NO. COA01-900
Appeal by defendant from judgments dated 14 October 1999 by
Judge Jerry R. Tillett in Dare County Superior Court. Heard in the
Court of Appeals 26 March 2002.
No brief for the State.
Pearlous Leon Bryant pro se defendant-appellant.
GREENE, Judge.
Pearlous Leon Bryant (Defendant) appeals judgments dated 14
October 1999 entered pursuant to jury verdicts finding Defendant
guilty of two counts of indecent liberties.
The Dare County Grand Jury and the Pasquotank County Grand
Jury indicted Defendant on charges of one count of statutory rape,
one count of statutory sexual offense, and three counts of indecent
liberties. After the trial court allowed the State's motion to
join the offenses for trial, the offenses were tried in Dare County
Superior Court.
The trial testimony of T.S., Defendant's fourteen-year-old
niece, revealed that Defendant, who was in his forties, had touchedT.S.'s breasts and buttocks on several occasions. On one occasion,
T.S. spent the night at Defendant's house. As she lay on the sofa,
Defendant covered her with a blanket. While placing the blanket on
her, Defendant “reached under the blanket, removed [T.S.'s] shorts,
and inserted [his] finger down below.” In August 1998, Defendant
again touched T.S., this time on her chest. T.S. asked to speak to
Defendant about this in her room. In her bedroom, Defendant told
T.S. to take off her shorts. T.S. initially resisted Defendant's
requests but complied as Defendant insisted she should take off her
shorts. T.S., who was not wearing any underwear, sat down on the
bed. Defendant opened the zipper of his pants and then lay on top
of T.S. T.S. told him to get off, but Defendant refused. T.S.
later told the police she was not sure whether Defendant had sex
with her that day.
Both T.S. and the investigating officer, Leary Sink (Sink),
testified to having recorded a telephone conversation between T.S.
and Defendant. During the conversation, T.S. told Defendant she
was “getting ready to tell something about this” and would be going
see a counselor the next day. T.S. asked Defendant: “So you want
me to say that you never touched me?” Defendant replied “Yes.”
During the direct examination of Defendant, his counsel
questioned Defendant regarding his prior criminal record. At the
end of the State's evidence and again at the close of all the
evidence, Defendant moved for a dismissal of the charges. The
trial court denied Defendant's motions. The State split up its
closing arguments by first opening, then allowing Defendant topresent his closing argument, and subsequently concluding its
argument.
A jury found Defendant guilty of two counts of indecent
liberties and not guilty of the three remaining charges. After
finding that the aggravating factors, one being that “[D]efendant
took advantage of a position of trust or confidence to commit the
offense,” outweighed the mitigating factors, the trial court
sentenced Defendant to two consecutive terms of forty-two to fifty-
one months imprisonment. The judgments cite the statute for the
crime of indecent liberties as N.C. Gen. Stat. § 14-202.A.
Following his review of the trial transcript and court files,
Defendant's appointed appellate counsel, John S. O'Connor
(O'Connor), was “of the opinion that no non-frivolous grounds for
appeal existed and related this to . . . [D]efendant.” After
supplying Defendant with a copy of the trial transcript and
inviting Defendant to bring any potential issues to his attention,
Defendant only questioned the prior record points assigned to him
during sentencing. Although O'Connor confirmed that the points
were correct, Defendant subsequently raised the issue twice in pro
se motions which the trial court denied. While Defendant indicated
to O'Connor that he understood there was no legal basis for an
appeal, O'Connor failed to obtain Defendant's written
acknowledgment that filing an appeal would be without merit.
On 13 July 2001, Defendant filed a “record on appeal” with
this Court which contained court documents, assignments of error,
and pro se arguments. Defendant filed additional documents on 20August 2001 with the trial court. The State filed a motion on 28
November 2001 seeking to have Defendant's appeal dismissed for
various violations of the North Carolina Rules of Appellate
Procedure. Both Defendant and O'Connor filed responses to the
motion. This Court denied the State's motion to dismiss on 16
January 2002 and also permitted O'Connor to withdraw as counsel of
record.
_______________________
The issues are whether: (I) the trial court, situated in Dare
County, lacked jurisdiction to try Defendant for an offense charged
in Pasquotank County; (II) the trial court erred in denying
Defendant's motion to dismiss the charges; (III) the disclosure to
the jury by Defendant's trial counsel of Defendant's criminal
record constituted ineffective assistance of counsel; (IV) the
trial court erred in failing to give a curative instruction to the
jury following an allegedly prejudicial statement by the
investigating officer regarding prior criminal encounters with
Defendant; (V) the tape recording of a conversation between
Defendant and T.S. constituted an illegally obtained involuntary
confession under the Fourth Amendment that should have been
excluded; (VI) Defendant was improperly denied a closing argument
while the State was permitted to make two closing arguments; (VII)
the trial court improperly relied on a statutory aggravating factor
that was an element of the offense; (VIII) Defendant has been
imprisoned pursuant to an incorrect statute for “secret peeping,”;
and (IX) Defendant's convictions should be reversed because he hasbeen “denied direct appeal since October 14th
, 1999.”
(See footnote 1)
I
Defendant first contends his conviction for the Pasquotank
County charge of indecent liberties (99 CRS 1424) tried in Dare
County Superior Court should be overturned as the trial court did
not have jurisdiction to try this charge. We disagree.
When two or more offenses have been joined for trial pursuant
to N.C. Gen. Stat. § 15A-926, each county in which the charged
offenses occurred “has concurrent venue as to all charged
offenses.” N.C.G.S. § 15A-132(b) (1999). In this case, both
counts of indecent liberties were joined for trial. Accordingly,
the Dare County Superior Court properly tried all of the charged
offenses.
II
Defendant next contends the trial court erred in denying his
motion to dismiss the charges.
A motion to dismiss is properly denied by the trial court if
“'there is substantial evidence (1) of each essential element of
the offense charged and (2) that defendant is the perpetrator of
the offense.'”
State v. Harding, 110 N.C. App. 155, 162, 429
S.E.2d 416, 421 (1993) (citation omitted). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
State v. Franklin, 327 N.C.162, 171, 393 S.E.2d 781, 787 (1990). All the evidence is to be
considered in the light most favorable to the State.
Harding, 110
N.C. App. at 162, 429 S.E.2d at 421. Under N.C. Gen. Stat. § 14-
202.1:
(a) A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he . . . :
(1) Willfully takes or attempts to take
any immoral, improper, or indecent
liberties with any child of either
sex under the age of 16 years for
the purpose of arousing or
gratifying sexual desire[.] . . .
N.C.G.S. § 14-202.1(a)(1) (1999). The uncorroborated testimony of
the victim is sufficient to convict under this section if the
testimony establishes all the elements of the offense.
State v.
Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993).
In this case, the evidence established Defendant was over
sixteen years of age and more than five years older than T.S.
There was also substantial evidence Defendant willfully took
indecent liberties with T.S. for the purpose of arousing or
gratifying his sexual desire when he inserted his finger in her
vagina the night she was sleeping at his house and when he lay on
top of T.S. in her bedroom with his pants unzipped. Consequently,
the trial court properly denied Defendant's motion to dismiss the
charges.
III
Defendant further argues his trial counsel's examination of
Defendant regarding Defendant's prior criminal record amounted to
ineffective assistance of counsel. We disagree. When a criminal defendant testifies, the State may cross-
examine him regarding his prior criminal record. N.C.G.S. § 8C-1,
Rule 609 (1999) (for purposes of impeachment). Defendant's trial
counsel questioned Defendant about his criminal record as a
preemptive measure knowing this information was open to the State
during cross-examination. As such, it was a question of strategy,
and “[d]isagreement[s] over trial tactics . . . generally do not
make the assistance of counsel ineffective.”
State v. Callahan, 93
N.C. App. 579, 582, 378 S.E.2d 812, 814,
disc. review denied, 325
N.C. 274, 384 S.E.2d 521 (1989). Accordingly, we find no error.
IV
Defendant also assigns error to the trial court's failure to
give a curative instruction following an allegedly prejudicial
statement by the investigating officer, Sink, regarding prior
criminal encounters with Defendant. Our review of the record does
not reveal any such statement. This assignment of error is
therefore overruled.
V
Defendant next characterizes the tape recording of his
conversation with T.S. as an illegally obtained involuntary
confession under the Fourth Amendment. We disagree.
Even if T.S. telephoned Defendant and taped the conversation
at the request of the police, Defendant's statements would not
constitute an illegally obtained confession because Defendant was
not in custody at the time of the recording.
See, e.g., State v.
Massey, 316 N.C. 558, 573, 342 S.E.2d 811, 820 (1986) (confessionis illegal under Fourth Amendment if obtained during a custodial
interrogation and the defendant either did not waive his Miranda
rights or his waiver was not a knowing, intelligent, and voluntary
decision);
see also State v. Powell, 340 N.C. 674, 687, 459 S.E.2d
219, 225 (1995) (recordation of statements made while the
defendant's cell mate acted as police agent after the defendant
invoked his right to counsel would violate the defendant's Fifth
Amendment rights),
cert. denied, 516 U.S. 1060, 133 L. Ed. 2d 688
(1996). Thus, Defendant's argument fails.
VI
In addition, Defendant claims he was denied a closing argument
while the State was granted two closing arguments. The record
shows the State was permitted to begin and end closing arguments
because Defendant introduced evidence following the close of the
State's evidence.
See State v. Macon, 346 N.C. 109, 114, 484
S.E.2d 538, 541 (1997) (discussing Rule 10 of the General Rules of
Practice for the superior and district courts that evidence has to
be introduced by the defendant in order to deprive him of the right
to open and close final arguments to the jury). Hence, there was
no error.
VII
Defendant argues the trial court found a statutory aggravating
factor that also constituted an element of the offense. The trial
court found as a statutory aggravating factor that “[d]efendant
took advantage of a position of trust or confidence to commit the
offense[s].” This is not an element of the offense of indecentliberties as found in section 14-202.1(a) and is discussed in issue
II of this opinion.
See N.C.G.S. § 14-202.1(a) (1999).
Accordingly, Defendant's contention is without merit.
VIII
Defendant next contends that he has been imprisoned pursuant
to an incorrect statute for “secret peeping,” an offense that is
not supported by the record.
In this case, the judgments list the statute number of
Defendant's offenses as “14-202.A.” No such statute exists. The
statute for secret peeping is N.C. Gen. Stat. § 14-202, whereas the
statute for taking indecent liberties with children is section 14-
202.1(a). As this constitutes an apparent clerical error, we
remand the judgments to the trial court for correction of this
error.
See In re D.D., 146 N.C. App. 309, ---, 554 S.E.2d 346, 356
(remanding case for the limited purpose of allowing the trial court
to make clerical correction in its order to reflect the proper
statutory provision),
appeal dismissed and disc. review denied, 354
N.C. 572, 558 S.E.2d 867 (2001).
IX
Finally, Defendant contends his convictions should be reversed
because he has been “denied direct appeal since October 14th
,
1999.” We disagree.
O'Connor stated that following his review of the trial
transcript and court files, he was “of the opinion that no non-
frivolous grounds for appeal existed and related this to . . .
[D]efendant.” After supplying Defendant with a copy of the trialtranscript and inviting Defendant to bring any potential issues to
his attention, Defendant only questioned the prior record points
assigned to him. Although O'Connor confirmed that the points were
correct, Defendant raised the issue twice in
pro se motions which
the trial court denied.
While Defendant indicated to O'Connor that he understood there
was no legal basis for an appeal, O'Connor failed to obtain
Defendant's written acknowledgment that filing an appeal would be
without merit. Our review, however, of Defendant's
pro se
arguments, the transcript, and his filings reveal Defendant
received a fair trial free from prejudicial error.
See N.C.G.S. §
15A-1443 (1999). Accordingly, this assignment of error is
overruled.
(See footnote 2)
No error in part; remanded in part.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1