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.
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).
*** Converted from WordPerfect ***