State v Reed, (03-698) 06/01/2004

Appeal by defendant from judgment entered 22 September 2000 by Judge Abraham P. Jones in Wake County Superior Court. Heard in the Court of Appeals 3 May 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State.

John T. Hall for defendant-appellant.

ELMORE, Judge.

    Defendant Harry Reed, Jr. was cited for possession and sale of alcoholic beverages without obtaining the required permits on 10 March 2000. Defendant was thereafter convicted in district court, and appealed de novo to the superior court. Upon trial de novo in the superior court, the jury was unable to reach a unanimous verdict and the judge declared a mistrial. Defendant was then retried in the superior court on 19 September 2000. The State's evidence tended to show that on or about 9 March 2000 ABC Agent Charles Stevenson (Agent Stevenson) entered the home of defendant, where the agent purchased beer and “miniature” or “airplane” bottles of liquor. While at defendant's residence, Agent Stevensonconsumed two of the three beers purchased, and observed others purchasing alcoholic beverages. Defendant did not have any permits from the ABC Board which would allow him to sell alcoholic beverages.
    Defendant testified that he was intoxicated and did not recall seeing Agent Stevenson in his home in March 2000. Defendant further testified that he often gave parties and had obtained at least ten permits over the course of a year to buy larger quantities of alcohol. He denied taking any money from Agent Stevenson.
    A jury found defendant guilty as charged, and the trial court placed defendant on supervised probation for thirty-six months. Defendant appeals.
    By his first assignment of error on appeal, defendant argues that the trial court committed plain error in denying his motion to dismiss and by failing to dismiss the charges, ex mero motu, at the close of all of the evidence. We disagree.
    At the outset, we note that petitioner has failed to properly preserve this issue for appellate review. N.C.R. App. P. 10(b)(3) requires that a defendant in a criminal case, who presents evidence, make a motion to dismiss at the close of all evidence to preserve the sufficiency of the evidence question for appellate review. Failure to do so results in waiver of appellate review. Moreover, this Court has previously noted that plain error review is not available to review the sufficiency of the evidence where a defendant has failed to properly preserve the issue under N.C.R.App. P. 10(b)(3). State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995).
    In the instant case, defendant admits that he failed to renew his motion to dismiss after the State presented rebuttal evidence. This matter is, then, not properly before the Court. Further, even if the issue had been preserved, a review of the record shows that the State presented plenary evidence from which the fact- finder could properly find that defendant sold alcoholic beverages without having a permit to do so. This assignment of error is, therefore, summarily overruled.
    By his second assignment of error, defendant argues that the trial court erred by failing to dismiss, ex mero motu, the charge against him since he received ineffective assistance of counsel. Defendant contends that counsel's representation was ineffective in that counsel (1) failed to renew his motion to dismiss based upon the insufficiency of the evidence after the State introduced rebuttal evidence, and (2) failed to object to, move to strike or otherwise seek limiting instructions as to certain testimony of ABC Agent Ricky Barbour. Again, we disagree.
    This Court has stated that the preferable vehicle for consideration of an ineffective assistance of counsel claim is a post-conviction motion for appropriate relief rather than a direct appeal to the appellate division. State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002). This is so because many ineffective assistance of counsel claims are of such a nature that “in order to
defend against [them], . . . the State must rely on information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor.” Id. at 554, 557 S.E.2d at 547. However, where, as in the present case, the cold record reveals that no further investigation is required to develop and argue an ineffective assistance of counsel claim, this Court will decide such a claim on the merits. State v. Long, 354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001).
    To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel made errors and (2) counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). The defendant is not entitled to relief unless the record shows a reasonable probability exists that a different verdict would have been reached in the absence of counsel's deficient performance. Id. at 563, 324 S.E.2d at 249. There exists a strong presumption that counsel's conduct falls within the range of competent assistance. State v. Mason, 337 N.C. 165, 177, 446 S.E.2d 58, 65 (1994).
    In the case sub judice, defendant cannot meet the two-prong test set out in Braswell, supra. The record shows that trial counsel had twice moved to dismiss the charge, at the close of the State's evidence and then at the close of defendant's evidence. The trial court denied both motions. The only evidence adduced during the State's examination of Agent Stevenson on rebuttal was not in any way favorable to defendant. Accordingly, there is noreasonable probability that the trial court would have granted defendant's motion to dismiss had defense counsel renewed the motion to dismiss at the close of all the evidence. As previously stated, the State presented sufficient evidence to show that defendant was the perpetrator of the offense charged. Therefore, trial counsel's failure to renew his motion to dismiss at the close of all the evidence did not prejudice defendant.
    As to defendant's claim that counsel was ineffective in failing to challenge certain testimony of Agent Ricky Barbour, we note that the transcript page numbers, to which defendant directs the Court's attention following his assignment of error, do not contain any of Agent Barbour's testimony as required by N.C.R. 10(c)(1). Similarly, counsel has not provided any transcript page numbers to correspond with the argument made in his brief regarding the alleged contradictory and conclusory testimony of Agent Stevenson, in violation of N.C.R. 10(c)(1). Defendant has then not properly preserved his ineffective assistance of counsel claim for review in that regard. In the interest of justice, however, we have reviewed the matter and conclude that defendant's claim as to counsel's failure to challenge the subject testimony also fails.
    Counsel's failure to act in challenging the testimony and evidence here clearly involve matters of trial strategy employed by defendant's trial counsel, which are accorded great deference by this Court. These matters do not constitute the error necessary to prevail on an ineffective assistance of counsel claim. See State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986)(“Ineffectiveassistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.”).
    In sum, we conclude that defendant did not receive ineffective assistance of counsel, and thus, the trial court did not err in ex mero motu dismissing the charge against counsel based upon that claim. This assignment of error is also overruled.
    Having so concluded, we hold that defendant received a fair trial free from prejudicial error.
    No error.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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