Opinion
No. COA10-825
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgment entered 26 February 2010 by Judge Calvin E. Murphy in Macon County Superior Court. Heard in the Court of Appeals 27 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State. Mark Montgomery for defendant-appellant.
Macon County Nos. 08 CRS 50409, 09 CRS 1286.
Defendant Nicolas Edward Tuccicasselli appeals from his convictions of first degree rape of a child under the age of 13 and of indecent liberties with a child. Defendant's contention on appeal that the trial court committed plain error by referring to the complainant as "the victim" during the jury charge was rejected by the Supreme Court in State v. McCarroll, 336 N.C. 559, 565-66, 445 S.E.2d 18, 22 (1994). As for his second argument — that the trial court should have instructed on attempted first degree rape — we hold that even assuming, without deciding, that the evidence was sufficient to support an instruction on that offense, defendant has failed to demonstrate, given the evidence presented at trial, that the jury would probably have reached a different verdict had the instruction been included. We, therefore, conclude that defendant received a trial free of prejudicial error.
Facts
The State's evidence tended to show the following facts. On the morning of 6 March 2008, five-year-old "Brandy" was dropped off at the home of her adult sister, Jenny, so that Jenny could babysit Brandy. Jenny and defendant were in a long-term relationship and were the parents of two children about the same age as Brandy. Brandy referred to defendant as "Uncle Nick."
The pseudonym "Brandy" is used throughout this opinion to protect the minor's privacy and for ease of reading.
At lunchtime, Jenny left for about half an hour to pick up fast food. While Jenny was gone, defendant carried Brandy into his bedroom. He laid her on the bed, took off her pants and his shorts, and pulled her legs apart. While standing in front of the bed, he, in Brandy's words, "stuck his private into [her] private." He also took photographs with a gray camera. When he was done, Brandy put her pants back on, and defendant put his shorts back on. The other children were in another room at the time this occurred. After Jenny returned, Brandy did not tell her what had happened because she was "scared."
Brandy's mother picked up Brandy at about 1:30 p.m. and took her home. When they were home, Brandy went into the bathroom and started crying. She told her mother that "it burned when she peed." Brandy's mother at first thought that Brandy might have "left soap there" and suggested a bath, but Brandy said, "`It won't help.'" When her mother asked why, Brandy answered, "`Because Uncle Nick messed with me, my pee. . . . He put his weaner [sic] in my private.'" Brandy's mother immediately called Brandy's father and, after that, called Jenny because she was concerned for Jenny's daughter.
Brandy's mother then took her to see Dr. Patti Wheeler, the family physician. Brandy told Dr. Wheeler that "her bottom was stinging" because defendant had "touched her down there on her privates." Dr. Wheeler called the Department of Social Services ("DSS") to report the incident and referred Brandy and her mother to Kid's Place, an "organization that talks with children who have been sexually abused and that's the place that they can feel comfortable talking to DSS, talking to detectives and have a physical exam that's appropriate for court situations, and they offer therapy."
Later that afternoon, when Brandy's mother was driving Brandy to Kid's Place, Jenny and defendant drove up behind her. Brandy's mother pulled over, told Brandy to stay in the car, and got out of the car to talk to them. Defendant told her that he was being accused of rape and could be sent to prison for 40 years. Brandy's mother told him she was getting Brandy checked and said, "`If you have done nothing wrong, then you have nothing to worry about[.]'" Defendant responded, "`Well fine, you do that, and we'll go to Florida and you will never see your grandchildren again.'"
When Brandy and her mother arrived at Kid's Place, they met Kristin Houser Wood, a DSS social worker. Ms. Wood introduced herself to Brandy and asked her if she knew why she was at Kid's Place. Brandy responded, "`Uncle Nick hurt my pee pee.'" Ms. Wood did not ask Brandy for more details at that point because, she explained, children in Brandy's situation can sometimes get "flustered and upset" if they have to answer the same questions over and over again.
Brandy then met with Dr. Sondra Wolf, a physician at Kid's Place. During that interview, Brandy told Dr. Wolf, "`[Defendant] was mean to me. He took me into the bedroom. He pulled down his pants and he put his weaner [sic] into my pee pee.'" Brandy also told Dr. Wolf that it had happened once before when defendant was babysitting her while Jenny was out to lunch with friends. When Dr. Wolf gave Brandy anatomically correct dolls and asked her to demonstrate what had happened, Brandy indicated with the dolls that defendant had picked her up and put her on the bed. Dr. Wolf explained at trial:
[Brandy] stated, "He put my legs up like this, but I wasn't wearing a dress." The little girl doll had had a dress on, and she wanted to make that clear, but she put the little girl doll's legs up in the air, and she then put the [defendant] doll's penis up against the girl doll's underpants repeatedly and made little thrusting motions back and forth with the girl doll's legs up in the air. She stated, "It hurt and I cried, but he didn't stop." . . .
I had tried to get her to clarify if the little girl doll was wearing underpants during this, because in the little demonstration the penis was hitting the little girl doll's underpants in the genital area, and she said, "No," the little girl doll — I was not wearing underpants, but she wouldn't take the doll's underpants off, she didn't want to do that.
She also added at that point, "And he took a picture of my pee pee."
After the interview, Dr. Wolf performed a physical exam. Dr. Wolf testified that everything except for the genital exam was completely normal. During the genital exam, Dr. Wolf observed that on Brandy's "bottom area on the vaginal opening and on the hymen, there was just a little bit of redness and irritation. The hymenal edge just looked a little bit irregular and bumpy. There were no clear signs of bleeding or there was no clear tearing, but it was just a little red, irritated and bumpy looking under magnification." Dr. Wolf explained that these findings were not unusual given the history obtained from Brandy because "even in sexual abuse cases when there is penetration, that hymenal tissue is made to stretch, and it is not uncommon for it not to rip. It is very common for it just to be red, and the problem with that is that a lot of things will make the hymen red." Dr. Wolf characterized Brandy's examination findings as falling into the nonspecific category.
At some time later, Jenny found defendant in their basement or garage area burning a couple of compact discs with a torch. When she asked him what he was doing, he said "something to the fact of I'm not supposed to have these."
On 7 March 2008, the day after Brandy reported being abused, police executed a search warrant at defendant's home and found an opened package of condoms, from which two were missing. Jenny told the police that she and defendant did not use condoms.
The police also found a computer that defendant had built and used frequently, but the hard drive was missing. Before his arrest, defendant had given a computer hard drive and other items in trash bags to his friend Matthew Johnson and asked him to "destroy it and get rid of it." Mr. Johnson smashed the hard drive with a hammer and threw it in a lake. Later, Mr. Johnson gave police directions to find the hard drive. It was recovered from the lake but was too damaged to be read.
Ronald Swofford, who was in jail with defendant prior to defendant's trial, testified that defendant had told him that the hard drive recovered from the lake was not "the right one," but rather was "a decoy." Mr. Swofford also knew Mr. Johnson and remembered that once, while he was staying at Mr. Johnson's residence, he had found a hard drive while he was cleaning. Mr. Swofford gave this information to his probation officer, and police obtained the hard drive at Mr. Johnson's house. This second hard drive was found to have been "wiped," meaning that a hardware or software tool had been used to digitally erase all the data on the hard drive.
Subsequently, on 17 March 2008, Detective Judie Lau, a juvenile investigator with the Macon County Sheriff's Department, spoke with Brandy at her home. Brandy told Detective Lau that "Uncle Nick put his pee pee in [her] pee pee" and that "Uncle Nick took pictures of her pee pee all the time."
Defendant was indicted for two counts of first degree rape of a child under the age of 13 and one count of indecent liberties with a child. The trial court ultimately dismissed one of the first degree rape counts. The jury found defendant guilty of the remaining first degree rape count and of taking indecent liberties with a child. The trial court sentenced defendant to a presumptive-range term of 300 to 369 months imprisonment. Defendant timely appealed to this Court.
I
On appeal, defendant first argues that the trial court erred in referring to Brandy as "the victim" during the jury charge:
Now, the defendant has also been charged with first degree rape. Now, for you to find him guilty of this offense, the State must prove three things beyond a reasonable doubt.
First, that the defendant engaged in vaginal intercourse with the victim [Brandy]. . . .
Second, at the time of these acts the victim was a child under the age of 13 years.
And third, that at the time of the alleged acts the defendant was at least 12 years old and was at least four years older than the victim.
So if you find from the evidence and beyond a reasonable doubt that on or about the alleged date the defendant engaged in vaginal intercourse with the victim [Brandy], and at that time [Brandy] was a child under the age of 13 years, and the defendant was at least 12 years old and was at least four years older than the victim, it would be your duty to return a verdict of guilty.
Defendant asserts that the repeated reference to Brandy as "the victim" violated N.C. Gen. Stat. § 15A-1222 (2009), which provides that a trial judge "may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury."
Defendant did not object to this jury instruction at trial. Although defendant argues that this issue, as a violation of a statutory mandate, was preserved without objection, our Supreme Court has previously held, when addressing the precise issue raised by defendant, that plain error review applied in the absence of a contemporaneous objection at trial. See McCarroll, 336 N.C. at 565-66, 445 S.E.2d at 22 (applying plain error review when defendant argued trial court erred in referring to prosecuting witness as "the `victim'" throughout jury charge). See also State v. Richardson, 112 N.C. App. 58, 66, 434 S.E.2d 657, 663 (1993) (applying plain error review when defendant contended trial court erred in referring to prosecuting witnesses as "victims" in jury charge), disc. review denied, 335 N.C. 563, 441 S.E.2d 132 (1994).
The plain error rule "is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)).
With respect to the merits of defendant's argument, the Supreme Court, in McCarroll, 336 N.C. at 565-66, 445 S.E.2d at 22, expressly rejected the contention that a trial court's reference to a prosecuting witness as the "victim" in a jury charge, without more, constitutes an improper expression of opinion. The Court observed: "There is no intimation that the court expressed an opinion on the evidence other than as argued in this assignment of error. The judge properly placed the burden of proof on the State. We cannot hold that the reference to the prosecuting witness as the victim was an error so basic and lacking in its elements that justice could not have been done." Id. at 566, 445 S.E.2d at 22.
Here, as in McCarroll, defendant has made no other argument that the trial court expressed any opinion on the evidence, and the trial court properly placed the burden of proof on the State. Furthermore, the trial court specifically instructed the jury: "You should not infer from any statement I have made that any of the evidence is to be believed or disbelieved, that a fact has been proved or what your findings ought to be. It is your duty to find the facts and render a verdict reflecting the truth." Accordingly, consistent with McCarroll, "[w]e cannot hold that the reference to the prosecuting witness as the victim was an error so basic and lacking in its elements that justice could not have been done." Id.
Because we have determined that the trial court did not commit plain error, we also conclude that defendant has failed to demonstrate that he was denied effective assistance of counsel when his trial counsel failed to object to the trial court's reference to Brandy as "the victim" during the jury charge. See, e.g., State v. Pratt, 161 N.C. App. 161, 165, 587 S.E.2d 437, 440 (2003) ("A successful ineffective assistance of counsel claim based on a failure to request a jury instruction requires the defendant to prove that without the requested jury instruction there was plain error in the charge."); State v. Seagroves, 78 N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985) ("Defendant also asserts that he was denied effective assistance of counsel in that his attorney failed to request certain jury instructions. . . . There being no `plain error' in the jury instructions, defendant's assertion of ineffective assistance of counsel with respect thereto must also fail."), disc. review denied, 316 N.C. 384, 342 S.E.2d 905 (1986).
II
Next, defendant contends that the trial court erred in failing to instruct the jury on attempted first degree rape. Acknowledging that his trial counsel failed to request such an instruction, defendant requests that the Court review for plain error.
As a general matter, "[a] trial court must submit a lesser included offense instruction if the evidence would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater." State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986), superseded by statute on other grounds as stated in State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 130 L. Ed. 2d 174, 115 S. Ct. 253 (1994). An instruction on attempted first degree rape as a lesser included offense of first degree rape is "warranted when the evidence pertaining to the crucial element of penetration conflicts or when, from the evidence presented, the jury may draw conflicting inferences." Id.
In Johnson, 317 N.C. at 436, 347 S.E.2d at 18, our Supreme Court addressed the question whether there was a conflict in the evidence of penetration in spite of the victim's direct testimony that the defendant "put his penis into her vagina." The Court found that because there was additional evidence that the victim had previously given two statements in which she explained that the defendant only attempted but was unable to accomplish penetration, there was a conflict in the evidence of whether penetration occurred. Id. The trial court had, therefore, erred in failing to instruct on attempted first degree rape. Id.
In arguing that there was evidence from which the jury could have found that defendant attempted, but failed, to penetrate Brandy, defendant points to the evidence that Jenny was gone only a short time; that everything seemed fine when she returned; that, on one occasion, Brandy told Dr. Wheeler that defendant "touched her down there on her privates" (emphasis added); that Brandy testified that she and the prosecutor had practiced her testimony about whether defendant's penis was "in" or "on" her; that Brandy used dolls to demonstrate that defendant put his penis between her legs, but that Brandy did not insert the penis into the female doll; and that Dr. Wolf, who examined Brandy a few hours after the incident, testified only that she saw "a little bit of redness" at the vaginal opening.
Assuming without deciding that the trial court erred in failing to instruct on attempted first degree rape, we have concluded, based on our review of the record, that defendant has failed to demonstrate that any error was "so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him." State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). The record contains only one instance in which Brandy said defendant touched her "on" her privates.
The State presented witnesses who indicated that Brandy had — immediately after the incident — stated over and over that defendant put his "private into [her] private," that defendant put his "`weaner [sic] in [her] private,'" or that defendant put his "`weaner [sic] into [her] pee pee.'" (Emphasis added.) In fact, immediately upon returning home the day of the incident, Brandy complained of burning when she peed and said that a bath would not help because "`Uncle Nick messed with me, my pee. . . . He put his weaner [sic] in my private.'" Dr. Wolf explained in her testimony that "[b]oth the urethra and the openings for the vagina are inside the labia right adjacent." (Emphasis added.) This testimony regarding Brandy's initial disclosure strongly suggests penetration and not attempted rape. See State v. Fletcher, 322 N.C. 415, 424, 368 S.E.2d 633, 638 (1988) (holding that for penetration sufficient for rape to occur, "`[i]t is not necessary that the vagina be entered or that the hymen be ruptured'"; rather "`[t]he entering of the vulva or labia is sufficient'").
While defendant asserts, in support of his argument regarding attempted rape, that Dr. Wolf only saw redness "at the vaginal opening," Dr. Wolf actually testified:
On the genital exam, I noted that on her bottom area on the vaginal opening and on the hymen, there was just a little bit of redness and irritation. The hymenal edge just looked a little bit irregular and bumpy. There were no clear signs of bleeding or there was no clear tearing, but it was just a little red, irritated and bumpy looking under magnification.
On cross-examination, when counsel asked where the redness was, Dr. Wolf responded: "She had a crescentic hymen, kind of looks like a smiley-face shaped. It looked a hair thicker than usual and a little bumpier than usual. It's usually real, real smooth, and it looked maybe a hair redder than usual." Dr. Wolf's testimony thus in fact suggested redness inside the vaginal area.
Based on the evidence, we cannot conclude that, had the jury been instructed on attempted first degree rape, it probably would have found defendant guilty of that lesser offense rather than first degree rape. Because we conclude that defendant has failed to show plain error, we must also reject defendant's argument that he was denied effective assistance of counsel when his trial counsel failed to request an instruction on attempted first degree rape. See Seagroves, 78 N.C. App. at 54, 336 S.E.2d at 688 ("There being no `plain error' in the jury instructions, defendant's assertion of ineffective assistance of counsel with respect thereto must also fail.").
No error.
Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).