Opinion
No. COA04-660
Filed 5 April 2005 This case not for publication
Appeal by the State from order entered 5 January 2004 by Judge J. Richard Parker in Dare County Superior Court. Heard in the Court of Appeals 12 January 2005.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Cheshire, Parker, Schneider, Bryan, Vitale, by Joseph B. Cheshire, V, and John Keating Wiles, for defendant appellee.
Dare County Nos. 99 CRS 3274-75.
The State of North Carolina appeals from the trial court's order which vacated the judgments against defendant and granted him a new trial. This is the second time this case is before us. A detailed summary of the facts giving rise to this appeal is set forth in our first opinion, State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289, appeal dismissed, disc. review denied, 356 N.C. 623, 575 S.E.2d 757 (2002) ( Smith I). To understand the issues that are before us, we provide the following procedural history.
On 16 March 2001, the jury found defendant guilty of two counts of taking indecent liberties with a child and one count of first-degree sex offense with a child under the age of thirteen. Defendant appealed to this Court which found no prejudicial error, and the North Carolina Supreme Court dismissed defendant's appeal and denied discretionary review of the case. Id.
On or about 15 July 2003, defendant filed a motion for appropriate relief alleging that he was entitled to a new trial on grounds of newly discovered evidence and ineffective assistance of counsel. After conducting an evidentiary hearing, the trial court vacated the judgments against defendant and granted him a new trial. The State appeals.
On appeal, the State argues that the trial court erred by granting defendant's motion for appropriate relief and ordering a new trial in this case. We agree and reverse the order of the trial court.
At the outset, we note that the State has the right to immediately appeal a superior court order granting a criminal defendant a new trial on the ground of newly discovered evidence. State v. Monroe, 330 N.C. 433, 434, 410 S.E.2d 913, 914 (1991). Accordingly, this appeal is properly before us.
It is also well established that
[i]n order for a new trial to be granted on the ground of newly discovered evidence, it must appear by affidavit that (1) the witness or witnesses will give newly discovered evidence; (2) the newly discovered evidence is probably true; (3) the evidence is material, competent and relevant; (4) due diligence was used and proper means were employed to procure the testimony at trial; (5) the newly discovered evidence is not merely cumulative or corroborative; (6) the new evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness; and (7) the evidence is of such a nature that a different result will probably be reached at a new trial.
State v. Beaver, 291 N.C. 137, 143, 229 S.E.2d 179, 183 (1976). The trial judge's ruling on a motion for a new trial on the ground of newly discovered evidence will not be reversed unless there is an abuse of discretion. State v. Sprinkle, 46 N.C. App. 802, 805, 266 S.E.2d 375, 377, disc. review denied, 300 N.C. 561, 270 S.E.2d 115 (1980). However, to obtain a new trial, defendant must establish all seven elements. Id.
In his motion for appropriate relief, defendant alleged that he was entitled to a new trial because of newly discovered evidence and ineffective assistance of counsel. However, in granting defendant a new trial, the trial judge did not make detailed findings of fact and conclusions of law. Additionally, the trial judge did not explain whether his decision was based on newly discovered evidence or ineffective assistance of counsel. Instead, the trial judge simply stated:
Upon consideration of the Defendant's motion, evidence presented by the Defendant and the State at the hearing, and the authorities and arguments submitted by counsel for the Defendant and the State, the Court finds that the Defendant has shown, by a preponderance of the evidence, facts necessary to support the motion and concludes that ground for relief exists.
Defendant claims that one of the State's witnesses, Jennifer Marquis, was sixteen years old, not fifteen, when defendant engaged in sexual activity with her. Defendant further suggests that this is newly discovered evidence that entitles him to a new trial. We disagree.
First, defendant has not established elements one and five. At trial, defendant stated that he believed Marquis was sixteen years old when the two had sexual intercourse. Subsequently, when the trial court heard defendant's motion for appropriate relief, defendant presented additional evidence tending to show that Marquis was sixteen when she had sex with defendant. This cannot be classified as newly discovered evidence because it simply corroborated defendant's earlier testimony.
Defendant has also failed to prove element six. At trial, Jennifer Marquis' recollection was that she was fifteen years old at the time of the encounter with defendant. To the extent that defendant has now presented other evidence showing that defendant was sixteen, this evidence does little more than impeach the testimony of a former witness.
Finally, defendant has not shown that "the evidence is of such a nature that a different result will probably be reached at a new trial." Beaver, 291 N.C. at 143, 229 S.E.2d at 183. Before explaining why that is the case, it is important to understand Rule 404(b). Pursuant to that rule,
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003).
In this case, defendant suggests that evidence showing that Marquis was fifteen instead of sixteen affected the trial judge's decision about whether to exclude Marquis' testimony. The implication is that the trial judge would have excluded the evidence if he had known that Marquis was sixteen instead of fifteen. This argument is unpersuasive because the trial judge did not base his decision upon whether the sexual activity between defendant and Marquis was a crime. Instead, the trial judge admitted the evidence
for the purpose of showing an absence of mistake on the part of defendant, defendant's unnatural attraction to young girls, and a common plan or scheme to take advantage of young girls in situations where he had parental or adult responsibility over them.
Smith I, 152 N.C. App. at 519, 568 S.E.2d at 292. Therefore, whether Marquis was fifteen or sixteen is inconsequential because the trial court admitted Marquis' testimony to show defendant's common scheme or plan of taking advantage of young girls when he had parental or adult responsibility over them. Just as he did with his stepdaughter, A.R., defendant abused Marquis, another young female, while acting in loco parentis. Defendant has not shown that there would have been a different outcome regarding the admissibility of the evidence.
More importantly, defendant has not shown that this allegedly "newly discovered" evidence would lead to a different result at another trial. The State presented overwhelming evidence of defendant's guilt. The victim testified about two incidents that occurred in February and April of 1999. Id. at 523, 568 S.E.2d at 295. Two witnesses, the victim's mother and a psychiatrist, testified that the victim's testimony was consistent with what she maintained all along. Id. at 523-24, 568 S.E.2d at 295. The psychiatrist also testified that the victim suffered from post-traumatic stress syndrome, a disorder which can be caused by a sexual assault. Id. at 524, 568 S.E.2d at 295. Finally, the State presented evidence tending to show that defendant made sexually graphic comments about the victim to his coworkers. Id. Defendant mentioned the victim's breasts, stated "how well she looked for her age," and indicated that he had been aroused after seeing the T-shirt and underwear the victim wore around the house. Id. at 517, 568 S.E.2d at 291-92. Finally, defendant boasted that since he and the victim were not blood relatives, "it could lead to something." Id. at 517, 568 S.E.2d at 292. Because of this overwhelming evidence, defendant has not shown that a different result would be reached in a new trial.
Based on the facts and circumstances of this case, we hold that the trial judge erred in granting defendant a new trial on the basis of newly discovered evidence. As we have indicated, the trial judge did not give a detailed explanation as to why he granted defendant a new trial. To the extent that the trial court may have relied on ineffective assistance of counsel as a basis for that decision, such reliance is also erroneous. "A defendant's right to counsel includes the right to the effective assistance of counsel." State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). "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." Id. at 561-62, 324 S.E.2d at 248. To meet this burden, defendant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced defendant. Id. at 562, 324 S.E.2d at 248. A reversal for ineffective assistance of counsel is not warranted "unless 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.
Defendant first claims that his trial counsel was ineffective because the attorney failed to do adequate research regarding the age of Jennifer Marquis. Defendant reasons that this made a difference in the trial court's decision to admit Marquis' testimony. We disagree with this assertion. As we have noted, the trial court admitted Marquis' testimony to show defendant's common plan or scheme to take advantage of young girls in situations where he had parental or adult responsibility over them. Since the evidence would have been admitted regardless of whether Marquis was fifteen or sixteen, defendant cannot show a reasonable probability that absent the error, there would have been a different result.
Defendant next contends that his trial counsel should have presented authority showing that the pornography testimony was inadmissible. However, this Court has already determined that the trial court's admission of evidence of defendant's possession of pornographic material was not prejudicial error. Smith I, 152 N.C. App. at 523-24, 568 S.E.2d at 295. Since this error was not prejudicial, defendant cannot meet the burden of establishing ineffective assistance of counsel.
Finally, we are aware that
[t]he Courts rarely grant relief on the grounds here asserted [ineffective assistance of counsel], and have consistently required a stringent standard of proof on the question of whether an accused has been denied Constitutionally effective representation. We think such a standard is necessary, since every practicing attorney knows that a "hindsight" combing of a criminal record will in nearly every case reveal some possible error in judgment or disclose at least one trial tactic more attractive than those employed at trial. To impose a less stringent rule would be to encourage convicted defendants to assert frivolous claims which could result in unwarranted trial of their counsels.
State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871-72 (1974).
After careful consideration, we conclude that the trial court erred in granting defendant's motion for appropriate relief and ordering a new trial. Defendant has not shown that he is entitled to relief based upon newly discovered evidence or ineffective assistance of counsel. Therefore, the order of the trial court is
Reversed.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).