Appeal by defendant from judgment dated 29 April 2003 by Judge
A. Moses Massey in Moore County Superior Court. Heard in the Court
of Appeals 28 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General Sue
Y. Little, for the State.
Bruce T. Cunningham, Jr. for defendant-appellant.
BRYANT, Judge.
Joseph Aloysius Dyson, II (defendant) appeals a judgment dated
29 April 2003 entered consistent with a jury verdict finding him
guilty of first-degree sexual offense.
The State's evidence at trial tended to show that
eight-year-old A.H.
(See footnote 1)
resided with her mother and siblings in South
Carolina. During the summer of 2002, A.H. went to stay with her
aunt in Pinebluff, North Carolina. Defendant occasionally spent
the night at the home of A.H.'s aunt and usually slept in the
living room. One night while A.H. slept in her aunt's room,
defendant entered, awakened A.H., and “made [her] suck his thing.”
A.H.'s sisters, infant cousin and aunt remained asleep during the
incident. The next day, A.H. telephoned her mother and said that
“Joseph had been messing with her.” When A.H.'s mother asked what
she meant, A.H. replied that “he made [her] suck his thing.” Several days later A.H. was interviewed by Tanyetta Felder
(Felder), a Child Protective Services worker with Moore County
Department of Social Services (DSS). A.H. told Felder defendant
had “touched her private parts with his hand and then made her suck
his thing,” that it was defendant's “private part that he made her
suck.”
The State also presented “other crimes” evidence which tended
to show that more than 10 years previously, in October 1991, Kevin
B. Motter (Detective Motter), with the Spring Lake Police
Department, investigated an incident involving defendant. He took
a statement from defendant who said that on 23 October 1991 he was
in a park with friends when it began to rain and that he and a boy,
who was nine or ten years old at the time, “ran to one of the
dugouts from the baseball diamond.” While sitting in the dugout,
defendant “pulled [the boy's] pants down and began sucking his
penis.”
Defendant presented no evidence at trial.
________________________
On appeal, defendant raises four issues of whether the trial
court erred by: (I) admitting testimony of a child protective
services worker regarding statements made to her by the child
victim; (II) admitting opinion testimony of a witness who had not
been qualified as an expert; (III) not instructing the jury as to
indecent liberties with a minor; and (IV) admitting testimony
concerning a prior sexual act committed by defendant. Interspersed
in some of defendant's arguments are claims of ineffective
assistance of counsel, which are addressed in the last section ofthis opinion.
I
[1] Defendant first argues it was plain error for the trial
court to admit testimony from Felder regarding statements made to
her by the child victim, A.H. We note that because defendant
failed to object to the admission of this testimony, we must apply
plain error review.
“Plain error analysis is applied when our review of the entire
record reveals . . . a fundamental error so prejudicial that
justice cannot have been done.”
State v. Haselden, 357 N.C. 1, 13,
577 S.E.2d 594, 602-03 (2003). “To prevail, the 'defendant must
convince this Court not only that there was error, but that absent
the error the jury probably would have reached a different
result.'”
Id. (citation omitted). Plain error review is to be
applied only to exceptional cases.
State v. Walker, 316 N.C. 33,
39, 340 S.E.2d 80, 83 (1986).
In the instant case, A.H. testified at trial that defendant
had her perform oral sex on him on one occasion. Felder testified
that A.H. told her that defendant “touched her private parts with
his hand and then he made her suck his thing.” Felder further
stated A.H. told her “it was more than one time.” Defendant
contends Felder's statements did not corroborate A.H.'s testimony
at trial, and it was plain error for the trial court to have
allowed such testimony.
Corroboration is “[t]he process of persuading the trier of the
facts that a witness is credible.” 1 Henry Brandis, Jr.,
Brandis
on North Carolina Evidence § 49 (3d ed. 1988). Our Supreme Courthas defined “corroborate” as “to strengthen; to add weight or
credibility to a thing by additional and confirming facts or
evidence.”
State v. Higginbottom, 312 N.C. 760, 769, 324 S.E.2d
834, 840 (1985);
see State v. Aguallo, 322 N.C. 818, 825, 370
S.E.2d 676, 679 (1988) (concluding testimony was corroborative if
it tended to add weight or credibility to earlier testimony of
witness);
State v. Riddle, 316 N.C. 152, 160, 340 S.E.2d 75, 79
(1986) (holding the trial court did not err in admitting testimony
of protective services worker as corroborating evidence of
testimony of victim).
In
State v. Lloyd, our Supreme Court further reiterated the
principle that testimony which is offered to corroborate the
testimony of another witness and which substantially does
corroborate the testimony is not rendered incompetent because there
is some variation. 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001);
see also State v. Beane, 146 N.C. App. 220, 232, 552 S.E.2d 193,
201 (2001) (corroborative evidence need not mirror the testimony it
seeks to corroborate, and may include new or additional information
as long as the new information tends to strengthen or add
credibility to the testimony it corroborates).
While Felder's testimony went beyond the single act of oral
sex to which A.H. testified, Felder's testimony did not depart from
A.H.'s testimony that oral sex occurred between defendant and A.H.
Therefore, while there was some variation, Felder's testimony was
nonetheless corroborative of A.H.'s testimony and properly admitted
for that purpose.
Finally, defendant is unable to show error such that the juryprobably would have reached a different result absent the alleged
error. Defendant was indicted, tried, and convicted of one count
of first-degree sexual offense. A.H. testified defendant “made
[her] suck his thing,” and A.H.'s mother testified A.H. told her
defendant “made [A.H.] suck his thing.” Based on this evidence,
defendant is unable to show plain error in the admission of
Felder's testimony. This assignment of error is overruled.
II
[2] Defendant next argues the trial court erred in admitting
hearsay and opinion testimony by a witness not qualified as an
expert. Again, we note defendant did not object at trial to the
testimony he now challenges, and we therefore apply plain error
analysis.
“Hearsay is defined as a statement, other than the one made by
the declarant while testifying at trial or hearing offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2003). “[W]hen admitted without
objection, otherwise inadmissible hearsay may be considered with
all the other evidence and given such evidentiary value as it may
possess.” 1 Henry Brandis, Jr.,
Brandis on North Carolina Evidence
§ 139 (3d ed. 1988).
The following statement is the first of two made by Felder
that defendant challenges as inadmissible opinion hearsay:
When I received the report and information
from - [w]hat [c]ounty is this? North
Carolina. Let me make sure I give you the
right information that - of sexual abuse
allegations against [A.H.] by Mr. Joseph
Dyson. He was the perpetrator.
When Felder stated, “[h]e was the perpetrator,” she was referringto defendant as the alleged perpetrator identified in the DSS
report in order to differentiate this case from her other Moore
County DSS cases. Felder was not testifying as an expert witness,
nor did she state an opinion that defendant was in fact the
perpetrator.
Defendant also contends Felder was allowed to offer opinion
testimony as to recommended treatment for A.H., without being
qualified as an expert witness. Felder stated:
They said that that was normal, you know, for
[A.H.] to have, you know, some anger. And
what they did with their recommendations, they
recommend that, you know, she undergo some
type of therapy with mental health to deal
with the sexual abuse.
This testimony is too vague to amount to opinion testimony. The
transcript reveals “they” refers to the facility that performed
A.H.'s forensic evaluation. Defendant did not object to this
testimony at trial, and on appeal, fails to demonstrate plain error
in the admission of Felder's statement as to A.H.'s forensic
evaluation. Moreover, we find neither of Felder's statements now
challenged by defendant would have prejudiced the jury and “tilted
the scales” in favor of conviction.
State v. Short, 322 N.C. 783,
790, 370 S.E.2d 351, 355 (1988). This assignment of error is
overruled.
III
[3] Defendant next argues the trial court erred by not
instructing the jury as to indecent liberties with a minor.
When defendant requested the trial court to instruct the jury
on indecent liberties with a minor, the trial court refused to do
so stating, COURT: Crime against nature and indecent
liberties are not lesser-included
offenses of first- or second-degree
sexual offenses, 303 North Carolina
507 and 309 North Carolina
224. . . . It would seem . . . in
this case there's no conflicting
evidence about the . . . second
element, the age of the child.
There's no conflicting evidence
about the third element, the age of
the victim. And it would seem that
there's no - it's an issue of
credibility as to whether fellatio
occurred or didn't occur . . . the
request to instruct on a lesser-
included offense of taking indecent
liberties is denied. Any other
requests?
DEFENSE: No, Your Honor.
Our courts have clearly held that indecent liberties with a
minor is not a lesser-included offense of a first-degree sex
offense.
State v. Williams, 303 N.C. 507, 513, 279 S.E.2d 592, 596
(1981);
State v. Ludlum, 303 N.C. 666, 674, 281 S.E.2d 159, 164
(1981);
State v. Ramseur, 112 N.C. App. 429, 436, 435 S.E.2d 837,
841 (1993).
In determining when a lesser-included offense instruction is
required, our Supreme Court held in
State v. Millsaps, 356 N.C.
556, 572 S.E.2d 767 (2002) that:
Under North Carolina and federal law a lesser
included offense instruction is required if
the evidence “would permit a jury rationally
to find [defendant] guilty of the lesser
offense and acquit him of the greater.”
State
v. Strickland, 307 N.C. 274, 286, 298 S.E.2d
645, 654, quoting
Beck v. Alabama, 447 U.S.
625, 635, 65 L. Ed. 2d 392, 401, 100 S. Ct.
2382 (1980). The test is whether there “is
the presence, or absence, of any evidence in
the record which might convince a rational
trier of fact to convict the defendant of a
less grievous offense.”
State v. Wright, 304
N.C. 349, 351, 283 S.E.2d 502, 503 (1981).Where the State's evidence is positive as to
each element of the offense charged and there
is no contradictory evidence relating to any
element, no instruction on a lesser included
offense is required.
State v. Peacock, 313
N.C. 554, 330 S.E.2d 190 (1985).
Id. at 562, 572 S.E.2d at 772.
The trial court in the instant case examined the lack of
conflict in the evidence as to all but one element (fellatio) in
determining whether or not to instruct the jury on indecent
liberties with a minor. Defendant argues that some of the State's
evidence supported a lesser charge of indecent liberties; however
the State's evidence supported each and every element of a
first-degree sex offense without contradiction. Because neither
the victim's nor defendant's age were in dispute, the only question
for the jury to decide was whether defendant engaged in fellatio,
a first-degree sexual offense, with the victim. Because indecent
liberties with a minor is not a lesser-included offense of first-
degree sexual offense and the State's evidence supported each
element of first-degree sex offense, the trial court did not err by
failing to instruct the jury on indecent liberties with a minor.
This assignment of error is overruled.
IV
[4] Defendant next argues the trial court erred in admitting
the testimony of Detective Motter concerning a prior sexual act
committed by defendant.
The State called Detective Motter as a witness on voir dire
concerning a 1991 signed statement defendant made to the police
where defendant, then seventeen years old, admitted performing oral
sex on a nine-year-old boy. The State introduced evidence of theprior sexual act to show defendant's intent, motive, and common
plan, since both acts involved oral sex with young children, eight
and nine years old. Defendant objected to the admission of
Detective Motter's statement and asserted the prejudicial effect of
the evidence outweighed its probative value. The trial court
overruled defendant's objection citing North Carolina Rules of
Evidence 404(b) and 403, and summarized for the record:
I just wish to make it clear that the court
applied . . . the balancing test of Rule 403
and determines, based on the fact that the
offense that occurred previously involved a
child of the age of eight or nine, that the
offense involved fellatio, that the offense
involved the defendant seeking out -- being
alone with the child, conscious of his
presence, and other similarities, and applying
the balancing test required by 403 has
determined that the evidence is more probative
than prejudicial, that the evidence is not
unfairly prejudicial, and therefore ruled as
the [c]ourt has ruled.
While the period of elapsed time since the prior sexual acts
is an important part of the Rule 403 balancing process, and the
passage of time may “slowly erode commonalities” between the prior
acts and the acts currently charged, the lapse of time in this case
does not sufficiently diminish the similarities between the acts.
State v. Frazier, 121 N.C. App. 1, 11, 464 S.E.2d 490, 495 (1995);
State v. Blackwell, 133 N.C. App. 31, 36, 514 S.E.2d 116, 120
(evidence of prior similar sex offenses which occurred ten and
seven years earlier were not too remote in time),
cert. denied, 350
N.C. 595, 537 S.E.2d 483 (1999);
see also State v. Roberson, 93
N.C. App. 83, 85, 376 S.E.2d 486, 487-88 (1989) (involving nearly
a five-year lapse of time between sexual acts). Furthermore,
“remoteness is less significant when the prior conduct is used toshow intent, motive, knowledge, or lack of accident.”
State v.
Hipps, 348 N.C. 377, 405, 501 S.E.2d 625, 642 (1998).
In the instant case, eight-year-old A.H. testified defendant
made her perform oral sex on him in a bedroom where others were
asleep. Detective Motter testified defendant admitted to engaging
in oral sex with a nine-year-old child victim in 1991 when they
were alone. While these events occurred eleven years apart,
Detective Motter's testimony was introduced to show defendant's
motive and opportunity in engaging in oral sex with A.H. Because
the record clearly indicates the trial court applied the
appropriate balancing test of N.C. Gen. Stat. § 8C-1, Rule 403 in
deciding whether to admit Officer Motter's testimony, and because
the probative value outweighed the prejudicial effect, we conclude
the trial court did not abuse its discretion by admitting the
evidence of defendant's prior sexual act.
See State v. Beckham,
145 N.C. App. 119, 124, 550 S.E.2d 231, 235 (2001) (acts of
masturbation in front of a male and female child admissible in case
alleging rape of a female child). This assignment of error is
overruled.
Ineffective Assistance of Counsel
[5] Finally we note that in several of defendant's forgoing
arguments he contends ineffective assistance of counsel prejudiced
his right to a fair trial. Defendant alleges his counsel's failure
to object to certain testimony and request a jury instruction on a
lesser-included offense was erroneous and amounted to ineffective
assistance of counsel.
An error by counsel, even if professionally
unreasonable, does not warrant setting asidethe judgment of a criminal proceeding if the
error had no effect on the judgment. The
purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the
assistance necessary to justify reliance on
the outcome of the proceeding. Accordingly,
any deficiencies in counsel's performance must
be prejudicial to the defense in order to
constitute ineffective assistance under the
United States Constitution.
Strickland v. Washington, 466 U.S. 668, 691, 80 L. Ed. 2d 674, 696
(1984).
A defendant claiming a denial of the right to effective
assistance of counsel is held to a familiar two-part standard:
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.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985).
Mere allegations surrounding matters of trial tactics, without
more, are not sufficient to meet the test set forth in
Strickland.
State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
“The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
State v. Quick, 152 N.C. App. 220, 566 S.E.2d 735 (2002).
We have already determined based on plain error review that
the trial court did not err in admitting the challenged testimony
of child protective services worker Felder. Therefore, defendant'sright to a fair trial could not have been prejudiced by his
counsel's failure to object to Felder's testimony.
Further, as previously discussed, the law is clear that
indecent liberties with a minor is not a lesser-included offense of
a first-degree sexual offense.
Williams, 303 N.C. 507, 279 S.E.2d
592. However, contrary to defendant's contentions, the record
reveals that defense counsel
did request a jury instruction as to
indecent liberties with a minor, which the trial court denied.
Defendant has failed to meet his burden under
Strickland with
respect to his claim of ineffective assistance of counsel.
Accordingly, we find no error.
No error.
Judges ELMORE and GEER concur.
Footnote: 1