An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1618


Filed: 18 November 2003


v .                         Craven County
                            Nos. 01 CRS 003869
JAMES ALBERT BRYANT, JR.             00 CRS 51007

    Appeal by defendant from judgment entered 20 August 2002 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 27 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State.

    Kurtz & Blum, P.L.L.C., by Howard A. Kurtz, for defendant- appellant.

    EAGLES, Chief Judge.

    Defendant James Albert Bryant, Jr. appeals from convictions for one count of taking indecent liberties with a child and one count of statutory rape. Defendant raises two arguments on appeal: (1) that defendant was deprived of his constitutional right to the effective assistance of counsel; and (2) that the trial court erred by allowing the admission of defendant's statement against him. After careful examination of the record, transcript and briefs, we find no error.
    The evidence tends to show the following. Defendant lived in James City in June 2000. Defendant lived in a trailer with his wife, her two daughters, Selena and Monique, and Selena's infantdaughter. Selena was 22 at the time and Monique was 13. Selena stated that she and a few other members of the family had become suspicious of defendant's behavior around Monique at that time.
    On 3 June 2000, Selena returned shortly after midnight. Selena decided to sneak into the trailer to see if she could catch defendant doing something improper with Monique. Selena parked her car on the side of the street instead of pulling it into the yard and approached the house as quietly as possible. When she began to unlock the front door with her keys, a dog inside the trailer started barking. Selena opened the door quickly and observed defendant running out of the front room with a blanket covering the lower half of his body. Selena also saw Monique running from the living room, in the opposite direction as defendant, wearing only a tee shirt, with no underwear or shorts. Selena confronted Monique, asking what had happened when Selena arrived, but Monique denied that any sexual contact occurred. Neither defendant nor Monique would give Selena her mother's telephone number at work. On the afternoon of the same day, Selena again asked Monique what Monique and defendant had been doing when Selena entered the trailer. Monique replied that “this was the first time” and “it didn't go all the way in.” Selena contacted the police on the following Monday and gave a statement to Investigator Strawbridge.
    Monique testified that on the evening of 2 June 2000, she and defendant were at home alone. Monique found a pornographic website on the computer at defendant's request. After Monique found the website for defendant, he began rubbing her breast and touched hervagina. He stood her up and removed her underwear and shorts. Monique laid down and defendant briefly penetrated her vagina with his penis. Monique stated that she was unsure how far defendant penetrated her, because she immediately moved when she felt the penetration. At this point, Selena arrived and interrupted her and defendant. Monique initially denied that she and defendant had sexual contact on 2 June. However, Monique testified that she and defendant had engaged in sexual behavior before 2 June 2000. Monique would usually mix an alcoholic drink for defendant, find a pornographic website at defendant's request and they would “fool around.” Monique stated that on several occasions after she found a website, defendant would ask her to fondle his penis until he ejaculated. In addition, Monique told the investigator that defendant had performed oral sex on her and had inserted his finger in her vagina several times before 2 June 2000. Monique told her mother and sister that she and defendant had sexual intercourse on 2 June 2000. Monique later gave a statement to Investigator Strawbridge.
    Investigator Ike Strawbridge collected the statements from Monique and Selena. He went to interview defendant on 19 June 2000. Strawbridge asked defendant to come to his office. Defendant rode in the front passenger seat of Strawbridge's car and was not handcuffed. Strawbridge talked to defendant in his office rather than in the interview room. Strawbridge told defendant that he would take defendant back to defendant's car when they finished talking. Strawbridge did not place defendant under arrest or readdefendant his Miranda rights. Defendant and Strawbridge knew each other because Strawbridge had arrested defendant several times before. Defendant indicated that he had three years of college education.
    Strawbridge asked defendant to tell Strawbridge defendant's side of the story. Defendant denied that anything had happened between him and Monique. When Strawbridge asked defendant to tell the truth, defendant responded by giving Strawbridge a statement. Defendant admitted that he had taken indecent liberties with Monique, but denied that he ever penetrated Monique with his penis. Defendant stated that Monique was the aggressor in all of the sexual contact they had and that he never forced any contact with her. Defendant described an incident approximately six months before 2 June 2000, when defendant caught Monique in her mother's car with a boy after midnight. Defendant stated that he ran the boy off and told Monique's mother about her behavior. Defendant stated that Monique began “messing with” him about two or three months after the car encounter. Defendant believed that Monique initiated the sexual encounter on 2 June 2000 to get revenge or to keep defendant from telling her mother about the earlier incident with the boy in the car. Defendant also believed that Selena had encouraged Monique to get defendant in trouble.
    Defendant signed his statement and Investigator Strawbridge returned defendant to where he had been picked up. Strawbridge issued an arrest warrant for defendant approximately ten days later. The jury found defendant guilty of indecent liberties witha minor and statutory rape. The trial court sentenced defendant to 340 to 417 months of imprisonment. Defendant appeals.
    Defendant's first argument on appeal is that he did not receive the effective assistance of counsel. Defendant contends that his trial attorney offered a defense of consent to the charges against defendant. Defendant argues that consent is not a viable defense to the charges of statutory rape and indecent liberties with a minor. Therefore, defense counsel's use of this argument as his sole defense denied defendant the effective assistance of counsel at trial. We disagree that defense counsel's conduct rises to the level of ineffective assistance of counsel.
    A criminal defendant is guaranteed the effective assistance of counsel during his trial by the United States and North Carolina Constitutions. See U.S. Const. amend. VI and N.C. Const. art. I, § 23. The United States Supreme Court has outlined the standard for determining whether a defendant benefitted from effective assistance of counsel as follows:
        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 (1984). The Strickland test was adopted by the North CarolinaSupreme Court in 1985. See State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).
    Here, defendant contends his trial counsel's choice of an invalid defense constituted deficient performance that prejudiced his defense. Defendant argues that his trial counsel's only argument on defendant's behalf against the statutory rape charge was the initiation of sexual activity by the child involved. It is well-settled that consent is not a defense to statutory rape. See State v. Anthony, 351 N.C. 611, 528 S.E.2d 321 (2000). Similarly, initiation of the sexual encounter by the child has not been recognized as a defense to a charge of statutory rape. See G.S. § 14-27.7A(a)(2001).
    Defendant argues that the following exchange during trial counsel's cross-examination of Investigator Strawbridge constitutes ineffective assistance of counsel:
        Q: Now, from [defendant's] statement, would it not appear that Monique was the aggressor in these episodes?

        A: Counselor, I can't imagine a twelve-year- old being an aggressor with a fifty-some year old, but that's his statement.

        . . . .

        Q: Well, if he was laying on the sofa, minding his own business and she comes over and starts playing with him, isn't she the aggressor in that instance?

        . . . .

        Q: Well, you don't know who's telling the truth, do you?

        A: That's why we're in court, sir.
        . . . .

        Q: Also, she testified, did she not, that he got her to go on the internet and find these pornographic films, right?

        A: That he got her to, yes, sir. That's what her testimony was, as I recall it.

        Q: In his statement he caught her doing it, right?

        . . . .

        Q: And [defendant] also told you about that incident in the car with the boy, didn't he?

        A: He said that he had caught her in a car with a boy, yes, sir.

        Q: About six months earlier, right?

        A: About six months ago, yes, sir.

        Q: And then it was after, about three months after that that she started to be an aggressor with him, right? Doesn't his statement say that?

        . . . .

        Q: Doesn't that tell you that she tried to get [defendant] not to tell her mother about catching her in the car with the boy? She tried to set him up?

However, upon closer examination, it appears that defendant's trial counsel was attempting to limit or destroy the complaining witness's credibility. Trial counsel's line of questioning Strawbridge, in addition to his cross-examination of the complaining witness regarding her encounter with the unidentified boy, indicates that trial counsel was attempting to establish a motive for the complaining witness to lie about defendant's actions towards her. The complaining witness's testimony was the onlyevidence presented that established the elements of the statutory rape charge. If the jury found her testimony to be lacking in credibility, the jury could conclude that the State had failed to meet its burden of proof for statutory rape. Therefore, this line of questioning by trial counsel was not deficient representation because, if accepted by the jury, it presented a valid defense. Trial defense counsel is given wide latitude to determine its trial strategies, and in particular, what theory of defense it will attempt to establish. See State v. Jaynes, 353 N.C. 534, 548, 549 S.E.2d 179, 191 (2001), cert. denied, 535 U.S. 934, 152 L. Ed. 2d 220 (2002); State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986). Because defendant has failed to prove that his counsel's performance was deficient according to the first part of the Strickland test, we do not need to examine the second part of the test regarding whether the counsel's deficient performance prejudiced the defense. We hold that defendant received the effective assistance of counsel at his trial. This assignment of error is overruled.
    Defendant also assigns error to the trial court's denial of his motion to suppress defendant's statement. Defendant argues that this statement was coerced. Defendant contends that the statement was given while defendant was in custody and without a Miranda warning from Investigator Strawbridge. Defendant contends that this statement should have been suppressed because it was obtained in a manner that violated his constitutional rights. We disagree.     Here, the trial court conducted a voir dire hearing on whether defendant's statement should be suppressed. The trial court made findings of fact regarding the circumstances surrounding defendant's statement. The court then concluded that the statement was given voluntarily and that defendant's constitutional rights were not violated before denying the motion to suppress.
    On appeal, “the standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact 'are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)(quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 661 (2001)). However, “the trial court's determination of whether an interrogation is conducted while a person is in custody involves reaching a conclusion of law, which is fully reviewable on appeal.” Buchanan, 353 N.C. at 336, 543 S.E.2d at 826 (citing State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737 (1992)). In order to review a trial court's conclusion regarding whether a defendant was in custody, “an appellate court must examine all the circumstances surrounding the interrogation; but the definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.” State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997); see also Buchanan, 353 N.C. 332, 543 S.E.2d 823; Brewington, 352 N.C. 489, 532 S.E.2d 496.     Here, neither party asserts that a formal arrest had occurred when defendant gave his statement. Therefore, we must analyze the circumstances surrounding defendant's conversation with Investigator Strawbridge in order to determine whether there was a restraint on defendant's freedom of movement of the degree associated with a formal arrest. The trial court found that defendant knew Investigator Strawbridge, who had arrested defendant several times. Strawbridge told defendant that he would return defendant when they were finished talking. Defendant rode to Strawbridge's office in the police vehicle, but rode in the front seat and did not wear handcuffs during the trip. Defendant spent approximately one hour speaking with Strawbridge, including the trips riding to and from the police station. Strawbridge told defendant that defendant was a suspect before defendant gave his statement. These circumstances, in combination, do not indicate that defendant's movement was restrained to the degree associated with an arrest. We hold that defendant was not in custody when he was interrogated and was not entitled to a Miranda warning by Strawbridge.
    In addition, defendant argues that his statement was not voluntary. North Carolina has adopted the federal test for determining voluntariness of a statement. See State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994); State v. Jackson, 308 N.C. 549, 581, 304 S.E.2d 134, 152 (1983). A statement is voluntarily given “[i]f, looking to the totality of the circumstances, the confession is the 'product of an essentiallyfree and unconstrained choice by its maker.'” Hardy, 339 N.C. at 222, 451 S.E.2d at 608 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 36 L. Ed. 2d 854, 862 (1973)). Some of the factors to be considered when determining whether a statement was voluntary are:
        whether defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and the mental condition of the declarant.

Hardy, 339 N.C. at 222, 451 S.E.2d at 608. Again, “[t]he trial court's findings of fact are binding if supported by competent evidence in the record.” Hardy, 339 N.C. at 222, 451 S.E.2d at 608. However, the conclusion that defendant's statement was voluntary is fully reviewable as a conclusion of law on appeal. Id.
    Here, the trial court made findings regarding several of the factors outlined in Hardy. The trial court found that defendant was not in custody and was not given Miranda warnings. Defendant's interview lasted approximately one hour. The trial court made no findings related to whether defendant was held incommunicado, threatened or promised anything in order to force defendant to make a statement. However, the court found that defendant had been arrested several times, which indicates that defendant was familiar with the criminal justice system. Also, defendant was found to have completed three years of college education and found to be educated and able to speak and write in English. Viewing thecircumstances in their totality, we hold that the trial court's conclusion that defendant voluntarily gave his statement was not erroneous. Therefore, this assignment of error is overruled.
    For the reasons stated above, we find no error.
    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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