An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-752

NORTH CAROLINA COURT OF APPEALS

Filed: 04 May 2004

STATE OF NORTH CAROLINA

v .                         Franklin County
                            No. 01 CRS 51729-30;
                             02 CRS 46-57
VERNON RAY TABOR

    Appeal by defendant from judgment entered 26 July 2002 by Judge Evelyn W. Hill in Franklin County Superior Court. Heard in the Court of Appeals 4 March 2004.

    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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