Opinion
No. COA10-953
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgment entered 17 March 2010 by Judge Wayland J. Sermons, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 12 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State. Sue Genrich Berry, for defendant-appellant.
Beaufort County No. 09 CRS 51520.
Conrad Demond Midgette ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of felonious breaking and entering and taking indecent liberties with a child. We find no error in part and dismiss in part.
I. BACKGROUND
On 2 June 2009, "Teresa" arrived home from school and walked outside in her bare feet to check her mailbox. When Teresa arrived at the mailbox, she noticed defendant, who lived across the street with his mother, exiting a vehicle parked in his front yard. Defendant crossed the street, approached Teresa, and asked her several times what she wanted for her graduation. Teresa found defendant's question odd because she "wasn't even graduating that year," and because defendant never previously offered Teresa gifts or encouragement. Teresa replied each time that she did not want anything, but defendant kept asking her what she wanted. Defendant stated, "There's got to be something you want." Teresa again replied in the negative.
We use pseudonyms to protect the identity of the victim and for ease of reading. Furthermore, since the parties do not dispute that Teresa was less than sixteen years of age at the time of the alleged offenses, we will not identify her age in this opinion in order to further protect her identity.
Teresa told defendant that she had to go inside her home to put on some shoes. Teresa entered her home, closed the door behind her, and then went to her bedroom for her shoes. Although she did not give defendant permission to enter her home, as she turned around to put on her shoes, she saw him standing at her bedroom door. As she walked by defendant and entered her living room, she told defendant that she was going outside to feed her dogs.
Defendant followed Teresa into the living room and asked her where her father was. Teresa incorrectly told defendant that her father was "at the gas station around the corner" because she hoped this would encourage him to leave. Defendant did not leave Teresa's home. Teresa opened the front door, and told him to "get out," but he did not leave.
Defendant then closed the front door and looked out the window. Defendant kissed Teresa on her neck in the living room and asked her if she wanted to be his "little girlfriend." Teresa answered in the negative, but defendant continued kissing her on her neck. As he kissed Teresa, he touched her on her rear end and began to "go up" underneath Teresa's shirt with his hand. Defendant's hand was "almost up to [Teresa's] chest" when she pushed him away.
Defendant continued to kiss Teresa on her neck as he attempted to unbuckle her belt. Defendant asked Teresa, "Do you let your boyfriend do this?" Teresa pushed defendant's hands away from her belt. Defendant then kissed Teresa on her lips while he attempted "to get in [her] pants . . . from the back." However, Teresa pushed his hands away.
After Teresa pushed defendant's hands away the third time, defendant asked her if she wanted his phone number. Teresa replied in the affirmative, hoping that after she wrote down defendant's phone number, he would leave. Teresa wrote defendant's phone number on a piece of paper, and then defendant asked Teresa if she had a cell phone. Teresa replied in the negative. Defendant kissed Teresa once on her mouth before he exited Teresa's home through the front door. After defendant left, Teresa tore up the paper with defendant's phone number and went to the bathroom and brushed her teeth.
Approximately fifteen minutes after the incident, Teresa's younger brother, "Ike," arrived home from school, but Teresa did not tell him what happened. Ten minutes after Ike arrived home, Teresa's older sister, "Ashleigh," arrived home from school. Teresa told Ashleigh only that she talked to defendant "at the mailbox" after she arrived home from school. Teresa did not tell Ashleigh everything because she did not want Ashleigh to "tell anybody." When Teresa's father returned home from work that evening, she did not tell him what happened because she was "afraid to tell him."
Three days later, on 5 June 2009, Teresa returned home from school at 3:00 p.m. and heard "tapping" on the rear window of her home. Teresa called Ashleigh, planning to tell her what defendant had said and done earlier that week. However, Teresa did not tell Ashleigh about the previous incident at that time. Ashleigh told Teresa to "check all the windows and see if there was anyone there."
Teresa checked all of the windows, but was unable to determine the source of the "tapping." Teresa then heard music coming from defendant's vehicle across the street. Teresa thought that it was "unusual" for defendant to be home at that time of day because she had not seen defendant's vehicle at his home since the previous incident and because defendant was not normally at his residence when Teresa arrived home from school.
Teresa called Ashleigh again and told her that defendant was at home. Ashleigh replied, "Why are you so scared for?" Teresa then told Ashleigh that she would call her back, and hung up. When Teresa hung up, she looked out a window and saw defendant walking toward her home. Teresa felt "very scared." Teresa called Ashleigh a third time and notified her that defendant was walking toward her home. Ashleigh told her to lock the door, check the windows, and not open the door. Teresa then hung up the phone.
Teresa then observed defendant repeatedly knocking on her front door for two minutes. Teresa called Ashleigh a fourth time and told her that defendant "kept knocking" on the front door. Ashleigh told Teresa to "get something and open the door and hit [defendant] with it and run." However, Teresa remained inside her home in her father's room.
Ashleigh then called her friend, "Mike," who lived next door and asked Mike to check on Teresa. Teresa observed Mike walk toward her home. When he arrived at Teresa's home, defendant left. Mike stayed at Teresa's home until Ashleigh arrived with her aunt and cousin. Teresa then told Ashleigh, her aunt, and her cousin about the incidents on 2 and 5 June 2009. Teresa said the first time defendant approached, she felt "uneasy" and "[k]ind of nervous" because she was "not really used to him talking to [her] after [she got] home from school, and he was just coming too close for [her]." Teresa also said that when defendant put his hands down the back of her pants, she felt "scared and nervous" and that she thought she was "about to get raped." Defendant was arrested later that evening.
Defendant was indicted on charges of felonious breaking and entering, indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1 and attempted statutory rape. Defendant's case was heard at the 15 March 2010 criminal session of Beaufort County Superior Court. At trial, Teresa testified that she was familiar with defendant because when Teresa was in sixth and seventh grade, she, Ashleigh, and Ike stayed at defendant's house after school. Usually defendant's mother was home but on several occasions when his mother had not arrived home from work, Teresa and her siblings stayed at defendant's house alone with him. Teresa testified that she did not prefer staying at defendant's house after school because "when we would go over there, then [defendant] would be touching us and stuff." According to Teresa, defendant "would give us little hugs and touch our butts." Teresa testified that on one occasion when she and her siblings were at defendant's house alone with him, defendant gave Teresa a "massage and started going down [her] shirt."
Ashleigh testified that when she stayed at defendant's house after school, he touched Teresa and her in "inappropriate places." Ashleigh testified that on one occasion, while she sat at a table in defendant's house completing her homework, defendant "came behind [her] and started massaging [her], and his hands started getting lower and he touched [her] nipples[.]" Ashleigh testified that defendant stated, "I'm sorry. I didn't mean to do that[.]" Ashleigh did not tell her father about the incident because she was afraid defendant "would try to like hurt [her] or something."
At the close of the State's evidence, the trial court dismissed the charge of attempted statutory rape. On 17 March 2010, the jury returned a verdict finding defendant guilty of felonious breaking and entering and indecent liberties with a child. The trial court consolidated judgment and sentenced defendant to a minimum term of twenty months to a maximum term of twenty-four months in the custody of the North Carolina Department of Correction. The trial court also recommended defendant for an evaluation for satellite-based monitoring. Defendant appeals.
II. INDICTMENT
Defendant argues that Count One of the indictment was fatally defective since it failed to allege that defendant's intent at the time of the breaking or entering was to commit a felony or larceny. Defendant further argues that since the charge of sexual assault is a not a "cognizable crime in this State," the indictment should have alleged misdemeanor breaking or entering. We disagree.
A. Standard of Review
"[W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000) (citation omitted). This Court reviews the sufficiency of the indictment de novo. State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009).
B. Requirements for Indictments
N.C. Gen. Stat. § 15A-924(a)(5) (2009) requires that a criminal pleading contain:
A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.
N.C. Gen. Stat. § 15A-924 (a)(5) (2009). "The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein." State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992) (citing N.C. Gen. Stat. § 14-54(a) (1986)).
"The purpose of a bill of indictment is to put a defendant on such notice that he is reasonably certain of the crime of which he is accused." State v. McGriff, 151 N.C. App. 631, 634, 566 S.E.2d 776, 778 (2002). "An indictment is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense." Id. (citation and quotation marks omitted).
"In general, an indictment couched in the language of the statute is sufficient to charge the statutory offense. It is also generally true than an indictment need only allege the ultimate facts constituting the elements of the criminal offense and that evidentiary matters need not be alleged." State v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d 42, 46 (1998) (internal citation omitted).
"Regarding an indictment drafted under N.C.G.S. § 14-27.4, our Supreme Court has held that such an indictment is sufficient to charge the crime of first-degree sexual offense and to inform the defendant of such an accusation without specifying which 'sexual act' was committed." Id. at 699, 507 S.E.2d at 46-47. Furthermore, our Supreme Court has held that "an indictment charging a defendant under N.C.G.S. § 14-202.1 was sufficiently specific without indicating exactly which of [the] defendant's acts constituted the 'immoral, improper and indecent liberty.'" Id. (citation omitted).
Applying the foregoing principles to the indictment in the instant case, we conclude that the indictment charging defendant with felonious breaking and entering and taking indecent liberties with a child sufficiently informed the defendant of the conduct for which he was being charged.
In the instant case, the indictment stated:
The jurors for the State upon their oath present that on or about [2 June 2009] and in [Beaufort County], the defendant . . . unlawfully, willfully and feloniously did break or enter a building occupied by [Teresa], used as a residence, located at . . . Washington, North Carolina. At the time of the breaking or entering, the defendant broke and entered with the intent to commit a sexual assault therein.
Defendant contends that since "sexual assault" is not "a cognizable crime in this State," that the indictment was fatally defective. We disagree.
Defendant's indictment also stated, in pertinent part:
[O]n or about [2 June 2009] and in [Beaufort County], the defendant . . . unlawfully, willfully and feloniously did take and attempt to take immoral, improper and indecent liberties with a female child under the age of 16, to wit: with [Teresa], for the purpose of arousing and gratifying sexual desire, and did commit and attempt to commit a lewd and lascivious act upon the body of a female child less than 16 years of age, to wit: with [Teresa], and the defendant was over 16 years of age and at least five years older than the child, in violation of N.C.G.S. 14-202.1.
There is no requirement that defendant's indictment for felonious breaking and entering must allege the specific felony defendant intended to commit inside Teresa's residence. See State v. Silas, 360 N.C. 377, 381, 627 S.E.2d 604, 607 (2006). It was sufficient that the indictment alleged, along with the other required elements of breaking or entering, that defendant intended to commit a felony or larceny inside the building. See id.
Despite the lack of specificity as to the actual felony defendant intended to commit when he entered Teresa's home, both counts in the indictment "contain language sufficient in law to appraise defendant of the fact that he was being charged" with felonious breaking and entering and taking indecent liberties. Blackmon, 130 N.C. App. at 699, 507 S.E.2d at 47. By reading defendant's indictment as a whole, we conclude that the term "sexual assault" used in the first paragraph of defendant's indictment, denoting defendant's charge for felonious breaking or entering, was subsequently defined in the following paragraph as the crime of taking indecent liberties with a child, which is a felony. See State v. Crisp, 126 N.C. App. 30, 36, 483 S.E.2d 462, 466 (1997) ("The indictment, when read as a whole, sufficiently stated facts which support every element of the crime charged and apprised defendant of the specific charge against him."). Therefore, by reading the indictment as a whole, defendant was on notice and was reasonably certain that the felony he was accused of committing as part of the felony breaking or entering was taking indecent liberties with Teresa. Defendant's issue on appeal is overruled.
III. JURY INSTRUCTIONS
Defendant argues that the trial court erred in its instructions to the jury regarding Count One of the indictment by failing to define the crime defendant allegedly intended to commit. We disagree.
Defendant asks this Court to review for plain error because he did not object to the jury instruction at trial. State v. Odom, 307 N.C. 655, 656, 300 S.E.2d 375, 376 (1983); see also N.C.R. App. P. 10(b)(2), 10(c)(4) (2009). Plain error applies only to jury instructions and evidentiary matters in criminal cases. State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004). "In deciding whether a defect in the jury instruction constitutes 'plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." Odom, 307 N.C. at 661, 300 S.E.2d at 378-79. "[E]ven when the 'plain error' rule is applied, [i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'" Id. at 660-61, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1736 (1977)). If the jury instruction "'fairly and correctly presents the law, it will afford no ground for reversing the judgment[.]'" State v. Tomblin, 276 N.C. 273, 276, 171 S.E.2d 901, 903 (1970) (quoting State v. Valley, 187 N.C. 571, 572, 122 S.E. 373, 374 (1924)).
In the instant case, the trial court instructed the jury, without objection, on felonious breaking or entering as follows, in pertinent part:
Now, the defendant has been charged with felonious breaking or entering into another's building without his consent with the intent to commit a felony. For you to find the defendant guilty of this offense, the State must prove four things beyond a reasonable doubt.
. . .
And, fourth, that at the time of the breaking or entering, the defendant intended to commit the felony of sexual assault therein.
So, if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant broke into or entered a building without the consent of the owner or tenant, intending at that time to commit a sexual assault, it would be your duty to return a verdict of "guilty" of felonious breaking or entering. If you do not so find, or if you have a reasonable doubt as to one or more of these things, you will not return a verdict of "guilty" of felonious breaking or entering but must determine whether the defendant is guilty of non-felonious breaking or entering.
The trial court did not define "sexual assault" for the jury. However, the trial court further instructed the jury, without objection, on the elements the State was required to prove beyond a reasonable doubt for the jury to convict defendant on the charge of taking an indecent liberty with a child. The trial court instructed the jury that the first element of taking an indecent liberty with a child was that:
the defendant willfully took or attempted to take an indecent liberty with a child for the purpose of arousing or gratifying sexual desire. An indecent liberty is an immoral, improper, or indecent touching or act by the defendant upon the child, or that the defendant willfully committed or attempted to commit a lewd or lascivious act upon a child.
(emphases added). "[S]exual gratification may be inferred from the evidence relating to the defendant's actions." State v. Ainsworth, 109 N.C. App. 136, 146, 426 S.E.2d 410, 416 (1993). Since defendant was charged with taking an indecent liberty with a child, the State was required to prove beyond a reasonable doubt that defendant committed an "immoral, improper, or indecent touching" or "a lewd or lascivious act" upon Teresa, and did so for the purpose of arousing or gratifying sexual desire.
According to Teresa's testimony, on 2 June 2009, defendant entered her home without permission and asked her if she wanted to be his "little girlfriend." On the same day, defendant kissed Teresa on her neck, touched her on her rear end, and placed his hands under her shirt near her breasts. Teresa testified that defendant's hand was "almost up to [her] chest" when she pushed him away. Defendant then asked Teresa, "Do you let your boyfriend do this?" as he kissed her on her neck and attempted to unbuckle her belt and place his hands down the back of her pants. Before defendant left Teresa's home, he gave her his phone number and kissed her on her mouth.
Teresa also testified that when she was in sixth and seventh grade, she stayed at defendant's house after school. Teresa further testified that she did not prefer staying at defendant's house after school because "when we would go over there, then [defendant] would be touching us and stuff." According to Teresa, defendant "would give us little hugs and touch our butts." On one occasion, when Teresa and her siblings were at defendant's house alone with him, defendant gave Teresa a "massage and started going down [her] shirt."
This evidence of defendant's actions creates an inference that he acted for the purpose of arousing or gratifying sexual desire and supports the trial court's instructions for taking indecent liberties with a child. Therefore, the trial court's instructions to the jury, taken as a whole, "fairly and correctly" presented the law and were sufficient to explain the requisite felonious intent required for felonious breaking or entering.
Assuming arguendo that the trial court's failure to define "sexual assault" was error, we do not find that it amounted to "plain error" so as to entitle defendant in this case to a new trial because it did not have a probable impact on the jury's finding defendant guilty of felonious breaking or entering. Teresa's testimony regarding the events of 2 and 5 June 2009 was corroborated by her father, her aunt, Ashleigh, Mike, and two law enforcement officers. Furthermore, Teresa and Ashleigh both testified that, on several prior occasions, defendant touched them inappropriately on their breasts and rear ends when they were alone with defendant at his house.
This evidence was sufficient for the jury to conclude that defendant willfully took an indecent liberty with Teresa, and that he did so for the purpose of arousing or gratifying sexual desire. Defendant has not shown that the trial court's failure to define "sexual assault" is "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury having reached a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987). Defendant's issue on appeal is overruled.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL ("IAC")
Defendant argues that his trial counsel failed to provide the effective assistance of counsel to his prejudice.
"When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052 (1984)).
In order to do so, a defendant must satisfy a two-part test:
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.
State v. al-Bayyinah, 359 N.C. 741, 751, 616 S.E.2d 500, 508-09 (2005) (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
Both prongs of this test must be satisfied in order to establish ineffective assistance of counsel. To demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at 751, 616 S.E.2d at 509 (internal quotations and citations omitted).
As to whether defendant's IAC claims may be resolved on direct appeal, this Court has stated, "[c]laims of ineffective assistance of counsel are . . . most properly raised in a motion for appropriate relief." State v. Jones, 176 N.C. App. 678, 688, 627 S.E.2d 265, 271 (2006).
Our Supreme Court has held that an ineffective assistance claim brought on direct review will be decided on the merits only "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."
Id. (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)). "Therefore, on direct appeal we must determine if these ineffective assistance of counsel claims have been prematurely brought. If so, we must dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent [motion for appropriate relief] proceeding." al-Bayyinah, 359 N.C. at 752, 616 S.E.2d at 509 (internal quotations and citation omitted).
In the instant case, we cannot adequately review, based on the cold record before this Court, defendant's remaining claim that he received ineffective assistance of counsel at trial. Therefore, this claim is dismissed without prejudice. Defendant has a right to raise this claim in a motion for appropriate relief in Superior Court.
V. CONCLUSION
Defendant received a fair trial, free from error.
No error in part, dismissed in part.
Judges STROUD and HUNTER, JR., Robert N., concur.
Report per Rule 30(e).