Opinion
No. COA11–1587.
2012-08-7
STATE of North Carolina v. Timothy Marshall VESTER.
Attorney General Roy A. Cooper, by Special Deputy Attorney General Scott T. Slusser, for the State. Kevin P. Bradley for defendant-appellant.
Appeal by defendant from judgment entered 1 June 2011 by Judge Henry W. Hight Jr. in Franklin County Superior Court. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, by Special Deputy Attorney General Scott T. Slusser, for the State. Kevin P. Bradley for defendant-appellant.
BRYANT, Judge.
Where defendant fails to show how counsel's assistance was prejudicial, we overrule his ineffective assistance claim, and where there was sufficient evidence to support the crime of assault on a female, the trial court did not err in denying defendant's motion to dismiss.
Facts and Procedural History
Defendant Timothy Marshall Vester was indicted on the following charges for conduct that occurred on 12 May 2010: assault on a female; misdemeanor larceny; assault by strangulation; assault with a deadly weapon with intent to kill; and attaining habitual felon status.
At trial, Sheila Mullen (Mullen) testified that on 12 May 2010, she and defendant had been dating “[p]robably nine to ten months; a year or so.” Mullen was at defendant's residence when he took her prescription medicine and a fight ensued. Mullen testified that:
[Defendant] picked me up by my neck, til my feet come off the ground til I couldn't breathe, gagging, as he always did. He kept throwing me around, again.
...
I took his scooter keys. I said, “I'll take your keys until you give me ... my medication back.” He said, “If you don't give me my keys back, I'll take you out there, and I'll burn you and I'll kill you.”
Defendant then “jerked the shirt off” Mullen, took her outside, and poured lighter fluid on her. Defendant struck a match, but the match went out. Mullen further testified that defendant went inside the house and came back out with a “napkin or a piece of paper; something was flaming.” Although defendant attempted to drop it on Mullen, the paper never hit her. Defendant then jumped on his scooter and drove away with Mullen's prescription medicine. Defendant was thereafter arrested.
Defendant was convicted by a jury of assault with a deadly weapon with intent to kill, assault on a female, and larceny. Defendant was acquitted of assault by strangulation. Defendant admitted to having attained the status of habitual felon.
Defendant was sentenced to consecutive terms of 80 to 105 months for assault with a deadly weapon with intent to kill as a habitual felon, 150 days imprisonment for assault on a female, and 120 days imprisonment for misdemeanor larceny. From this judgment, defendant appeals.
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Defendant presents the following issues on appeal: (I) whether his counsel rendered ineffective assistance of counsel; and (II) whether the trial court erred by denying his motion to dismiss where there was insufficient evidence to establish the crime of assault on a female.
I
Defendant argues that his counsel rendered ineffective assistance of counsel, violating the Sixth Amendment of the United States Constitution and Article I, Section 23 of the North Carolina Constitution.
To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.... Generally, to establish 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.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citations and quotations omitted).
However, “if we can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” State v. Rogers, 355 N.C. 420, 450, 562 S.E.2d 859, 878 (2002) (citation and quotations omitted).
First, defendant argues that a portion of testimony offered by Ruby Savage, a detective with the Franklin County Sheriff's Department, was inadmissible, and that defendant's counsel was ineffective by failing to object to her testimony. Defendant contends that his counsel's deficient performance was prejudicial because it allowed Detective Savage to express her opinion on Mullen's credibility. In pertinent part, Detective Savage's testimony was as follows:
[The State]: Has [Mullen's] statements to you during the course of the investigation been consistent at all times?
[Detective Savage]: Yes, very consistent.
“Our case law has long held that a witness may not vouch for the credibility of a victim.” State v. Giddens, 199 N.C.App. 115, 121, 681 S.E.2d 504, 508 (2009) (citation omitted). “[S]uch testimony is an opinion which is not helpful to the jury's determination of a fact in issue and is therefore excluded by [N.C. Gen.Stat. § 8C–1, N.C. R. Evid. 701.]” State v. Gobal, 186 N.C.App. 308, 318, 651 S.E.2d 279, 286 (2007) (citations omitted). North Carolina General Statutes, section 8C–1, Rule 701 states that
[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen.Stat. § 8C–1, Rule 701 (2011).
Assuming arguendo, that defense counsel's representation was deficient because he failed to object to Detective Savage's testimony, we are unable to say that the testimony was prejudicial. Here, the record reflects that the jury had the opportunity to make an independent determination of Mullen's credibility based on hearing her direct testimony and defense counsel's cross-examination of Mullen. The jury also heard the testimony of several other witnesses each of whom attested to their personal interactions with Mullen on the day of the offense, 12 May 2010. Melissa Ray Boney, a friend of Mullen, testified that Mullen called and asked to be picked up because she was in danger. Boney observed that Mullen was in a state of shock, that she was bleeding, and that she smelled strongly of lighter fluid. Boney took Mullen to the Sheriff's Department and to the hospital for treatment, and stayed with her for a while upon her return home. Tanya Cash, an employee at the Franklin County Sheriff's Department, testified regarding Mullen's arrival at the Sheriff's Department, stating that when “[Mullen] came in the door, she was very upset. She had some scratches down her neck, and she had a smell of some type of accelerant about her” and “she was complaining of her private areas burning[.]” Sarah Hardy, a nurse in the Emergency Department at Franklin Regional Medical Center, and Ronald Bremmer, a physician's assistant at Franklin Regional Medical Center, each testified to attending to Mullen's injuries during her hospital visit. Hardy documented multiple abrasions on Mullen's body, as well as Mullen's statement that “she had lighter fluid poured over her genitalia.” Hardy also noted that “there was hysteria, a high level of anxiety, tearfulness, that [Mullen] was restless and moving continuously, and then. [complained of pain on a scale of] 10 out [of] 10 ... in her lower back.” Bremmer testified that Mullen “appeared very anxious, said she was assaulted by her boyfriend, had, had [SIC] kerosene poured on her, and was dragged down six wooden steps [.]” Mullen had “vaginal burning and some pain to her back and various scratches.” Gregory Strickland, Captain of the Franklin County Sheriff's Department, Investigation Division, testified regarding his discussion with Mullen at the Sheriff's Department, stating that Mullen appeared “distraught, nervous acting, and she had some scratches on her face.” Mullen told Strickland that her boyfriend hit her, sprayed her with lighter fluid, and tried to ignite her. Strickland observed scratches on Mullen's neck and “other marks under her clothes.”
On this record, where defendant has failed to demonstrate how the result of this proceeding would have been any different absent defense counsel's alleged deficient performance, we must “indulge [in the] strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.” State v. Taylor, 141 N.C.App. 321, 325, 541 S.E.2d 199, 202 (2000) (citation omitted). This portion of defendant's argument is overruled.
Next, defendant argues that his defense counsel admitted to defendant's guilt during his opening statement and closing argument without his consent, constituting per se ineffective assistance of counsel. Defendant contends that his counsel denied that defendant committed assault by strangulation and denied that defendant attempted to set Mullen on fire, while conceding defendant's guilt as to the other charges.
“Generally, this Court indulges the presumption that trial counsel's representation is within the boundaries of acceptable professional conduct, giving counsel wide latitude in matters of strategy.” State v. Goss, 361 N.C. 610, 623, 651 S.E.2d 867, 875 (2007) (citation and quotations omitted). However, “[w]hen counsel admits his client's guilt without first obtaining the client's consent, the client's rights to a fair trial and to put the State to the burden of proof are completely swept away.” State v.. Mason, 159 N.C.App. 691, 693, 583 S.E.2d 410, 412 (2003) (citation omitted). This error “amounts to a per se violation of a defendant's right to the effective assistance of counsel.” Goss, 361 N.C. at 623, 651 S.E.2d at 875 (citation omitted).
Defendant bases his argument on a portion of the opening statement where his defense counsel stated the following:
Ladies and gentlemen, we contend to you, [defendant] didn't try to set her on fire. [Defendant] never tried to choke [Mullen].
Defendant also directs us to the following portions of defense counsel's closing argument:
Now, [Mullen] came in and she testified and she cried a little bit and I'm sorry. This was a traumatic experience for her.
...
Now, has she gone through something, yes.
Defendant's argument rests on the idea that because his counsel specifically stated that defendant did not try to set Mullen on fire and that defendant did not try to strangle Mullen, defense counsel is implicitly conceding to the remaining charges of assault on a female and misdemeanor larceny. We disagree.
In State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), the North Carolina Supreme Court held that the defendant's counsel rendered ineffective assistance of counsel by admitting to defendant's guilt, without his consent, during counsel's closing argument to the jury. In Harbison, the defendant maintained throughout the whole trial that he had acted in self-defense. Id. at 177, 337 S.E.2d at 506. The defense counsel, during closing argument, stated to the jury that they “should find [defendant] guilty of manslaughter and not first degree [murder;]” however, counsel had not received the defendant's consent to concede his guilt to the crime of manslaughter. Id. at 178, 337 S.E.2d at 506.
Harbison is clearly distinguishable from the case before us. A review of the whole record reveals that defense counsel's statements do not amount to an admission of guilt. Here, defense counsel did not admit guilt to any of the crimes with which defendant was charged. Instead, defense counsel maintained throughout the trial that they should find defendant not guilty of any of the charges. Defense counsel stated the following during his opening statement:
[W]e contend to you [defendant] didn't do this. He's not guilty of what he's been charged with, and when this case is over, we're gonna ask you to come back and find him not guilty.
During closing, defense counsel also stated the following to the jury:
Ladies and gentlemen, there is reasonable doubt in this case.... We're going to ask that you ... come back and you find [defendant] not guilty, because he's not guilty.
On this record, defendant cannot sustain a Harbison claim. Therefore, because defendant has failed to show that his defense counsel rendered ineffective assistance of counsel, defendant's arguments are overruled.
II
Next, defendant argues the trial court erred by denying his motion to dismiss the charge of assault on a female where the State's evidence failed to prove an essential element of the crime—namely, his age.
“[I]n ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of that crime.” State v. Banks, –––N.C.App. ––––, ––––, 706 S.E .2d 807, 812 (2011) (citation omitted). “In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citations omitted).
Pursuant to section 14–33(c)(2) of the North Carolina General Statutes, “any person who commits any assault ... is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she: (2) Assaults a female, he being a male person at least 18 years of age[.]” N.C. Gen.Stat. § 14–33(c)(2) (2011).
Defendant relies on State v. Ackerman, 144 N.C.App. 452, 551 S.E.2d 139 (2001), in support of his argument that there was insufficient evidence of defendant's age. In Ackerman, the State failed to present evidence that the defendant was over the age of eighteen years to prove the offense of assault on a female. However, the Ackerman court determined that it was not error for the trial court to deny the defendant's motion to dismiss because the “jury was presented with circumstantial evidence from which, in addition to observing defendant, they could conclude that defendant was over 18 years of age.” Id. at 462, 551 S.E.2d at 146. The Ackerman jury, in addition to having ample opportunity to observe the defendant in the courtroom throughout the duration of the trial, was presented with circumstantial evidence from which they could conclude that the defendant was over eighteen years of age: for example, the defendant had been involved in a romantic relationship with a forty-three year old woman; the defendant was a regular customer at a particular bar; that the defendant purchased and drank alcoholic beverages at the bar on the evening in question; and, that a person must be twenty-one years old to purchase or consume alcohol in North Carolina. Id. at 462, 551 S.E.2d at 145–46.
Defendant argues that in the instant case, although defendant's birth date is 7 September 1958, which made him fifty-one (51) years old at the time of the offense, the State failed to offer either direct or circumstantial evidence of his age. We disagree.
Here, as in Ackerman, the jury had ample opportunity to view defendant during his trial in order to estimate his age. In addition, the State presented the following circumstantial evidence from which the jury could conclude that defendant was over the age of eighteen (18) years: Mullen testified that as of 12 May 2010, she and defendant had been dating “[p]robably nine to ten months; a year or so[;]” Defendant had a home which presumably he owned ; Defendant took Mullen's prescription medication (Xanax), which she had been taking for twenty years; Mullen went to drug treatment “[b]ack in the 90's.”
Mullen was at defendant's home when the events leading to his arrest occurred.
This Court has previously noted that “a jury may base its determination of a defendant's age on its own observation of him even when the defendant does not testify.” State v. Bynum, 111 N.C.App. 845, 850, 433 S.E.2d 778, 781 (1993) (citation omitted). Viewing the evidence in the light most favorable to the State, there was sufficient evidence from which a jury, in addition to observing defendant during trial, could conclude defendant was over eighteen years old. Because the State established the essential elements of assault on a female, the trial court did not err in denying defendant's motion to dismiss. Defendant's argument is overruled.
No error. Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per rule 30(e).