STATE OF NORTH CAROLINA
v
.
Lincoln County
Nos. 00 CRS 50204
JOSE FREDDY GUILLEN VEGA 01 CRS 45
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant appellant.
TIMMONS-GOODSON, Judge.
Jose Freddy Guillen Vega (“defendant”) appeals from his
conviction and resulting sentence entered upon a jury verdict
finding him guilty of taking indecent liberties with a child and
statutory sexual offense. For the reasons stated herein, we find
no error by the trial court.
At trial, the State presented evidence tending to show the
following: The alleged victim in this case was fourteen years old
in April of 2000 when she first met defendant during a family
vacation. Defendant was fifty years old at the time. When the
victim's family returned to their residence in Lincolnton, North
Carolina, defendant continued his friendship with the family bybringing his children to the victim's house on the weekends to play
with her younger siblings. During one of the visits, defendant
talked to the victim about potential summer employment for her
working with computers. On 8 June 2000, the victim agreed to
accompany defendant to the promised job site. Instead of taking
the victim to the job site, defendant took her to a motel in
Lincolnton. When they arrived at the motel, defendant told the
victim that “this was her job” and ordered her to put on lingerie
that he had brought with him. The victim testified that she was
frightened of defendant and complied with his demands. After the
victim dressed herself in the lingerie, defendant ordered her to
lie on the bed. He then proceeded to touch the victim's breasts
and put his tongue inside her vagina. Defendant later photographed
the victim wearing “very sexy clothes for pornographic pictures.”
Defendant and the victim left the motel approximately thirty
minutes later. Defendant assured the victim that “this was a
normal thing that happened” and that she need not be afraid.
Defendant then took the victim, her siblings, and his children to
dine at a restaurant.
The victim did not immediately inform her mother because “she
probably would want to kill him.” Several days later, defendant
again approached the victim, telling her that she should “believe
in him, to give him another opportunity” and that he would take her
to “where [her] real job was” located. Defendant took the victim
to a second motel located in Gastonia. Once inside the motel room,
the victim went to the bathroom. When she came out, defendant wasnaked and holding a bottle of red liquid. Defendant told the
victim he “would not allow [the victim] to hurt because of what he
was going to do.” Defendant then took the victim's hand and placed
it on his penis. The victim stated that she was “very afraid” and
ran back into the bathroom. When she reemerged, defendant was
dressed and told her that “it had been a wasted day and a waste of
money.” Later that evening, the victim told her mother of
defendant's actions.
Jose Antonio Alfaro (“Alfaro”) and his cousin, Dennis Soto
(“Soto”) gave further testimony on behalf of the State. Alfaro
stated that he was self-employed as a mechanic and a notary public,
and that defendant came to his business and asked him to notarize
some documents. While Alfaro notarized the documents, defendant
pulled out a video camera and offered to show a videotape to
Alfaro. The videotape depicted defendant performing oral sex upon
the victim. Soto was also present and viewed the videotape.
According to Soto, defendant boasted that the victim was “only
fourteen,” and that he had recorded the videotape by concealing the
camera inside a briefcase.
Alberto Calvo (“Calvo”) further testified on behalf of the
State. Calvo stated that he was a sales manager at an automobile
supply store at which defendant was a regular customer. Calvo
testified that, while visiting the store, defendant showed him
photographs depicting the victim wearing lingerie.
Lieutenant Kent Lukach (“Lieutenant Lukach”) of the Lincolnton
Police Department interviewed defendant on 13 July 2000. Defendanttold Lieutenant Lukach that the victim wanted his assistance in
leaving her home in order to pursue “an alternative lifestyle.”
According to defendant, he rented the motel room on 8 June on
behalf of the victim so that she could “have her lesbian friends
over.” When Lieutenant Lukach questioned defendant regarding the
victim's possible motive in making such accusations against
defendant, defendant asserted that the victim's mother was angry at
him for refusing to obtain a false driver's license for her.
Defendant presented evidence at trial tending to show the
following: Amy Castellanos (“Castellanos”), a former employer of
the victim, testified that when she applied for employment, the
victim submitted various documents listing her age as eighteen. A
second witness, Letitia Trejo, testified that she was acquainted
with the victim, who told her that she was eighteen years old and
married. Defendant's last witness was Marco Penetio Areas, who
testified that the victim's passport from Costa Rica appeared to be
invalid, because it lacked a fingerprint stamp. On rebuttal, the
victim's mother testified that her daughter's passport did not have
a fingerprint stamp because it was not required of minors.
At the close of the evidence, the jury found defendant guilty
of statutory sexual offense and of taking indecent liberties with
a child. The trial court sentenced defendant to a minimum term of
imprisonment of 240 months and a maximum term of 297 months. From
his conviction and resulting sentence, defendant appeals.
__________________________________________________
Defendant presents four assignments of error on appeal,arguing that the trial court erred in (1) its instructions to the
jury; (2) admitting evidence concerning illegal immigration
documents; and (3) admitting evidence of other sexual acts between
defendant and the victim. Defendant further contends that (4) he
was denied effective assistance of counsel. For the reasons that
follow, we find no error in the judgment of the trial court.
By his first assignment of error, defendant argues that the
trial court erred in its instructions to the jury. Defendant
asserts that the instructions were fatally ambiguous in that they
did not specify the date or location of the charged offense, but
rather informed the jury that if they found defendant committed a
statutory sexual offense or took indecent liberties with a child
“on or about the alleged date,” it would be the jury's duty to
return a verdict of guilty as to these charges. Because the State
presented some evidence of sexual acts between defendant and the
victim other than the 8 June incident for which defendant was
charged, defendant contends that the jury might have convicted
defendant based on acts other than those occurring on 8 June as
charged in the indictment. Defendant asserts that the ambiguity
was such as to require a new trial.
Because defendant did not object to the jury instructions at
trial, he must show that the trial court committed plain error in
order to gain a new trial. See State v. Odom, 307 N.C. 655, 660-
61, 300 S.E.2d 375, 378 (1983). The test for plain error is
whether, absent the omission, the jury probably would have returned
a different verdict. See id. at 661, 300 S.E.2d at 378; State v.Joplin, 318 N.C. 126, 132, 347 S.E.2d 421, 425 (1986).
At the outset of the trial, the trial judge informed the jury
that defendant was charged with two offenses, both of which
allegedly occurred on 8 June 2000. The victim specified eight
times during her testimony that the acts for which defendant was
charged occurred on 8 June 2000. Specifically, the victim
testified that on 8 June 2000, defendant took her to a motel in
Lincolnton, where he photographed her wearing lingerie, touched her
breasts, and put his tongue inside her vagina. The victim then
testified to a second motel visit in Gastonia occurring “two or
three days” later during which defendant was naked and forced her
to place her hand on his penis. The victim never testified as to
a specific date regarding the motel visit in Gastonia.
Assuming arguendo that the trial court's failure during the
jury charge to specifically instruct the jury as to the date and
location of the alleged offenses was error, it was not plain error.
During defendant's trial, the jury was repeatedly informed that the
alleged offenses with which defendant was charged occurred on 8
June 2000. The 8 June date was the only date mentioned by the
victim. Given these facts, together with the strong evidence of
defendant's guilt, there is no reasonable probability that, had the
trial court specifically included the date and location of the
charged offense in the jury instruction, a different result would
have ensued. We therefore overrule this assignment of error.
Defendant next argues that the trial court erred in admitting
evidence concerning immigration documents found in defendant'spossession. Defendant contends this evidence had no probative
value other than to show defendant's propensity for crime and as
such, was improperly admitted by the trial court. This argument is
without merit.
Although the State introduced some evidence tending to show
that defendant was involved in preparing false immigration
documents, defendant also introduced substantial evidence to that
effect. At trial, Lieutenant Lukach testified regarding a search
of defendant's residence. During the search, the police
confiscated numerous “immigration documents that were partially
filled out.” Police also seized a briefcase containing U.S.
passport documents, Mexican driver's licenses, and federal
immigration documents. Defendant did not object to this evidence,
and during cross-examination by defense counsel, elicited from
Lieutenant Lukach that defendant had three passports on his person
at the time of his arrest. Defense counsel also elicited testimony
by the victim that defendant had prepared documents for her for
purposes of a job application. Defendant's own witness,
Castellanos, testified extensively regarding these false documents
prepared by defendant, which listed the victim's age as eighteen.
Defendant cannot now complain about evidence elicited by him and
admitted without objection. See State v. Rivers, 324 N.C. 573,
575-76, 380 S.E.2d 359, 360 (1989). We therefore overrule this
assignment of error.
By his third assignment of error, defendant contends that the
trial court erred in admitting evidence concerning the second motelvisit in Gastonia during which defendant disrobed and forced the
victim to touch his penis. Although defendant did not object to
the evidence, he nevertheless asserts plain error by the trial
court in admitting it. Defendant's argument is without merit.
Rule 404(b) of the North Carolina Rules of Evidence provides
in pertinent part that:
Evidence 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) (2001). Evidence that the
defendant committed similar acts that are not too remote in time
may be admitted to show that these acts and those for which the
defendant is being tried all arose out of a common scheme or plan
on the part of the defendant. State v. Rosier, 322 N.C. 826, 828,
370 S.E.2d 359, 360-61 (1988); State v. DeLeonardo, 315 N.C. 762,
770-71, 340 S.E.2d 350, 356-57 (1986). In Rosier, the defendant
was charged with first-degree sexual offense. Over the defendant's
objections, the trial court admitted evidence of similar sexual
acts by the defendant with two other children. Upon appeal, our
Supreme Court held that, because the other incidents were similar
and occurred within three months of the incident for which the
defendant was tried, such evidence was properly admitted to show a
common scheme or plan by the defendant. See Rosier, 322 N.C. at
828, 370 S.E.2d at 361. In the instant case, the evidence tended to show that
defendant took the victim to a second motel two or three days after
the incident for which defendant was charged occurred. Before each
incident, defendant lured the victim into accompanying him with
promises of legitimate employment. Once at the motel, defendant
committed overtly sexual acts with the victim. As such, there was
sufficient similarity and proximity in time between the two
separate incidents to admit evidence of the second motel visit, and
the trial court did not err in admitting this evidence. This
assignment of error is overruled.
By his final assignment of error, defendant contends that he
was denied effective assistance of counsel in violation of the
Sixth Amendment. In order to substantiate a claim for ineffective
assistance of counsel, a defendant must demonstrate that: (1) his
counsel's performance was deficient such that his counsel was
basically not functioning as legal “counsel” at all; and (2) he was
prejudiced by his counsel's ineffectiveness in such a way that he
was deprived of a fair trial. See State v. Braswell, 312 N.C. 553,
562, 324 S.E.2d 241, 248 (1985). A stringent standard of proof is
required to substantiate ineffective assistance claims. See State
v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871 (1974).
After a careful review of the transcript, we conclude that
defendant has failed to demonstrate that his counsel's performance
was deficient, or that he was prejudiced by any ineffectiveness on
the part of counsel's performance. Defense counsel vigorously
cross-examined the State's witnesses and presented severalwitnesses who testified that the victim had lied about her age.
Defense counsel did not object to the introduction of evidence
concerning illegal immigration documents, but clearly adopted the
evidence as part of the defense, asserting that the victim's mother
was angry with defendant because he refused to produce a false
driver's license for her. Because strategic and tactical decisions
are the exclusive province of the lawyer, trial counsel are granted
wide latitude in matters of defense strategy. See State v. Milano,
297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979), overruled in part on
other grounds, State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).
Finally, we note that the State's case against defendant was
strong. Defense counsel attempted to refute not only the victim's
testimony, but the testimony of three other witnesses who testified
that defendant bragged about the incident with the victim and
showed them photographs and videotapes he made of her. We conclude
that defendant received an able defense, and we overrule this
assignment of error.
In conclusion, we hold that defendant received a trial free
from prejudicial error.
No error.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).
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