Opinion
No. COA09-1093
Filed 18 May 2010 This case not for publication
Appeal by defendant from judgments entered 6 March 2009 by Judge James G. Bell in New Hanover County Superior Court. Heard in the Court of Appeals 19 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State. Kevin P. Bradley for defendant-appellant.
New Hanover County Nos. 07 CRS 58304-58309
Defendant was found guilty of six counts of incest, six counts of statutory rape of a fifteen-year-old, and six counts of statutory sexual offense with a fifteen-year-old. On the sole ground that he received ineffective assistance of counsel, defendant cites three deficiencies in counsel's performance: (1) counsel failed to object to hearsay testimony regarding the time and location of the alleged crimes; (2) counsel failed to object to a police investigator's statement of opinion as to the time and location of the alleged crimes; and (3) counsel failed to object to the court's omission of jury instructions regarding prior, out-of-court statements. We find no prejudicial error.
FACTS
The State presented evidence tending to show that during the summer of 2001, defendant's biological daughter ("Sandra") moved from Shelby to Wilmington to live with defendant. At the time, Sandra, who was born 6 September 1985, was fifteen years old. Sandra testified that shortly after moving in with defendant in June 2001, she and defendant engaged in a food fight. As she was cleaning herself off with a water hose, defendant inserted his hands inside her shirt and touched her breasts. The next morning defendant came into her bedroom and performed cunnilingus on her. Either that day or the next, defendant engaged in sexual intercourse with her. Thereafter, at least once per week during that summer defendant engaged in oral sex and vaginal intercourse with Sandra. Just before Sandra turned sixteen in September 2001, defendant and Sandra moved to Florida.
The sexual activity continued until Sandra was twenty years old and she moved in with a female friend and her parents. Sandra told her friend's father and her friend about the sexual activity she had been having with her father. The friend's father told Sandra's maternal aunt about the abuse and the maternal aunt called law enforcement.
Defendant confessed to having sexual activity with his daughter when asked about it by the friend's father. About a week after Sandra moved out of his residence, defendant confessed to another friend that he had been having sex with Sandra and that he had impregnated her and paid for an abortion. A fellow inmate at the New Hanover County Detention Facility testified that defendant told him that he had engaged in sexual activity with his daughter and had impregnated her, and that defendant showed him a photograph of a female who had a birthmark in her private area which defendant indicated was similar to one in his daughter's private area. The inmate received nothing in exchange for his testimony given that he is currently serving a life sentence on drug-related convictions.
The court submitted special verdicts to the jury to determine whether North Carolina had jurisdiction to try defendant regarding acts which allegedly occurred from 1 August 2001 through 31 August 2001. The jury determined that North Carolina did not have jurisdiction to try defendant for acts occurring during that time frame. The jury found defendant guilty of acts occurring between 1 June 2001 and 31 July 2001. The convictions were consolidated for judgment and defendant was sentenced to two terms of a minimum of 288 months and a maximum of 355 months, to run consecutively.
DISCUSSION
The sole issue presented by defendant is whether he was denied effective assistance of counsel. We hold that even assuming, without deciding, that defense counsel's representation at trial was deficient, it was not prejudicial. We therefore decline to remand this case for further findings, and find no prejudicial error in the jury's verdicts.
To constitute ineffective assistance of counsel in derogation of constitutional guarantees, an attorney's performance (1) must have been deficient, and (2) must have prejudiced the defense. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). The first element requires a showing that counsel made serious errors; and the latter requires a showing that, even if counsel made an unreasonable error, "there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Id. at 563, 324 S.E.2d at 248; see State v. Pate, 187 N.C. App. 442, 448-49, 653 S.E.2d 212, 217 (2007) ("A `reasonable possibility' of a different result at trial is a much lower standard than that a different result `probably' would have been reached at trial[.]").
Defendant contends that several portions of testimony offered by Detective Savitts at trial were inadmissible hearsay, and that defendant's trial counsel was ineffective by failing to object. One of the central issues at trial was whether the alleged sex acts occurred in North Carolina, and defendant claims he was prejudiced by the detective's hearsay regarding the time frame of the crimes charged, because Sandra was unclear about when the sex acts occurred.
Contrary to defendant's characterization of Sandra's testimony, the record shows that Sandra was adequately clear on when the sex acts occurred, and whether or not the acts occurred in North Carolina.
Q. . . . [W]hat is your date of birth?
A. September 6, 1985.
. . . .
Q. Tell us why you were thinking about leaving your grandmother's house?
A. Because they were strict. They wanted me to be an A/B student and I wasn't. I sucked at school.
. . . .
Q. So what did you do?
A. I was telling my dad about it and he said, "Well, I'll talk to [my live-in girlfriend] and you can come stay with us."
. . . .
Q. And how old were you [when you went to pick up your stuff from your grandmother's house]?
A. I was 15.
. . . .
Q. And did you live in [your father's house on Bradford Road] for about three months?
A. Something like that.
. . . .
Q. Where did you move after leaving that residence?
A. After there we moved to Florida.
Q. Where did you turn 16?
A. In Florida.
. . . .
Q. I see. All right. Now, when this sexual activity started at the hands of the defendant in June of 2001, that would have been — is that the summer before you turned 16?
A. Yeah.
Q. All right. How often did the defendant engage in actual sexual intercourse with you over that three-month period prior to moving to Florida?
A. I'm not sure.
Q. Tell me how many times you know it took place, the minimum number of times.
A. It was, like, just about every day.
Q. Is it safe to say that it took place at least one time a week?
MS. HARGROVE: Objection to the leading.
THE COURT: Overruled.
Q. . . . . Is it safe to say that it took place at least one time a week?
A. Yes, um-hum.
Q. Okay. And it sounds like many more times a week than that actually?
MS. HARGROVE: Objection.
THE COURT: Overruled.
Q. . . . And on a weekly basis did this include vaginal intercourse?
A. Yeah.
Q. And on a weekly basis did this include oral sex where the defendant performed oral sex on you?
A. Sometimes.
Q. Where he touched his mouth to your vagina?
A. Yeah.
Comparing this testimony to Detective Savitts' testimony, it is apparent that the detective recounted essentially the same facts without any meaningful additions.
Q. Detective Savitts, when all of this started in the time that [defendant's girlfriend] was out of town with her children, could [Sandra] tell you what month it occurred during her 15th year?
A. Yes, she advised that it was June.
Q. June of her 15th year?
A. Yes.
Q. And that would have been June 2001?
A. Yes, it would.
Q. Were you able to narrow it down in that month or you just knew that it happened in that month?
A. I just knew that it happened in that month. We weren't able to narrow it down specifically when in June that it occurred.
. . . .
Q. How long did this sexual activity, including intercourse and oral sex and digital penetration, how long did that occur according to [Sandra]?
A. She advised that it would occur just about every day. At first she stated, "How many days are in a year?" I advised 365 and she advised then that's how many.
And then she advised that he could not go for a whole week without having sex with her.
The above quotations from the record show that even assuming, without deciding, that failing to object to Detective Savitts' testimony was error, it was not prejudicial to defendant. The jury found defendant guilty of six charges of incest, six charges of statutory rape, and six charges of statutory sexual offense. The State attributed one count of incest, one count of statutory rape, and one count of statutory sexual offense to the month of June, and the other 15 counts were attributed to the month of July. Looking only at Sandra's testimony in its entirety, this time frame correlates with the abuse alleged by Sandra such that presentation of the charges to the jury was proper. The statements made by Detective Savitts offered nothing in addition to Sandra's testimony to provide definition to the time frame in issue — particularly given that the detective was merely recounting Sandra's own comments from an interview. Defendant further argues that his trial counsel was ineffective, because trial counsel failed to request a limiting instruction in the jury charge as to the alleged hearsay offered by Detective Savitts corroborating Sandra's time frame. Based on the foregoing analysis, we conclude that the lack of this instruction was not prejudicial, because Detective Savitts' testimony failed to add anything further to Sandra's in-court testimony.
Since defendant has failed to show that the absence of any supposed error would have created the "reasonable possibility" of a different outcome at trial, we find no prejudicial error in the jury's verdicts.
No prejudicial error.
Judges McGEE and GEER concur.
Report per Rule 30(e).