NO. COA01-692

STATE OF NORTH CAROLINA

    v.                            Wake County
                                Nos.    00 CRS 18050, 18052
WILLIAM “BILLY” WILLIAMS
    

    Appeal by defendant from judgments dated 18 October 2000 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 26 March 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State.

    Richard E. Jester for defendant-appellant.

    GREENE, Judge.

    William “Billy” Williams (Defendant) appeals from judgments dated 18 October 2000 entered consistent with a jury verdict finding him guilty of one count of first-degree statutory rape and two counts of statutory sexual offense.
    The State charged Defendant with one count of statutory rape and two counts of statutory sexual offense with D.S., a fifteen- year-old female. At trial, D.S. testified that in early February 2000, she went with her friend and schoolmate M.G. to visit Lydia Davis (Davis). Defendant and his two young daughters lived in Davis' house. Davis, M.G., and Defendant's oldest daughter went to Burger King, leaving D.S. alone with Defendant and his two-year-olddaughter, who was in Davis' bedroom. After telling D.S. she was cute, hugging her, and touching her underneath her clothes, Defendant “pulled out his penis, and he said, [']Kiss it,['] and he kind of pushed [D.S.'] shoulders down.” D.S. performed fellatio on Defendant for approximately five minutes. Defendant then performed cunnilingus on her. When Davis, M.G., and Defendant's oldest daughter returned from Burger King, Defendant went into Davis' room while D.S. “waited” in the kitchen. A short time later Davis left the house to attend an evening class at a community college. D.S. telephoned her father to say that she would be late coming home but was on her way. Thereafter, Defendant told D.S. he wanted to show her something, and Defendant brought D.S. downstairs to the laundry room where she again performed fellatio on him. Defendant then told D.S. to call M.G. downstairs. Both girls performed oral sex on Defendant before leaving the house.
    Two weeks later, D.S. walked to Davis' house to show her new dog to Defendant's daughter. Defendant called D.S. into Davis' bedroom and told her to close and lock the door. After performing oral sex on each other, they engaged in vaginal intercourse until they were interrupted by knocking at the bedroom door. D.S. left the house with M.G., who had arrived while D.S. was in the bedroom with Defendant. D.S. told M.G. what had happened.
    In late February 2002, Defendant again telephoned D.S. D.S. went to see Defendant, intending to tell him “[t]hat this had to come to an end.” Defendant had vaginal intercourse with D.S. on a couch in the living room until Defendant noticed someone looking atthem through a window. Defendant repeatedly telephoned D.S. thereafter, asking to videotape and photograph her while she undressed.
    On 10 March 2000, D.S. told her school counselor, Ben Bondurant (Bondurant), about her sexual contacts with Defendant. Bondurant notified the authorities. Raleigh Police Detective T.A. Frattini (Frattini) was assigned to the case and interviewed D.S. at her school on 13 March 2000. Both Bondurant and Frattini testified at trial, corroborating D.S.' testimony.
    The State also attempted to call M.G. as a witness, which led to the following exchange:
        Q. [M.G.], have you ever seen [D.S.] and [Defendant] engage in any sexual act?

        A. I have nothing to say. I have nothing to say.

        Q. Have you been crying this morning, [M.G.]?

        A. No.

        Q. Okay. Let me repeat the question. Have you ever seen [D.S.] and [Defendant] engage in a sex act before?

            [DEFENSE COUNSEL]: Objection, asked and answered.

            COURT: Overruled. She hasn't answered anything.

        A. I have nothing to say. I don't know anything.

After a voir dire in which M.G. first attempted to assert her Fifth Amendment right to silence and then claimed to have no memory of the events in question, the trial court declared her unavailable under N.C. Gen. Stat. § 8C-1, Rule 804. When the jury returned tothe courtroom, the trial court announced, “[t]here will be no further questions of this witness[,]” and the trial proceeded.
    The parties stipulated that D.S. was fifteen years old and Defendant was thirty-eight years old at the time of the alleged incidents. Defendant offered no evidence. Defendant was convicted of statutory rape and two counts of statutory sexual offense with a minor.

    The issues are whether: (I) defense counsel was ineffective in failing to either request a mistrial based on M.G.'s testimony request that her testimony be stricken, or request the trial court for a curative instruction; and (II) the trial court committed plain error in failing to declare a mistrial or offer a curative instruction to the jury after M.G.'s testimony.

    Defendant asserts his trial counsel was ineffective in failing to either request a mistrial based on M.G.'s testimony that her testimony be stricken from the record, or that the trial court offer a curative instruction. Because of counsel's inaction, Defendant argues “[t]he jury was left to wonder or speculate, and could only suppose what [M.G.] should have or would have answered to the question” posed by the State. He further contends “it is almost certain [the] jurors believed that [M.G.] would have corroborated the testimony of [D.S.] because they were never instructed not to consider the possible answers.”
    A defendant complaining of ineffective assistance of counselmust show both that counsel's performance fell below an objective standard of reasonableness and that counsel's deficiencies had a probable impact on the outcome at trial. State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). “[I]f a reviewing court 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.” Id. “A mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under the law.” State v. Chapman, 294 N.C. 407, 417-18, 241 S.E.2d 667, 674 (1978). The trial court may use a curative instruction to remove possible prejudice arising from inadmissible or otherwise improper material put before the jury. See generally State v. Holmes, 120 N.C. App. 54, 65, 460 S.E.2d 915, 922, disc. review denied, 342 N.C. 416, 465 S.E.2d 545-6 (1995).
    Defendant has shown no probability of a different outcome at trial had counsel requested a mistrial, a curative instruction, or moved to strike M.G.'s responses. The extent of M.G.'s brief testimony was: “I have nothing to say” and “I don't know anything.” These statements in no way assisted the State. If anything, they contradicted D.S.' allegation that M.G. witnessed any sexual activity between D.S. and Defendant. Accordingly, “[i]t could only be error favorable to [Defendant] to admit testimony” that rebuts the claims of his accuser. State v. Jones, 342 N.C. 457, 466, 466 S.E.2d 696, 700, cert. denied, 518 U.S. 1010, 135 L. Ed. 2d 1058(1996). Moreover, the State's questions to M.G. were valid and proper. They did not assume any facts not already in evidence but “incorporated facts which had been established” by D.S.' testimony. State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 19 (1996); see also State v. Fleming, 350 N.C. 109, 139, 512 S.E.2d 720, 740 (1992) (“'[a] prosecutor's questions are presumed to be proper unless the record shows that they were asked in bad faith'”) (citation omitted)), cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). The questions posed to M.G. did not suggest anything to the jury that had not been directly stated by the complainant from the witness stand. Therefore, they did not provide grounds for a mistrial or warrant a curative instruction or the striking of M.G.'s testimony.

    In a related argument, Defendant asserts the trial court committed plain error in failing to declare a mistrial or offer a curative instruction to the jury after M.G.'s testimony. In order to constitute plain error, “the error must be 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Roseboro, 344 N.C. 364, 374, 474 S.E.2d 314, 319 (1996) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)). As discussed above, nothing in the State's questions or M.G.'s responses amounted to a fundamental error altering the outcome of Defendant's trial. Defendant's suggestion that he wassomehow prejudiced in the eyes of the jury by M.G.'s refusal to testify is wholly speculative and does not satisfy the plain error standard. See id.
    In his brief to this Court, Defendant expressly abandons his remaining assignments of error listed in the record on appeal. Accordingly, we do not address these issues.
    No error.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

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