself, and confessed that his conduct was wrongful, that he was a poor adult, and that “it was a dirty deal either way you look at it.”
To protect their privacy, we refer to the girls by pseudonyms throughout this opinion.
On 13 August 2013, an Onslow County grand jury handed down two three-count indictments against Defendant, which included one count of first-degree sexual exploitation of a minor for both girls, one count of indecent liberties with a child for both girls, and one count of sexual offense with a child by an adult offender for both girls.
A jury trial was held during the 9 June 2014 Criminal Session of Superior Court in Onslow County. During the trial, Cynthia, who was nine years old by that time, testified that “something bad” happened to her and Janet while they were in Defendant's bedroom in December 2012. Cynthia testified that she and Janet watched a “nasty movie” with Defendant that featured unclothed adults “doing wrong things,” and that afterwards, they copied some things from the movie because Defendant told them to. Although she had difficulty remembering and describing exactly what happened because “it was hard to get through,” Cynthia stated that it involved both girls' private parts and that Defendant took pictures and videos of the girls but never touched them. Cynthia also testified that neither she nor Janet took their clothes off but that Defendant stripped down to his underwear. Janet, who was eight years old by trial, also testified. She identified Defendant as her uncle but denied ever watching any movies with him and stated that she could not remember anything that happened with her Uncle Cecil in December 2012.
The State then called Beth Pogroszewski of the Onslow County Partnership for Children, Child Advocacy Center, who conducted separate forensic interviews with Cynthia and Janet on 19 December 2012. Pogroszewski testified that both girls had difficulty discussing what had happened in Defendant's bedroom and were very avoidant to implicate themselves in any part of it. Pogroszewski explained that this was not surprising under the circumstances, because although most of the sexually abused children that she interviews already “have disclosed that they have been abused or touched, or something has happened to them that they did not like,” in this case, “there was no disclosure from the children” prior to the interviews, which were initiated based on “the fact that a cell phone video had been found, and these children had been identified.” As Pogroszewski testified,
disclosing sexual abuse is a process, and it can take a long time; and a lot of times, it's on the child's own time level, meaning that they may be scared for a while, it may go on for years; and then, at some point, they decide they need to tell somebody. In this case, the children have not disclosed to anybody that something had happened to them, and it just makes it a little bit harder to interview the kids if they're not ready to talk about it.
Pogroszewski further testified that during the girls' 19 December 2012 interviews, Cynthia said nothing incriminating, while Janet denied that anything had happened to her, but stated instead that she had seen Cynthia and Defendant with their pants down and that Defendant had told Cynthia, “I've done something to you, now you do something to me.” Janet also identified the penis on a male anatomical drawing as the private part that she saw on Defendant, and the vaginal area on a female anatomical drawing to indicate the private part where something happened to Cynthia. On 23 January 2013, Pogroszewski conducted a second interview with Cynthia after receiving information that she had started talking about the incident with her family. During that interview, Cynthia said that she and Janet had watched a grown-up movie showing adults without any clothes on doing things to their private parts; that Defendant had left the movie in his room and told the girls not to watch it; that Defendant was mad at them because they disobeyed him by watching the movie; that Defendant later took off his pants and the girls saw his “nuts;” and that at some point, after Janet got on the bed and pulled down her pants, Defendant took pictures of her butt.
The State's next witness was Detective Eric Bailey of the Onslow County Sheriff's Office, who testified that he logged Defendant's cell phone into evidence, obtained a search warrant for its contents, and recovered three relevant videos dated 8 December 2012, which he subsequently described for the jury. Detective Bailey testified that the first video “shows a female juvenile laying down on her back, with her shirt pulled up, exposing her chest. The female juvenile's pants [are] pulled down, exposing the vaginal area, and a close-up of her chest.” Detective Bailey testified that the second video
showed two juvenile girls laying down on a bed on their backs, with their pants pulled down and their vaginal area exposed, a male hand rubbing the vaginal area of both juveniles in an upward and downward motion. It showed a portion of a white male's face licking the vaginal area of the juvenile girls, and the juvenile girls stand up.
Detective Bailey testified that the third video “shows a white male wearing white shorts, holding and rubbing his penis over his shorts with his left hand.” The State then showed the jury several photographs of frames taken from the videos and played a version of each video twice; the first version was from a Cellebrite report that downloaded the video files from Defendant's work cell phone without any audio, while the second version used a separate camera to record the videos while they played on Defendant's phone in order to capture the audio. After publishing the videos to the jury, the State presented testimony from Janet's mother, who identified her daughter as the female exposing her chest in the first video. She also testified that she recognized the voices in the other videos as those of Janet, Cynthia, and Defendant.
Finally, Jennifer Benton, a nurse practitioner at the Onslow County Child Advocacy Center, testified as an expert in the field of child forensics. Although she did not personally examine either of the girls, Nurse Benton testified that the videos were of sufficient quality for her to form the opinion based on her medical training in areas including child abuse and sexual assault examination, and over eleven years of experience in pediatrics, that they depicted the vaginal areas of two pre-pubertal female children. Using photographs of frames taken from the videos, Benton also testified that in her expert opinion, the fingers seen rubbing the girls' vaginas “are not consistent with the fingers of a child's hand” based on her “comparison of the size of the fingers against the size of the genital area.” In addition, using an anatomical photograph of female genitalia, Benton identified the outer labia, smaller labia, and clitoral hood for the jury and explained that the genital opening is any parting of the genital area or labia.
When the State rested its case, Defendant made a general motion to dismiss all of the charges against him, arguing that the State had failed to present sufficient evidence to support each element of the crimes charged. The trial court denied this motion, and Defendant declined to offer any evidence for the jury. Defendant did object to the trial court's proposed jury instructions on the first-degree sexual exploitation of a minor charges, arguing that including masturbation, touching, and penetration in the definitions of the offense was too broad in light of the specific references in the indictments to “fondling.” The trial court overruled this objection, reasoning that, “based on the evidence presented, [ ] a more complete definition of sexual activity would be helpful to the jury, would be consistent with North Carolina law, and therefore, would be appropriate to give.” Defendant also requested that the trial court include jury instructions on the two charges of sexual offense with a child by an adult offender for the lesser included offense of first-degree sexual offense of a child. The trial court denied this request, reasoning that because the only differences between the crimes charged and this lesser included offense were that the former carry a higher mandatory minimum sentence while the latter contain additional language regarding the age of the defendant, giving an instruction on the lesser included offense
would be confusing to the jury, is unnecessary under the evidence as presented, and also could open the door to an inappropriate—inadvertent, but inappropriate argument to the jury that, basically, the jury should decide how punishment should be administered, with an argument that, well, both of them are the same level felony but one of them has a mandatory minimum of 300 months and the other one doesn't. So if you want to give the [D]efendant some compassion, then you'll find him guilty of the so-called lesser included offense, which I don't think would be an appropriate argument to make, and I don't think would be appropriate, under the evidence in this case.
After receiving the trial court's instructions, the jury retired to deliberate. Roughly 40 minutes later, the trial court received a note from the jury asking “to see the pictures of the adult hand touching the genital opening.” Once the trial court determined that the note referred to three of the State's exhibits featuring photographs of frames from the videos taken off Defendant's work cell phone, it brought the jurors back and republished those exhibits in open court without objection. Following roughly 10 more minutes of deliberations, the jury returned its verdict convicting Defendant on all charges. The trial court sentenced Defendant as a Prior Record Level I offender to two consecutive sentences of 300 to 348 months imprisonment and also ordered Defendant to register as a sex offender and enroll in satellite-based monitoring for the remainder of his natural life. Defendant gave oral notice of appeal to this Court.
Analysis
I. The trial court did not err in denying Defendant's motion to dismiss for insufficient evidence
Defendant first argues that the trial court erred in denying his motion to dismiss the two charges of first-degree sexual offense with a minor by an adult offender because the State failed to present sufficient evidence to support each element of the offense. We disagree.
In reviewing a trial court's denial of a motion to dismiss, this Court applies a de novostandard of review. See State v. Sanders, 208 N.C.App. 142, 144, 701 S.E.2d 380, 382 (2010). A defendant's motion to dismiss should be denied if “there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense.”State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Stone, 323 N.C. 447, 451, 373 S.E.2d 430, 433 (1988) (citation and internal quotation marks omitted). When ruling on a motion to dismiss, the trial court must “view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.” State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002) (citation omitted). “The evidence need only give rise to a reasonable inference of guilt in order for it to be properly submitted to the jury for a determination of [the] defendant's guilt beyond a reasonable doubt.” Stone, 323 N.C. at 452, 373 S.E.2d at 433 (citations omitted). However, a motion to dismiss should be allowed where the evidence does no more than raise a suspicion or conjecture as to the defendant's guilt. Id.
In the present case, Defendant was charged with two counts of first-degree sexual offense with a minor by an adult offender. Our General Statutes provide that “[a] person is guilty of sexual offense with a child if the person is at least 18 years of age and engages in a sexual act with a victim who is a child under the age of 13 years.” N.C. Gen.Stat. § 14–27.4A(a) (2013). A “sexual act” means “cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body....” N.C. Gen.Stat. § 14–27.1(4) (2013). Our Supreme Court has held that an “object” can include part of the human body, see, e.g., State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981), and this Court has recognized that penetration of the labia region of the vagina is sufficient to satisfy the penetration element of first-degree sexual offense. State v. Bellamy, 172 N.C.App. 649, 657–58, 617 S.E.2d 81, 88 (2005), appeal dismissed and disc. review denied,360 N.C. 290, 628 S.E.2d 384 (2006).
Here, despite the videos introduced into evidence at trial from Defendant's work cell phone showing the girls' vaginal areas being rubbed by fingers that, according to expert testimony, were “not consistent with the fingers of a child's hand,” Defendant argues that the State failed to present sufficient evidence of whether the fingers were his and whether those fingers ever penetrated the girls' genital openings. Defendant contends that his convictions were based entirely on a roughly thirteen-second sequence from the second video, and his argument here revolves around a painstaking, frame-by-frame breakdown of that sequence, which he contends excludes him from being the person whose fingers are shown touching the girls. Specifically, given the angle of the camera, the positions of the girls' bodies on the bed, and the camera's trajectory between them, Defendant asserts there is no possible way either of the girls could have been holding the cell phone, which means that at least one of his hands must have been occupied by doing so. Proceeding from that premise, Defendant insists that because the video shows fingers from two hands nearly simultaneously rubbing the girls' vaginal areas, there is no way his fingers could be in the video unless the camera was floating in mid-air operating itself.
However, our review of the record, including the videos, does not support Defendant's premise. Indeed, Defendant's conclusory assertion that neither of the girls could have been holding his cell phone is undermined by both the video itself and the audio that accompanies it. On the one hand, as the State notes in its brief, the video shows that at least one of the girls appears to be in a seated position that would have allowed her to freely operate Defendant's flip phone video camera with one hand. On the other hand, while Defendant's voice can be heard at a low volume in the background of the video, both the girls' voices are much louder, which suggests they were in closer proximity to the camera and its microphone than Defendant, which casts further doubt on his claim that the hands and fingers seen in the video could not have been his because he was holding the cell phone. We therefore conclude it would not have been impossible for one of the girls to have recorded this thirteen-second video sequence, which would be consistent with other portions of the videos in which the girls were either clearly holding the phone, such as when Defendant is shown standing in his undershorts in the third video, or made comments such as “[Janet], it didn't take,” which suggest unsuccessful attempts by the girls to record other conduct.
Defendant next takes issue with Nurse Benton's expert testimony that the fingers in the photographs taken from the video were “not consistent with the fingers of a child's hand.” Specifically, Defendant argues that because Nurse Benton never examined his hands or either of the girls' hands, she would not have been competent to render an opinion that the fingers in the video were consistent with his fingers or inconsistent with those of either Cynthia or Janet. While this may be true, contrary to Defendant's characterization of her testimony, it does not mean that Nurse Benton's expert opinion was so vague as to be nearly meaningless. Indeed, as Nurse Benton testified, her analysis was based on her “comparison of the size of the fingers against the size of the genital area.” As a pediatric practitioner with more than a decade of experience, this subject was well within Nurse Benton's competency as a witness, and our own review of the photographs supports her testimony. Put simply: the fingers do not appear proportionate to the girls' genital areas.
Defendant also supports his argument that he never touched Cynthia or Janet by emphasizing each girl's testimony and pretrial statements that he never did so. But this argument ignores Pogroszewski's testimony about how children react to and recover from the trauma of sexual abuse at their own pace and why the circumstances of this case made these girls' reluctance to disclose what happened unsurprising. It also ignores audio from other sections of the videos in which the girls can be heard saying things like “give it to me, give it to me, give it to me, Uncle Cecil,” and “this is fun.” We therefore conclude, viewing all the evidence in the light most favorable to the State, that there was sufficient evidence from which the jury could reasonably infer that the hands and fingers shown in the video and photographs belonged to Defendant.
Defendant further contends that even assuming arguendothe fingers were his, the trial court erred by failing to grant his motion to dismiss the charges of sexual offense because the State failed to present sufficient evidence of penetration. After noting that it is entirely possible to stimulate the female genitals by touch without actually penetrating the labia, Defendant argues that although the videos do show fingers moving over the girls' genital areas, the images are of such low quality that even a frame-by-frame analysis of them raises no more than a suspicion or conjecture of penetration based on pixelated blurs of color.
There are several reasons why this argument fails. First, although Defendant is correct that the videos are generally of poor quality, our review of them makes clear that they show fingers that are “not consistent with the fingers of a child's hand” rubbing up and down in between each girl's labia. Moreover, as the State notes in its brief, both girls appear to have their legs spread apart, which, consistent with Nurse Benton's testimony about how vaginal penetration can occur, would allow for the fingers to more easily enter and penetrate parts of their genital openings that would normally be concealed by the labia. Defendant invites this Court to engage in repeated slow-motion, frame-by-frame reviews of the videos, but in doing so misapprehends our standard of review and confuses our function with that of a jury. To be clear: we are not instant replay officials in a professional sports league whose task is to search for indisputable video evidence to uphold or overturn a contested call. Our job here is merely to determine whether there was sufficient evidence from which the jury could reasonably infer that the fingers in the video penetrated the girls' vaginas. In light of the preceding analysis, we conclude that there was. Accordingly, we hold that the trial court did not err in denying Defendant's motion to dismiss the sexual offense charges based on insufficient evidence.
II. The trial court did not plainly err by failing to instruct the jury on the lesser included offense of attempted sexual offense
Defendant also argues that the trial court committed plain error by failing to instruct the jury on the lesser included offense of attempted sexual offense. We disagree.
Defendant did not request an attempt instruction at trial or object to its omission, so the applicable standard of review is plain error. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). When evaluating jury instructions under this standard, we “must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983) (citation omitted). However, “plain error does not simply mean obvious or apparent error.” Id.at 660, 300 S.E.2d at 378 (internal quotation marks omitted). Instead, to prevail under the plain error standard, Defendant must establish that the alleged error in the trial court's jury instructions “was so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Thomas, 153 N.C.App. 326, 331–32, 570 S.E.2d 142, 145 (citation and internal quotation marks omitted), appeal dismissed and disc. review denied, 356 N.C. 624, 575 S.E.2d 759 (2002). Thus, “if the evidence would permit a jury rationally to find [the] defendant guilty of the lesser offense and acquit him of the greater[,]” the trial court's failure to give the instruction on the lesser offense constitutes plain error. State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986) (citation omitted). Yet, “when the State's evidence is clear and positive with respect to each element of the offense charged, and there is no evidence showing the commission of a lesser included offense, the trial judge may refuse to instruct the jury upon that offense.” State v. Brown, 112 N.C.App. 390, 397, 436 S.E.2d 163, 168 (1993) (citation and internal quotation marks omitted), affirmed per curiam, 339 N.C. 606, 453 S.E.2d 165 (1995).
In the present case, Defendant contends that there is no conclusive proof that the fingers in the videos penetrated the girls' genital openings and the photographs are at best ambiguous. Defendant therefore argues that at most, the evidence only warranted his conviction for attempted sexual offense, and he further insists that the trial court's failure to instruct the jury on this lesser included offense amounted to plain error because, as our Supreme Court has recognized, without an appropriate lesser included instruction, if a defendant appears guilty of something, “the jury is likely to resolve doubts in favor of conviction.” State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 203, 344 S.E.2d 775, 781 (1986). In support of this argument, Defendant cites our Supreme Court's prior holding that in the context of sexual offenses “when the evidence pertaining to the crucial element of penetration conflicts” the jury must be instructed on lesser included offenses, see Johnson, 317 N.C. at 436, 347 S.E.2d at 18, as well as this Court's unpublished decisions in State v. Roughton, 201 N.C.App. 592, 689 S.E.2d 246 (2009) (unpublished), available at2009 WL 4913450, and State v. Robison, 209 N.C.App. 471, 708 S.E.2d 215 (2011) (unpublished), available at2011 WL 236714.
We note first that Defendant's reliance on Johnson, Roughton,and Robisonis misplaced, given that the conflicts over the element of penetration and the nature of the evidence at issue in those cases are easily distinguished from the present facts. In Johnson,our Supreme Court found that the trial court plainly erred by failing to instruct the jury on the lesser included offense of attempted first-degree rape because there was a conflict in the evidence surrounding the act of penetration where the victim testified at trial that the defendant “put his penis into her vagina,” but there was also evidence that the victim had previously given two statements in which she explained that the defendant only attempted but was unable to accomplish penetration. 317 N.C. at 436, 347 S.E.2d at 18. In Roughton,this Court reached the same result where the victim testified that the defendant put his “boy who-who inside her who-who” but the medical evidence presented revealed no signs of acute injury or healed trauma and the forensic interviewer who interviewed the victim testified that she had previously reported that the defendant had “only placed his penis onher ... vagina, her butt, and her ... chest.” 2009 WL 4913450 at *6 (internal quotation marks omitted, emphasis in original). Similarly, in Robison,we vacated the defendant's conviction for first-degree sexual offense because the trial court erred by denying the defendant's motion to instruct the jury on the lesser included offense of attempted sexual offense where the victim's testimony was so ambiguous as to whether the defendant penetrated her anus with his penis and fingers that the jury rationally could have found the defendant not guilty of first-degree sexual offense and convicted him of attempted first-degree sexual offense instead. 2011 WL 236714 at *5.
Here, by contrast, the first-degree sexual offense charges against Defendant are based not on contradictory or ambiguous accusations or testimony by the victims, but instead on videos recorded on his own cell phone. Thus, while it is true that Defendant denied ever touching the girls and that the girls never contradicted this denial in their testimony or pre-trial statements, Johnson, Roughton,and Robisonare simply inapplicable here in the face of the direct evidence the jury could properly rely on to resolve any conflicts. Moreover, the only “conflict” Defendant purports to identify as to the issue of penetration basically amounts to his assertion that it is impossible to pinpoint the precise moment when penetration occurred. As the preceding analysis makes clear, we are not persuaded by Defendant's characterization of the video and photographic evidence. Indeed, we find that the State's video and photographic evidence is “clear and positive with respect to each element of the offense charged.” See Brown, 112 N.C.App. at 397, 436 S.E.2d at 168. Accordingly, we hold that the trial court did not err—let alone commit plain error—by failing to instruct the jury on the lesser included offense of attempted first-degree sexual assault.
III. The jury's verdict was not tainted by false testimony
Defendant next contends that his convictions for first-degree sexual offense and first-degree sexual exploitation of a minor must be vacated, and his case remanded for a new trial on those charges, because the jury's verdict was tainted by false testimony from the State's witness Detective Bailey. We disagree.
This Court has previously recognized that, “[w]hen a defendant shows that testimony was in fact false, material, and knowingly and intentionally used by the State to obtain his conviction, he is entitled to a new trial.” Bellamy, 172 N.C.App. at 665, 617 S.E.2d at 93 (citation and internal quotation marks omitted). “Testimony is material in this context if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id.at 666, 617 S.E.2d at 93 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342, 349–50 (1976) (internal quotation marks omitted)).
In the present case, Defendant argues that Detective Bailey testified falsely when he stated during trial that the second video he extracted from Defendant's cell phone “showed a portion of a white male's face licking the vaginal area of the juvenile girls.” Defendant supports this argument with a frame-by-frame analysis that he conducted of the second video, which he contends does not include a single frame showing any portion of a male face or any image of any person licking anything. Defendant further insists that this false statement was extremely prejudicial because, coming from a representative of the State with a duty to make a disinterested and impartial investigation, Detective Bailey's testimony likely carried great weight with the jury, thereby making it more likely that a reasonable juror would conclude that Defendant had committed the offenses charged.
Our review of the video provides some support for Defendant's argument that Detective Bailey's testimony that the video shows a white male face licking the girls was incorrect. Although the State included in its appellee brief its own frame-by-frame analysis of the video, which it argues does, in fact, show a white male face licking the girls, we could not find one. The image quality in this section of the video is very poor, but we are more persuaded by Defendant's argument that what the State contends is a face is actually fingers; indeed, Defendant's characterization is more consistent with the video evidence already discussed supra.But that does not end our inquiry because, as this Court held in Bellamy,“even assuming arguendothe testimony was false,” Defendant also must satisfy “his burden of proving the evidence was material and knowingly and intentionally used by the State to obtain his conviction.” Id.As in Bellamy,we do not believe Defendant can satisfy that burden here.
First, our review of the trial transcript does not support Defendant's argument that the State knowingly and intentionally used this testimony to obtain his conviction, given that the prosecutor never specifically elicited any statements from Detective Bailey or any other witness regarding whether or not the video showed a white male face, nor did the prosecutor ask any follow-up questions regarding the white male face Detective Bailey testified that he saw. Indeed, apart from that single sentence of Detective Bailey's testimony, the record does not include any further references to this mysterious white male face throughout the remainder of Defendant's trial.
Second, as to the issue of materiality, given the fact that the vast majority of the State's evidence focused not on Detective Bailey's fleeting unsolicited reference to a white male face but instead on the sections of the second video that clearly depict the girls' vaginal areas being rubbed by fingers that were “not consistent with the fingers of a child's hand,” we are not persuaded by Defendant's argument that Detective Bailey's incorrect testimony was prejudicial. Defendant contends that it was because, if the jurors believed the video showed him licking the girls, they would also be more likely to believe the fingers touching the girls belonged to him, but this argument fails because it is predicated on Defendant's already-rejected premise that there was no possible way the fingers in the video were his because he must have been holding the cell phone. Moreover, although Defendant disputes that the fingers shown in the video were his, there was never any dispute that the only adult in the room with the girls that afternoon was Defendant. Because we conclude that there was no “reasonable likelihood that [Detective Bailey's] false testimony could have affected the judgment of the jury,” see id.at 666, 617 S.E.2d at 93, we therefore hold this argument is without merit.
IV. Defendant's trial counsel did not render ineffective assistance of counsel
In a related argument, Defendant claims his trial counsel provided ineffective assistance of counsel by failing to object to or cross-examine Detective Bailey's false testimony that the second video showed a white male face licking the girls. We disagree.
In order to prevail on an ineffective assistance of counsel claim, a defendant must show that: (1) his attorney's performance was so seriously deficient that the attorney was not functioning as counsel for Sixth Amendment purposes, and (2) the deficient performance prejudiced the defense such that there is a reasonable probability that but for counsel's errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 (1984) ; see also State v. Braswell, 312 N.C. 553, 561–63, 324 S.E.2d 241, 248 (1985).
Here, Defendant argues that his trial counsel's performance was deficient because he failed to demonstrate to the jury through objection or cross-examination that there was no factual basis for Detective Bailey's testimony that the second video showed a white male face licking the girls. However, even assuming arguendothat Defendant could satisfy the first element required to prevail on a claim for ineffective assistance of counsel, this argument fails because we conclude that, in light of the preceding analysis, Defendant cannot establish that he was prejudiced by his trial counsel's allegedly deficient performance. Because Defendant cannot show that there is a reasonable probability that the result of the trial would have been different but for the error, we hold this argument is without merit.
V. The trial court did not err in overruling Defendant's objection to its proposed jury instructions on the first-degree sexual exploitation of a minor charges
Finally, Defendant argues that the trial court erred because its instructions to the jury on the first-degree sexual exploitation of a minor charges included a definition of “sexual activity” that was considerably broader than the conduct charged in the indictment. We disagree.
Our General Statutes provide in pertinent part that a person commits the offense of first-degree sexual exploitation of a minor if he “[u]ses, employs, induces, coerces, encourages, or facilitates a minor to engage in ... sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity.” N.C. Gen.Stat. § 14–190.16(a)(1) (2013). “Sexual activity” is defined to include, inter alia,masturbation, vaginal, anal, or oral intercourse, apparent sexual stimulation by touching, the insertion of an object or body part into the anus or vagina of another person, or the lascivious exhibition of genitals. N.C. Gen.Stat. § 14–190.13(5) (2013).
In the present case, the indictments charged Defendant with one count of first-degree sexual exploitation of a minor against each girl, alleging that he encouraged each girl “to engage in and assist others to engage in sexual activity, in that [he] fondled the vagina of this minor for the apparent purpose of sexual stimulation....” Defendant complains, however, that the trial court's instructions to the jury on these charges defined “sexual activity” more broadly as
[m]asturbation, whether done alone or with another human; touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals or pubic area of another person, or the insertion of any part of a person's body, other than the male sexual organ, or of any object into another person's vagina.
Thus, Defendant contends that by overruling his objection to the definition of “sexual activity” included in the jury instructions for this offense, the trial court violated our Supreme Court's holding in State v. Taylorthat “[i]t is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.” 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980).
As our Supreme Court has previously recognized, “the primary purpose of the indictment is to enable the accused to prepare for trial.” State v. Farrar, 361 N.C. 675, 678, 651 S.E.2d 865, 866–67 (2007) (citation and internal quotation marks omitted). As this Court has explained, “a trial court's jury instructions which vary from the allegations of the indictment might constitute error where the variance is regarding an essential elementof the crime charged.” State v. Lark, 198 N.C.App. 82, 92, 678 S.E.2d 693, 700–01 (2009) (emphasis in original), disc. review denied,363 N.C. 808, 692 S.E.2d 111 (2010). However, in the context of sex offense prosecutions, although the State is bound to provide substantial evidence at trial of any sexual act alleged in the indictment, see State v. Loudner, 77 N.C.App. 453, 453–54, 335 S.E.2d 78, 79 (1985), “the particular sexual act is not an essential element required to be alleged in the indictment.”Lark, 198 N.C.App. at 93, 678 S.E.2d at 701. Therefore, the trial court “is permitted to instruct the jury on all sex acts supported by the evidence, even if those sex acts were not set out in the indictment.” State v. Treadway, 208 N.C.App. 286, 299, 702 S.E.2d 335, 346 (2010) (citation omitted). Thus, the rule is that “the trial court's instructions must conform to the evidence presented at trial, but are not limited to those sex acts alleged in the indictment.” Id.
Here, although the State was not required to allege the specific type of sexual activity that gave rise to the indictment, the indictment alleged that Defendant committed the offense of first-degree sexual exploitation of a minor by fondling the girls' vaginas. As the preceding analysis makes clear, we have no trouble concluding that the State provided substantial evidence to satisfy this allegation. We also conclude that the evidence introduced was sufficient to support the additional definitions of “sexual activity” included in the trial court's jury instructions that were not alleged in the indictment. Accordingly, we hold that the trial court did not err in overruling Defendant's objection.
NO ERROR in part; NO PREJUDICIAL ERROR in part.
Judges GEER and DILLON concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from judgments entered 12 June 2014 by Judge Jack W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 22 January 2015.
Onslow County, Nos. 13–CRS–50929–30.