STATE OF NORTH CAROLINA
v
.
Franklin County
No. 01 CRS 51729-30;
02 CRS 46-57
VERNON RAY TABOR
Roy Cooper, Attorney General, by Jennie Wilhelm Mau, Assistant
Attorney General, for the State.
Miles & Montgomery, by Lisa Miles, for defendant-appellant.
STEELMAN, Judge.
Defendant was tried at the 1 April 2002 session of Franklin
County Superior Court on charges of first degree sex offense and
attempted rape of A.C. (01 CRS 51728), four counts of taking
indecent liberties with A.C. (02 CRS 51746 to 51749), two counts
each of first degree sex offense and attempted rape of K.G. (01 CRS
51729 and 51730), and eight counts of taking indecent liberties
with K.G. (02 CRS 51750 to 51757). At the close of the State's
evidence, the trial court dismissed the charges of first degree sex
offense in case numbers 01 CRS 51728 and 51730.
On 4 April 2002, the jury found defendant not guilty of
attempted rape in case number 01 CRS 51729. The jury convicted
defendant of all other charges. The trial court consolidated for judgment the two counts of 01
CRS 51729 (first degree sexual offense and attempted rape) and
sentenced defendant to an active term of imprisonment of 192 months
to 240 months. The court also consolidated for judgment the
charges in 01 CRS 51730 and 02 CRS 51746 to 51757 (attempted rape
and twelve counts of indecent liberties) and sentenced defendant to
an active term of imprisonment of 125 months to 159 months. The
two sentences were ordered to be served consecutively. Defendant
appeals. The relevant facts of this matter will be discussed in
the context of defendant's assignments of error.
In his first assignment of error, defendant argues the trial
court erred in failing to provide defendant with exculpatory
evidence contained in records of the Franklin County Department of
Social Services (DSS). We disagree.
A defendant charged with sexual abuse of a minor has a
constitutional right of in camera review by the trial judge of all
the records of the agency charged with investigating allegations of
child abuse pertaining to the prosecuting witness. State v.
McGill, 141 N.C. App. 98, 101, 539 S.E.2d 351, 355 (2000). If the
trial court determines that the records contain information
favorable to the accused and material to his guilt or punishment,
the pertinent records must be turned over to the defendant. Id.
If the trial court denies the defendant's request for the evidence,
the evidence should be sealed and “placed in the record for
appellate review.” Id. (quoting State v. Hardy, 293 N.C. 105, 128,
235 S.E.2d 828, 842 (1977)). On appeal, this Court must examine the sealed records to
determine if they contain information that is (1) favorable to the
defendant and (2) material to either his guilt or punishment.
McGill, 141 N.C. App. at 101, 539 S.E.2d at 355. “Favorable”
evidence includes evidence which tends to exculpate the defendant
and evidence which adversely affects the credibility of the State's
witnesses. Id. at 102. Evidence is “material” if there is a
“reasonable probability” that the result of the proceeding would
have been different had the evidence been disclosed to the
defendant. Id. at 103, 539 S.E.2d at 356 (quoting United States v.
Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494 (1985). If this
Court finds that the sealed records contain evidence which is both
favorable and material, then the defendant was constitutionally
entitled to disclosure of that evidence. McGill, 141 N.C. App. at
102, 539 S.E.2d at 356. However, the defendant is only entitled to
a new trial if the failure to disclose favorable and material
evidence was prejudicial. Id. at 103.
In this case, defendant moved for an in camera review of DSS
records on complainant A.C. The court conducted an in camera
review of the records, and concluded that there was “nothing in the
file which was material, exculpatory, or relevant to this case.”
The records were sealed for appellate review. Defendant contends
the records contained information that was both favorable and
material to his case.
Our review of the records indicates that the evidence in the
sealed records was not material. There is evidence of prioraccusations of sexual abuse made by A.C., as well as evidence that
A.C. was previously diagnosed with a sexually transmitted disease.
Assuming arguendo that this evidence was favorable to defendant,
and that it was admissible, it was not material to the case. Prior
to trial, defendant was provided with medical records which
included the diagnosis of the sexually transmitted disease and
information concerning prior allegations by A.C. that she had been
sexually abused by persons other than defendant. Defendant chose
not to pursue either of these lines of inquiry at trial, nor does
he appeal any rulings of the trial judge denying him the right to
pursue these matters. Even assuming that this evidence was
improperly withheld from defendant, and that this prevented
defendant from pursuing these lines of inquiry, the withheld
evidence was not material under Thompson and Bagley. Two girls, not
just A.C., testified to the multiple crimes of the defendant. The
defendant gave a statement to the investigating officers that the
girls were not lying, and that “I may have told these little girls
that I was too big to go inside of them. This is embarrassing. At
the time it was fun but now it's embarrassing.” Considering the
ample evidence of defendant's guilt presented at trial, including
defendant's confession, there is no “reasonable probability” that
there would have been a different result in the case if the sealed
records had been disclosed to defendant. See McGill, 141 N.C. App.
at 103, 539 S.E.2d at 356. This assignment of error is without
merit. In his second assignment of error, defendant argues the trial
court erred in denying his motion to dismiss eight of the
indictments charging him with taking indecent liberties with a
child and his motion to dismiss at the close of all the evidence.
We disagree.
Defendant argues that his motion to dismiss eight of the
twelve indictments for taking indecent liberties with a child
should have been granted because the indictments improperly charged
defendant with a single offense in multiple indictments, thereby
violating his constitutional right to be free of double jeopardy.
The constitutions of the United States and North Carolina protect
against multiple punishments for the same offense. State v.
Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), disc. rev.
denied, 353 N.C. 396, 547 S.E.2d 427 (2001). However, distinct
repetitions of prohibited acts may be punished as separate crimes
without offending the double jeopardy clause. See Blockburger v.
United States, 284 U.S. 299, 302, 76 L. Ed. 2d 306, 308 (1932).
Indictments need not be “very detailed,” and thus it is often more
useful to examine the facts underlying the indictments than the
indictments themselves. State v. Rambert, 341 N.C. 173, 176, 459
S.E.2d 510, 513 (1995).
N.C. Gen. Stat. § 14-202.1(a)(1) states:
A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he . . . [w]illfully
takes or attempts to take any immoral,
improper, or indecent liberties with any child
of either sex under the age of 16 years forthe purpose of arousing or gratifying sexual
desire . . . .
For jury verdict unanimity purposes, our Supreme Court has held
that a defendant's purpose for taking an indecent liberty is the
gravamen of the offense, and that the particular act performed is
immaterial. State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177,
180 (1990). The Supreme Court in Hartness arrived at this
conclusion by analogizing N.C. Gen. Stat. § 14-202.1(a)(1)(the
indecent liberty statute) to N.C. Gen. Stat. § 14-27.4, the statute
relating to first degree sexual offense. Thus, cases and reasoning
pertaining to first degree sexual offenses are applicable to the
instant case.
The defendant relies on State v. Petty, 132 N.C. App. 453,
463, 512 S.E.2d 428, 435 (1999), in which this Court stated: “We
note that our Supreme Court's determination that first-degree
sexual offense is a single wrong for unanimity purposes requires us
to conclude that charging a defendant with a separate count of
first-degree sexual offense for each alternative sexual act
performed in a single transaction would result in a multiplicious
indictment.” However, the Petty Court went on to state: “If the
defendant engages in alternative sexual acts in separate
transactions, however, each separate transaction may properly form
the basis for charging the defendant with a separate count of
first-degree sexual offense.” Id.(emphasis added). The Court in
Petty pointed out that although the defendant may commit the same
acts against the same victim within a relatively short time span,
North Carolina Courts have recognized these may be separateoffenses. Id. (citing State v. Dudley, 319 N.C. 656, 356 S.E.2d 361
(1987) (When the defendant raped the first victim, attempted to
rape a second, then raped the first victim again, charging the
defendant with 2 counts of rape for the first victim was proper),
and State v. Small, 31 N.C. App. 556, 558, 230 S.E.2d 425, 427
(1976) (the defendant was properly charged with two counts of rape
when he raped the victim once then again a short time later), disc.
review denied, 291 N.C. 715, 232 S.E.2d 207 (1977)), See also
Rambert, 341 N.C. at 176-77, 459 S.E.2d at 513 (it was not improper
to charge defendant with three counts of discharging a firearm into
an occupied vehicle when defendant fired three times at the
automobile and hit it all three times). The test is whether the
separate acts themselves, or the course of actions which they
constitute, are prohibited. Blockburger, 284 U.S. 299, 302, 76 L.
Ed. 2d 306, 308 (citing Wharton's Criminal Law, 11th ed., § 34.,
note 3).
Defendant contends that eight of the twelve indictments
against him for indecent liberties should have been dismissed
because they were part of the single “purpose of arousing or
gratifying sexual desire.” We conclude that the evidence presented
in this case indicates that each act for which defendant was
indicted was a separate and distinct violation of the statute.
Defendant was indicted for, and convicted of, the following crimes,
which are supported by the following evidence:
02CRS46 (defendant fondled A.C.'s breasts). Both victims
testified that defendant fondled A.C.'s breasts. A.C. testifiedthat while they were in defendant's Jacuzzi, he “tried to touch me
and [K.G.] ... around our privates and around our breasts.” And
that “sometimes [my clothes] would be on. Sometimes they would be
off.” Further, this misconduct happened sometimes in the Jacuzzi,
“[s]ometimes in his house, and sometimes on the bus.”
02CRS47 (defendant fondled A.C.'s vagina). A.C. testified
that the defendant touched her vagina on multiple occasions. Her
testimony made it clear that sometimes her clothes were on when
defendant fondled her, and sometimes they were off. She further
testified that he fondled her in the Jacuzzi, in the house, and in
the bus that was parked in his yard.
02CRS48 (defendant displayed his penis to A.C. and/or had A.C.
touch his penis). A.C. testified to an incident where the
defendant masturbated in front of the two victims (and was not
touching them at the time). This distinct act is sufficient to
support one charge against defendant for both A.C. and K.G. A.C.
also testified that defendant had both her and K.G. touch his penis
while they were all sitting on his couch in his living room.
Clearly, any other time he touched a victim with his penis or had
the victims touch his penis, which from the testimony was on
multiple occasions, he committed acts covered under this
indictment.
02CRS49 (defendant placed his penis on A.C.'s vagina). A.C.
testified that the defendant did this, and that his clothes were
sometimes “on, and a few times they were off.” She also testified
that it happened on his bed and in the Jacuzzi. 02CRS50 (defendant placed his penis and/or his mouth on K.G.'s
vagina). The victim's testimony shows the defendant touched K.G.'s
vagina with his penis multiple times in the bus and in his house,
while she was sitting on his lap, in the Jacuzzi, and that he
touched her vagina with his mouth in the bus.
02CRS51 & 02CRS55 (defendant displayed his penis to and/or had
K.G. touch his penis (two counts)). See discussion of 02CRS48
above.
02CRS52 & 02CRS56 (defendant fondled K.G.'s vagina (two
counts)). Testimony of both girls shows that he did so on the bus,
sometimes with K.G.'s clothes on, sometimes when they were off, in
the house, and in the Jacuzzi. K.G. testified that the fondling
occurred on more than one occasion and that the defendant's pants
were sometimes up and sometimes down.
02CRS53 & 02CRS57 (defendant fondled K.G.'s breasts (two
counts)). See 02CRS46 above. K.G. also testified that defendant
touched her breasts more than once, and that he touched her breasts
and vagina “sometimes [with his] hands, and sometimes his pee-pee.”
02CRS54 (defendant took a photograph of K.G.'s genital
region). The photograph was entered into evidence, and the
defendant admitted in his statement (entered into evidence) that he
was the one who took it.
The victim's testimony clearly indicated there were multiple
events, in at least four different places (the bus, the Jacuzzi,
his bedroom and the couch in his living room). Sometimes the
defendant was wearing clothes, sometimes his clothes were off. Sometimes the victims were wearing clothes, sometimes they weren't.
The victims were sometimes wearing swim suits, and at other times
were in pants.
This record provides ample evidence to support the twelve
separate counts of taking indecent liberties with these two minors,
and the jury determined the state had proven each count beyond a
reasonable doubt. Thus, defendant was not charged with a single
offense in multiple indictments, but rather with multiple
violations of the same statute. Accordingly, we hold that
indicting defendant for twelve separate acts of taking indecent
liberties did not violate the double jeopardy clause. Neither did
the trial court's decision to deny defendant's motion to dismiss at
the close of evidence. This assignment of error is without merit.
In his third assignment of error, defendant argues he received
ineffective assistance of counsel at trial. We disagree.
A defendant must satisfy a two-prong test to establish that he
received ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984);
State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998).
First, a defendant must show that his attorney's performance “fell
below an objective standard of reasonableness as defined by
professional norms.” Lee, 348 N.C. at 491, 501 S.E.2d at 345.
Second, he must show that “a reasonable probability exists that the
trial result would have been different absent the error.” Id.
Defendant contends that he was denied effective assistance of
counsel because as part of defendant's Motion to Suppress hisincriminating statement, his trial lawyer did not bring in an
expert witness to testify as to the defendant's capacity to
“knowingly and voluntarily” waive his right to refuse to speak with
the law enforcement officials. Defendant states in his brief that
“there was plenary evidence to suggest to trial counsel the
existence of mental retardation,” and for this reason trial
counsels failure to utilize expert testimony constitutes
ineffective assistance of counsel.
A defendant may waive his constitutional rights to counsel and
to remain silent only where the waiver is made knowingly,
voluntarily, and intelligently. Miranda v. Arizona, 384 U.S. 436,
16 L. Ed. 2d 694 (1966). In this case, the State introduced a
statement by defendant made on 9 August 2001. Defendant filed a
motion to suppress the statement, arguing it was not given
knowingly and voluntarily and that it was taken in violation of the
United States Constitution. The trial court concluded that
defendant “knowingly, willingly, intelligently, and voluntarily
waived” his constitutional rights to remain silent and have an
attorney present during questioning on 9 August 2001, and the court
denied defendant's motion.
Defendant has not established that his trial counsel's
assistance was below the level of assistance reasonably expected to
be provided by a competent attorney. Trial counsel is given wide
latitude in making strategic decisions. State v. Milano, 297 N.C.
485, 495, 256 S.E.2d 154, 160 (1979), overruled on other grounds by
State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). A psychiatricevaluation of defendant, conducted to determine defendant's
competency to proceed with trial, indicated that there was no need
for formal I.Q. testing because “the available evidence
overwhelmingly indicated that he was not mentally retarded.” In
addition, during a voir dire hearing on defendant's motion to
suppress the statement, the two detectives who took defendant's
statement testified that defendant was advised of his Miranda
rights, and that he voluntarily waived those rights, cogently
answered questions, and read and signed the transcribed statement.
Evidence of defendant's lack of intelligence alone will not render
an in-custody statement deficient if it was made voluntarily and
understandingly in all other respects. State v. Jenkins, 300 N.C.
578, 585, 268 S.E.2d 458, 463 (1980). Based on this evidence, the
trial court concluded that the statement was admissible because
defendant “knowingly, willingly, and intelligently waived his
rights.” In light of the ample evidence that defendant was capable
of “knowingly, willingly, and intelligently” waiving his Miranda
rights, trial counsel's decision not to request the help of an
expert in this matter does not fall below the level of assistance
that is reasonably expected by a competent attorney.
Moreover, defendant has not shown that the alleged errors
committed by his attorney prejudiced him and deprived him of a fair
trial. In fact, there was such overwhelming evidence against
defendant, even excluding the statement he made to police, that it
is not reasonably probable the trial would have had a different
outcome had the statement been excluded. Defendant has not met his burden of proof for either prong of
the two-part Strickland test required to prove that he received
ineffective assistance of counsel. This assignment of error is
without merit.
NO ERROR.
Judges MCGEE and CALABRIA concur.
Report per Rule 30(e).
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