An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1013

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2003

STATE OF NORTH CAROLINA

     v .                              Mecklenburg County
                                     No. 01 CRS 4944
BOBBY RODELL McLEAN

    Appeal by defendant from judgment entered 2 April 2002 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

    Public Defender Isabel Scott Day, by Assistant Public Defender Dean Paul Loven, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Bobby Rodell McLean was arrested on 30 January 2001 and later indicted on 19 February 2001 on one count of statutory rape of a person thirteen years old in violation of N.C. Gen. Stat. § 14-27.7A (2001) and one count of taking indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1 (2001).
    Defendant, born 15 December 1968 (making him 31 years old at the time of the incident), was tried at the 26 March 2002 Criminal Session of Mecklenburg County Superior Court. The State's evidence tended to show that the victim, born 27 April 1987, lived with her grandmother, Martha Dixon, during the relevant times and during the trial. The victim, thirteen at the time, came to know defendantthrough her mother, Constance Glenn, who was dating defendant's cousin, Ronald Clark. Defendant would apparently accompany his cousin when he came to visit the victim's mother.
    On one evening, the victim could not be located. Her mother had instructed defendant to drop the victim off at her grandmother's, but she never arrived. The victim actually called her mother to tell her that she was babysitting for defendant's niece. However, this was untrue. Thereafter the grandmother, grandfather, mother and her boyfriend went over to the house where defendant was supposed to be that night. There they found defendant and the victim at around 4:00 a.m. The victim was taken back to her grandmother's house. The next morning, her grandmother noticed that the victim's panties were stiff and smelled like they had semen on them. At this point, grandmother called the police.     The victim was taken to the doctor where it was determined that she was pregnant and had contracted a venereal disease. An abortion was performed on 17 November 2000. A paternity test established that defendant was the father (99.99%).
    Defendant was called by the police for questioning. He went to the police station voluntarily. At first he denied sexual contact with the victim, but then recanted and made a statement confessing that he had had sexual contact with the victim. According to defendant, he, the victim's mother, his cousin, and the victim were at his niece's house where they were all drinking. He had gone to lie down in a back bedroom, and the victim kept going in and out of the room. The victim was wearing a shortskirt, panties and a top, while defendant was only wearing pajama pants. The victim climbed up on the bed, straddled defendant and began rubbing against him. When he became erect, she grabbed his penis, pulled her panties to the side and attempted to put it inside her. Defendant then claimed that he passed out and could not remember anything else. The next morning, the victim was still there singing, and she informed defendant that they “did it.” Defendant did not believe her. Defendant maintained that he had blacked out due to alcohol.
    The victim testified at trial that she had had sex with defendant twice, that she loved him and that he had done nothing wrong. She also testified that her mother had approved of the two being together. She testified that she initiated the sexual contact both times, and both times defendant was drunk. Ever since the incident, she had called and written letters to defendant, professing her love for him and her desire for them to be together.
    The jury found defendant guilty on both counts on 28 March 2002. It was determined that defendant had a prior record level of III, and was sentenced in the mitigated range to a minimum of 204 months and a maximum of 254 months. Defendant appeals.
    Defendant presents the following arguments on appeal: Defendant's right to effective assistance of counsel under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, § 19 and 23 of the N.C. Constitution was violated by defendant's counsel's conduct at trial where (I) counsel improperly argued that the same transaction could not be used to supportconvictions for statutory rape and indecent liberties, indicating counsel had not properly informed defendant of the nature of the defenses available to him; (II) counsel improperly argued he should be able to present the affirmative defenses of voluntary intoxication and unconsciousness for the crimes of statutory rape and indecent liberties, indicating counsel had not properly informed defendant of the nature of the defenses available to him; (III) counsel pursued a line of questioning about DNA evidence that buttressed instead of attacked evidence favorable to the State; and (IV) counsel asked the victim who was the aggressor during the alleged incident, where consent is no defense to statutory rape or taking indecent liberties with a minor, indicating counsel had not properly informed defendant of the nature of the defenses available to him.

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    Our Supreme Court has stated that:
            To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). First, he must show that counsel's performance fell below an objective standard of reasonableness. See State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different. Id. at 563, 324 S.E.2d at 248.

            There is a presumption that trial counsel acted in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694. In analyzing thereasonableness under the performance prong, the material inquiry is whether the actions were reasonable considering the totality of the circumstances at the time of performance. Id. Reviewing courts should avoid the temptation to second-guess the actions of trial counsel, and judicial review of counsel's performance must be highly deferential. Id. Under Strickland, a defendant must also show that he was prejudiced by his trial counsel's deficient performance to such a degree that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 80 L. Ed. 2d at 698.

State v. Gainey, 355 N.C. 73, 112-13, 558 S.E.2d 463, 488, cert. denied, ___ U.S. ___, 154 L. Ed. 2d 165 (2002).
    Further, “if 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.” Braswell, 312 N.C. at 563, 324 S.E.2d at 249. After reviewing the record, this Court concludes, as in Braswell, that “there is no reasonable probability that any of the alleged errors of defendant's counsel affected the outcome of the trial.” Id.
    Again as in Braswell, the evidence of guilt in this case is overwhelming. This is so especially considering the type of case this was. Statutory rape of a person thirteen years old in violation of N.C. Gen. Stat. § 14-27.7A and taking indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1 are unique in that there are few defenses to these crimes once uncontradicted evidence of their commission is shown. The evidenceirrefutably showed that defendant is over 16 years old and at least five years older than the victim, the victim was 13 years old at the time of the act, and defendant engaged in vaginal intercourse with the victim. This evidence is sufficient to support convictions of both statutory rape and taking indecent liberties. See State v. Rhodes, 321 N.C. 102, 361 S.E.2d 578 (1987) (holding that convictions for both rape and taking indecent liberties are permissible on the same evidence because each charge contains elements not contained in the other). With this evidence before the jury, it is highly improbable that a reasonable jury would have come to a different conclusion, regardless of defense counsel's errors.
    However, defendant offers four instances of where his trial counsel's actions fell below an objective standard of reasonableness and constituted ineffective assistance of counsel.
    First, counsel objected to the State's motion to join the two charges against defendant by arguing that there was no evidence to support the indecent liberty charge. The trial court allowed the motion after pointing out that the law was that the single act of penetration could support both charges. This is a correct statement of the law as cited above.
    Second, counsel argued that he should be able to use the affirmative defenses of voluntary intoxication and unconsciousness. During a motion in limine by the State, who was trying to prohibit defendant from arguing for jury nullification, the State maintained that consent was not a defense. Counsel for defendant contendedthat he should be able to argue that he was intoxicated and unconscious at the time of the alleged assault. The trial court granted counsel that much. The trial court, however, denied counsel's motion to dismiss on the basis that the victim initiated the sexual contact while defendant was drunk, as voluntary intoxication is not a defense to the crimes charged. Defense counsel apparently considered but did not request instructions on these defenses. On appeal, defendant points out that intoxication is not a defense to forcible rape or statutory sexual offense as intent is inferred from the commission of the act. State v. Boone, 307 N.C. 198, 209-10, 297 S.E.2d 585, 592 (1982), rev'd on other grounds, State v. Richmond, 347 N.C. 412, 495 S.E.2d 677, cert denied, 525 U.S. 843, 142 L. Ed. 2d 288 (1998), cert. denied, 351 N.C. 479, 543 S.E.2d 506 (2000). Likewise, intent is not an element of statutory rape. State v. Murry, 277 N.C. 197, 203, 176 S.E.2d 738, 742 (1970). Further, the defense of unconsciousness, which contemplates involuntary intoxication, was unavailable to defendant as all intoxication in this case was voluntary. See State v. Mercer, 275 N.C. 108, 118, 165 S.E.2d 328, 335-36 (1969), overruled on other grounds, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Williams, 296 N.C. 693, 700-01, 252 S.E.2d 739, 743-44 (1979). Defendant's counsel would have had a better chance to use unconsciousness on the charge of indecent liberties, but as stated above, counsel did not request the instruction. See State v. Connell, 127 N.C. App. 685, 691-92, 493S.E.2d 292, 296 (1997), disc. review denied, 347 N.C. 579, 502 S.E.2d 602 (1998). Thus, counsel was wrong here, too.
    Third, defense counsel conducted a lengthy cross-examination of the State's DNA expert which, according to defendant, only succeeded in further proving that defendant was the father of the victim's child. Defendant contends on appeal that this is because counsel lacked basic understanding of DNA paternity testing.
    Fourth, defense counsel asked the victim questions eliciting from her that she was the one who initiated all the sexual contact, apparently trying to argue consent again, despite being told by the trial court not to do so. Consent is not a defense to the crime of statutory rape. State v. Anthony, 133 N.C. App. 573, 575-78, 516 S.E.2d 195, 196-98, appeal dismissed, disc. review allowed, 351 N.C. 109, 541 S.E.2d 151 (1999), aff'd, 351 N.C. 611, 528 S.E.2d 321 (2000). This fact, plus the fact that he was forbidden from arguing nullification, means that there was no rational basis for counsel to ask these questions and shows his lack of understanding of what was going on.
    Based upon the above, defendant contends it should be evident that counsel did not have the requisite minimal understanding of the law in this area needed to meet the constitutional requirements for effective assistance of counsel.
    The State responds by pointing out that “what witnesses to call, whether and how to conduct cross-examination, what jurors to strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyerafter consultation with his client,” and nothing that has been set forth by defendant on appeal overcomes the presumption that counsel acted in the exercise of reasonable professional judgment. State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979), overruled on other grounds, State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). We agree. Defense counsel had nothing to lose by arguing against the joinder, and the rest of his decisions are discretionary decisions on the part of counsel. It remains that the evidence of guilt in this case was overwhelming.
    Given the difficulty in mounting any defense to the crimes charged and the overwhelming evidence of guilt, it is apparent that defendant cannot show that any different result would have been obtained at trial. His assignments of error are therefore overruled.
    Additionally, defendant, in his brief to this Court, requests that this Court treat his appeal as a motion for appropriate relief. We decline to do so, without prejudice to defendant's rights on the issue of assistance of counsel during the plea bargaining stage. After mandate of the opinion of the Court has issued, defendant may file his motion for appropriate relief with the trial court pursuant to N.C. Gen. Stat. § 15A-1415 (2001).
    No error.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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