An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-532


Filed: 15 April 2003


v .                         Davie County
                            No. 00 CRS 4808, 4809, 4810, 4811, 00 CRS 50629, 50631

    Appeal by defendant from judgments dated 11 May 2001 by Judge Kimberly S. Taylor in Superior Court, Davie County. Heard in the Court of Appeals 13 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State.

    C. Gary Triggs, P.A., by C. Gary Triggs, for defendant- appellant.

    McGEE, Judge.

    Scotty James O'Neal (defendant) was indicted on one count of first degree kidnapping and five counts of second degree sexual offense. The evidence presented at trial tended to show the following.
    Margaret Stroud O'Neal (Ms. O'Neal) testified at trial that she and defendant were married but had been separated since 14 July 2000. Defendant maintained contact with their two minor children and occasionally stayed overnight with the family. Ms. O'Neal testified that defendant visited the residence on 23 August 2000 to pick up some personal items and discuss their martial situation. During the evening, Ms. O'Neal and defendant argued and defendantstated he was going to take control of the marital situation and that he wanted to be with Ms. O'Neal sexually, regardless of her objections. Defendant left the house and returned approximately an hour and a half later.
    Ms. O'Neal testified that defendant's mother came to the house to say that she had tried to call Ms. O'Neal by telephone but could not get through. Ms. O'Neal subsequently noticed that the telephone cords had been disconnected from the walls.
    Ms. O'Neal walked into the bedroom where she and defendant continued arguing. Defendant told her that she could either take off her clothes or that he would remove them himself. Ms. O'Neal testified she attempted to leave the bedroom but was blocked by defendant. After continuing to ask Ms. O'Neal to remove her clothes, defendant grabbed her by the wrist, threw her on the bed, and tore her shirt off. Defendant subsequently removed Ms. O'Neal's shorts and then removed his own clothes. Ms. O'Neal testified that defendant forced her to perform oral sex on him and placed his fingers into her vagina and anus.
    Ms. O'Neal testified that their son woke up and started crying. Defendant went upstairs to put him back to bed. She locked herself in the bathroom, grabbed some clothes, jumped out the bathroom window, and ran to a neighbor's house where she called 911. Officers from the Davie County Sheriff's Department arrived and entered the residence. Officer Gary Williams (Officer Williams) testified that he searched for defendant throughout the residence and found him sitting on the floor of the bedroom closetholding the couple's son.
     Ms. O'Neal also testified that before defendant physically assaulted her, she went out to the garage and retrieved a miniature cassette tape recorder. She took the tape recorder with her when she and defendant entered the bedroom. She testified that she turned the recorder to voice activation mode and threw it into a pile of laundry without defendant's knowledge. After the officers arrived, Ms. O'Neal gave the tape and tape recorder to Officer Williams.
    Defendant testified that he was at the house on the evening of 23 August 2000. Defendant stated that he played with their son while Ms. O'Neal gave their daughter a bath. After the children went to bed, defendant said he and Ms. O'Neal tried to talk. Defendant stated that he removed the telephone cords from the house to keep the telephone from ringing. He testified that he and Ms. O'Neal continued to argue and that she fell back on the bed when he stopped her from forcing her way past him. Defendant stated that nothing else happened between them and that the events heard on the tape recording were not indicative of the events of that night.     A jury convicted defendant of first degree kidnaping and five counts of second degree sexual offense. The trial court sentenced defendant to consecutive sentences of a minimum of 73 months and a maximum of 97 months in prison for first degree kidnapping and a minimum of 73 months and a maximum of 97 months in prison for the five counts of second degree sexual offense. Defendant appeals.
    Defendant first argues the trial court erred in granting theState's motion in limine pursuant to N.C. Gen. Stat. § 8C-1, Rules 403 and 412. Defendant contends the motion was too broad and deprived him of the opportunity to defend himself and to cross- examine the State's witness concerning her credibility.
    N.C. Gen. Stat. § 8C-1, Rule 412 (2001) sets forth conditions under which the sexual behavior of a complainant is relevant in rape and sex offense cases. "Rule 412 provides that evidence of sexual behavior of the complainant is irrelevant unless it falls within one of four categories listed in the rule." State v. Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d 853, 854, disc. review denied, 333 N.C. 793, 431 S.E.2d 28 (1993). Evidence of sexual behavior of the complainant is irrelevant and inadmissible unless the sexual 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.

Rule 412(b)(1)-(4).
    Evidence that is otherwise relevant may be excluded under Rule 403 "if its probative value is substantially outweighed by thedanger of unfair prejudice." N.C. Gen. Stat. § 8C-1, Rule 403 (2001). "Whether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court." State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992). We will not overturn the decision of a trial court unless it "is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
    In the present case, defendant sought to elicit testimony from Ms. O'Neal regarding a possible sexual relationship between her and a friend for the purpose of impeaching her credibility. After an examination of the transcript of Ms. O'Neal's voir dire hearing, we hold that such evidence was properly excluded by the trial court. The transcript of the voir dire hearing showed that the evidence did not fall under one of the four exceptions of Rule 412 and was therefore irrelevant. The evidence lacked any tendency to make the determination of the existence of a consequential fact more or less probable.
    Additionally, the probative value of the evidence was substantially outweighed by its danger of unfair prejudice. The testimony defendant sought to develop would have focused on Ms. O'Neal's behavior rather than evaluating her credibility and tendency for truthfulness. Focusing on her alleged behavior would have confused the issues and could have potentially misled the jury regarding the ultimate determination of the facts. Defendant was able to cross-examine Ms. O'Neal concerning the factual allegationsthat comprised the charges and he was not denied the opportunity to confront his accuser. Even assuming arguendo that the trial court erred in excluding the testimony, the outcome of the trial would not have been affected considering the overwhelming evidence of defendant's guilt. State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996). The trial court did not err in granting the State's motion in limine. This assignment of error is without merit.
    Defendant next argues the trial court erred in sustaining the State's objection to defendant's line of questioning that attempted to impeach the credibility of witnesses regarding the time line of the events. Since defendant failed to cite any authority in his brief to support this argument, we are not persuaded that the trial court abused its discretion. N.C.R. App. P. 28(b)(6); Byrne v. Bordeaux, 85 N.C. App. 262, 265, 354 S.E.2d 277, 279 (1987).
    Defendant next argues the trial court erred in allowing the introduction of enhanced tapes into evidence and by playing the tape recording for the jury without adequate foundation. Defendant further contends the tape recording was unduly prejudicial because the trial court failed to grant defendant's request for funds to obtain an expert examination of the tape recording's authenticity.     "[T]he proponent of an audiotape must authenticate it by showing that it is what the proponent claims." State v. Martinez, 149 N.C. App. 553, 559, 561 S.E.2d 528, 532 (2002); see N.C.R. Evid. 901(a). "Under Rule 901, testimony as to accuracy based on personal knowledge is all that is required to authenticate a taperecording, and a recording so authenticated is admissible if it was legally obtained and contains otherwise competent evidence." State v. Stager, 329 N.C. 278, 317, 406 S.E.2d 876, 898 (1991).
    The trial transcript shows that Ms. O'Neal testified that she recorded the incident and identified the voices of her and defendant on the tape recording. Detective Robert Trotter of the Davie County Sheriff's Department testified to the authenticity, care, and custody of the tape recording during the course of the investigation. Stuart Campbell, special agent with the N.C. State Bureau of Investigation, copied and enhanced the tape recording and testified to the enhancing process and the tape recording's authenticity. The testimony at trial demonstrated personal knowledge of the tape recording to authenticate it and subsequent copies thereof.
    Defendant also contends the trial court should have granted his motion for funds to hire an expert to determine the authenticity of the tape recording.
            To first establish a threshold showing of need for expert assistance, a defendant must prove that "(1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that the expert assistance will materially assist him in the preparation of his case." In determining whether a defendant has made the requisite showing of a particularized need, the court "should consider all the facts and circumstances known to it at the time the motion for . . . assistance is made." The showing demanded is flexible and is to be resolved on a case-by-case basis and not by a bright-line rule. The "mere hope or suspicion of the availability of certain evidence that might erode the State's case or buttress a defense will not suffice to satisfy therequirement that defendant demonstrate a threshold showing of specific necessity for expert assistance." Similarly, undeveloped assertions that the requested expert assistance would be beneficial or even essential to the preparing of an adequate defense are insufficient to satisfy this threshold requirement.

State v. Garner, 136 N.C. App. 1, 7-8, 523 S.E.2d 689, 694-95 (1999) (citations omitted), cert. denied, 351 N.C. 477, 543 S.E.2d 500 (2000).
    Defendant has failed to show a particularized need for having an expert witness examine the tape recording. Defendant has made no specific factual allegation that the tape recording was tampered with or was inauthentic. Defendant concedes in his brief that the "expert might have corroborated the validity of the recording." Defendant's assertion that expert assistance would have been beneficial is undeveloped and is insufficient to satisfy the threshold showing for granting defendant's motion. This assignment of error is without merit.
    Defendant next argues the trial court erred in denying his motion to dismiss the charges because the State failed to establish a prima facie case on each element of second degree sexual offense. Defendant contends that there was insufficient evidence presented to support the fourth element that "the defendant and the victim were living separate and apart."
        "In ruling on a motion to dismiss, the trial court need only determine whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." Evidence is considered substantial when "a reasonable mind might accept [it] as adequate to support aconclusion." The motion to dismiss should be denied if there is substantial evidence supporting a finding that the offense charged was committed.

State v. Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208 (2002) (citations omitted).
    N.C. Gen. Stat. § 14-27.5 (2001) lists the elements of second degree sexual offense and states:
        (a)    A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:
            (1)    By force and against the will of the other person . . . .

    Defendant was indicted on five counts of second degree sexual offense under N.C.G.S. § 14-27.5. The statute does not include an element that requires a defendant and victim to be living separately and apart. The State presented sufficient evidence to support each of the elements of the charge and the trial court did not err in denying defendant's motion to dismiss. This assignment of error is without merit.
    Defendant next argues the trial court erred in making numerous inappropriate comments in the presence of the jury that prejudiced defendant and his counsel. N.C. Gen. Stat. § 15A-1222 (2001) states that a "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." Judges must be careful to ensure they do not directly or indirectly convey an opinion to the jury. State v. Jenkins, 115 N.C. App. 520, 524-25, 445 S.E.2d 622, 625, disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994). "Whether the judge's comments, questions or actions constitute reversible erroris a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant." State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). Prejudicial error occurs in a criminal case "when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility." Id.
    In the case before us, defendant speculates that unintentional and slight differences in the treatment of individuals appearing before the trial court might have had a bearing on the jury's decision. Defendant uses, as examples of differential treatment, the offer of coffee to a testifying police officer by the trial judge and the trial judge's allowing a defense witness to answer an additional question without retaking the witness stand. However, defendant fails to meet his burden of demonstrating that he was prejudiced by the trial court's conduct. These two incidences cited by defendant were isolated and defendant does not demonstrate how they affected the jury's decision. In light of the context of the entire record, we conclude that the trial court's behavior did not intimate an opinion on a question of fact or defendant's credibility that resulted in prejudice. This assignment of error is without merit.
    Defendant finally argues that his trial counsel was so ineffective that he was deprived of his constitutional right to effective assistance of counsel. "When a defendant attacks hisconviction 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).
        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.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984).
    Defendant states that leading questions, non-responsive answers, a request that defendant testify regarding advice defense counsel provided, and failure to strike testimony after sustained objections are examples of deficient performance by defense counsel. Defendant also argues that defense counsel failed to object to highly prejudicial evidence offered by the State. However, defendant has failed to discuss such evidence in his brief or demonstrate how he was prejudiced by its admission. Defendant has also failed to specifically demonstrate how defense counsel's performance fell below a standard of reasonableness and deprived him of a fair trial. This assignment of error is without merit.
    No error.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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