Opinion
No. COA09-821.
Filed February 16, 2010.
Davidson County Nos. 04CRS57564-66.
Appeal by defendant from judgments entered 23 January 2009 by Judge Richard L. Doughton in Davidson County Superior Court. Heard in the Court of Appeals 18 November 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sarah Y. Meacham, for the State.
Kevin P. Bradley, for defendant-appellant.
Michael Raymond Hawkins ("defendant") appeals his 22 January 2009 convictions for four counts of first-degree statutory sexual offense and two counts of first-degree statutory rape. For the reasons stated herein, we hold no error in part and remand in part.
In March 2004, L.K. was a fourteen-year-old girl who had been expelled from her middle school for putting whiteboard cleaner into her teacher's coffee. Her parents decided that she would stay with defendant and his family, who they hoped would be able to discipline L.K. effectively. Defendant was a Master Sergeant in the United States Air Force and lived with his wife and child.
L.K. lived with defendant and his family from Monday through Friday each week from March through early July 2004. According to L.K., after the first week of her living at defendant's house, defendant began to sexually assault her. The first instance of sexual assault occurred one day when L.K. came out of the bathroom upstairs, and defendant, standing in the doorway of his bedroom with a gun, requested that she enter his bedroom. She complied. Once in the bedroom, defendant pulled down L.K.'s pants and underwear. He forced his penis into her mouth and made her give him oral sex. Then defendant put his penis into L.K.'s vagina and began to rape her. According to L.K., these events lasted approximately thirty minutes.
L.K. testified that defendant assaulted her another time on the couch downstairs. Late one night after the family had gone to bed, defendant returned downstairs where L.K. was sitting on the couch and watching T.V. Defendant then pulled his penis out of his shorts, which L.K. understood to be a command for oral sex because "by this time this [had] happened multiple times." L.K. then performed oral sex on defendant. Afterwards, defendant pulled down L.K.'s pants and "stuck his fingers inside" her vagina. He "started moving [his fingers] around inside [L.K.]" for approximately three to four minutes. Defendant then stood with one leg on the floor and knelt on the couch with his other leg. He put his penis into L.K.'s vagina and had sex with her for approximately thirteen to fifteen minutes.
L.K. testified to another instance of sexual assault that occurred in the half-bathroom downstairs. Defendant met her as she was leaving the bathroom and "walked [her] backwards" back into the bathroom. He pulled his penis out of his shorts. L.K. recognized this "command" and testified that she was scared. She performed oral sex on defendant for approximately four to five minutes.
According to L.K., defendant also sexually assaulted her on the balcony of his house. He "bent [her] over the balcony" and had anal intercourse with her. L.K. could not recall how long the anal intercourse lasted.
On another night, defendant made L.K. lay on her back on the floor next to the balcony and pulled down her pants and underwear. Defendant then performed oral sex on L.K. for two to three minutes.
L.K. gave a written statement that she was a virgin before defendant raped her and that she had not had sex with anyone else during the applicable time period. On 21 July 2008, defendant was indicted on six counts of first-degree statutory sexual offense and two counts of first-degree statutory rape.
The jury trial lasted from 20 January through 22 January 2009. At trial, L.K. testified that all of these events occurred between March and June 2004. She recalled various details personal to defendant, including that he has several moles on his buttocks and that he keeps lubricant in the top drawer beside his bed. Defendant denied all of the allegations of sexual assault and offered alternative explanations for L.K.'s knowledge of those personal details — for example, that he had caught L.K. spying on him through the bathroom door once after he had exited the shower. He also noted that he has a prominent surgical scar that L.K. did not recall and that the abnormal curvature of his penis would have made certain sexual positions that L.K. described impossible.
The State presented evidence that on 14 July 2004, L.K.'s hymen was not intact, indicating that some sort of vaginal penetration had occurred prior to that date. Defendant attempted to introduce testimony from a witness ("the proposed witness") who claimed to have had sex with L.K. during the applicable time period. However, after an in camera review of the proposed testimony, the trial court ruled that it was inadmissible based upon the proposed witness's inability to remember exactly when he had had sex with L.K. The trial court also prevented defense counsel from cross-examining L.K. with the proposed witness's information. On 22 January 2009, the jury found defendant guilty of four counts of sexual offense and two counts of rape but not guilty on the other two counts of sexual offense. Defendant was sentenced to two consecutive terms of 240 to 297 months imprisonment. Defendant appeals.
Defendant first argues that his trial was not fair because defendant was prevented from cross-examining his accuser concerning her sexual activity and from confronting his accuser with testimony that would impeach her testimony. Defendant challenges both the trial court's evidentiary ruling that prevented cross-examination on this issue and trial counsel's failure to renew a motion to admit the testimony of a prospective defense witness. We disagree on both points and will address them separately.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2003). "Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court." State v. Cotton, 318 N.C. 663, 668, 351 S.E.2d 277, 280 (1987) (citing State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986)).
"While a defendant clearly is entitled to cross-examine an adverse witness, the scope of that cross-examination lies within the `sound discretion of the trial court, and its rulings thereon will not be disturbed absent a showing of abuse of discretion.'" State v. Dorton, 172 N.C. App. 759, 766, 617 S.E.2d 97, 102 (2005) (quoting State v. Herring, 322 N.C. 733, 743-44, 370 S.E.2d 363, 370 (1988)). "When cross-examination involves the sexual behavior of the complainant, our Rape Shield Statute further limits the scope of cross-examination by declaring such examination to be irrelevant to any issue in the prosecution except in four very narrow situations." Id. (internal citations and quotation marks omitted).
North Carolina Rules of Evidence, Rule 412(b) ("Rule 412") provides: Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
N.C. Gen. Stat. § 8C-1, Rule 412(b) (2003).
In the instant case, the trial court conducted an in camera hearing to determine whether the proposed testimony and line of questioning with respect to L.K.'s sexual activity were admissible pursuant to Rule 412. Defense counsel offered the evidence for purposes of impeaching L.K.'s testimony that she was a virgin prior to March 2004. However, during the hearing, the proposed witness was unable to state with confidence that he had engaged in sexual intercourse with L.K. before March of 2004. This lack of certainty diminished both the relevance and the probative value of the proposed witness's testimony and provided a reason for the trial court to exercise its discretion by excluding the offered evidence. Accordingly, the trial court did not abuse its discretion by excluding the proposed witness's uncertain testimony and by preventing cross-examination of L.K. using information from the proposed witness.
The second part of defendant's first argument is that defense counsel at the trial level rendered ineffective assistance by failing to renew a motion to admit the proposed testimony. We disagree.
"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, 80 L. Ed. 2d 674, 693 (1984)). Our Supreme Court has adopted from Strickland the two-part test for ineffective assistance of counsel:
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. (Emphasis added).
Id. at 562, 324 S.E.2d at 248 (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).
Here, defense counsel's decision not to renew the motion to admit testimony from the proposed witness was reasonable considering that the proposed witness was unable to remember exactly when he had engaged in sexual intercourse with L.K. Both the relevance and the probative value of the proposed testimony depend on the time period. Having heard during the in camera hearing that the proposed witness could not recall when the sexual encounter took place, defense counsel acted reasonably — and not deficiently — by deciding not to renew the motion. Because counsel acted reasonably, we do not address the second prong of the Strickland test. We hold that trial counsel's performance did not constitute ineffective assistance.
Defendant's second argument is that the judgments incorrectly state which statutes defendant was found to have violated. The State agrees with this contention, as do we.
North Carolina General Statutes, section 14-27.4(A) addresses first-degree sexual offense with a child under the age of thirteen. See N.C. Gen. Stat. § 14-27.4(A) (2003). North Carolina General Statutes, section 14-27.2(A) deals with first-degree rape of a child under the age of thirteen. See N.C. Gen. Stat. § 14-27.2(A) (2003). North Carolina General Statutes, section 14-177 is the crime against nature statute. See N.C. Gen. Stat. § 14-177 (2003). In contrast, North Carolina General Statutes, section 14-27.7A(a) addresses rape or sexual offense when the victim is thirteen, fourteen, or fifteen years old. See N.C. Gen. Stat. § 14-27.7A(a) (2003).
Here, L.K. was fourteen years old at the time of the offenses. The superseding indictments charge defendant with violating North Carolina General Statutes, section 14-27.7A(a), the applicable statute. However, the 23 January 2009 judgments cite North Carolina General Statutes, sections 14-27.4(A) and 14-27.2(A) — statutes that define the same crimes but with younger victims — and section 14-177, which addresses crime against nature. The judgments should have referred to North Carolina General Statutes, section 14-27.7A(a). Accordingly, we remand for correction of these clerical errors.
For these reasons, we hold that the trial court did not abuse its discretion by excluding testimony, as well as cross-examination based on that testimony, from evidence. We also hold that trial counsel did not render ineffective assistance by failing to renew a motion to admit such testimony. Finally, we remand to the trial court for correction of the statutory references included in the judgments.
No error in part; Remanded in part.
Judges HUNTER, Robert C. and BRYANT concur.
Report per Rule 30(e).