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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
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STATE OF NORTH CAROLINA v. MELVIN LEE BLIZZARD
Filed: 5 April 2005
1. Kidnapping--first-degree--motion to dismiss--sufficiency of evidence--rape
The trial court did not err by denying defendant's motion to dismiss the first-degree
kidnapping charge, because: (1) defendant's forcible movement of the victim from the front of
her home to the bedroom was a sufficient asportation to support kidnapping in addition to rape;
and (2) the trial court correctly arrested judgment of the first-degree kidnapping conviction after
the jury's verdict and sentenced defendant in the presumptive range of second-degree kidnapping
consistent with our Supreme Court's holding that a defendant may not be separately punished for
the offenses of first-degree rape and first-degree kidnapping where the rape is the sexual assault
used to elevate kidnapping to first-degree, although this holding does not affect the trial court's
denial of defendant's motion to dismiss at the close of the State's evidence.
2. Evidence--expert testimony--rape victim believable--not plain error
Although a medical expert's testimony that the victim was believable in her allegation
that defendant raped her was an impermissible comment on the credibility of the victim, the
admission of this testimony was not plain error in light of the corroborative testimony and
physical evidence offered by the State because it did not have a probable impact on the jury's
finding of guilt.
The trial court did not abuse its discretion in a first-degree rape, first-degree burglary,
and second-degree kidnapping case by admitting a poem written by the victim's boyfriend as a
State's exhibit, because: (1) the State tendered the evidence to corroborate the victim's testimony
that she did not consent to sexual intercourse with defendant due to her being in a relationship
with another man and to corroborate witness testimony about the events that evening; and (2)
defendant does not offer any authority to support his argument that the poem lacked any logical
tendency to help prove the facts at issue or was unfairly prejudicial.
4. Rape-_first-degree--instruction--serious personal injury
The trial court did not err by submitting a jury instruction on serious personal injury for
the charge of first-degree rape, because: (1) the victim testified about mental or emotional harm
from the attack that she still suffered at the time of trial, and a doctor testified to physical injuries
she received in the attack; and (2) defendant received the opportunity to cross-examine the
victim to attempt to create reasonable doubt in the jurors' minds regarding the issue.
5. Constitutional Law--effective assistance of counsel--dismissal of claim without
Although defendant contends he received ineffective assistance of counsel in a first-
degree rape, first-degree burglary, and second-degree kidnapping case, this assignment of error
is dismissed without prejudice for defendant to move for appropriate relief in the superior court
and request a hearing to determine whether he received ineffective assistance of counsel,
because: (1) the record is insufficient for the Court of Appeals to consider defendant's claim; and(2) defendant acknowledges in his brief that he is unable, on the present record, to litigate any of
the claims for ineffective assistance.
Appeal by defendant from judgments entered 6 November 2003 by
Judge Gregory A. Weeks in Brunswick County Superior Court. Heard
in the Court of Appeals 16 February 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Donald W. Laton, for the State.
Ligon and Hinton, by Lemuel W. Hinton, for defendant-
Melvin Lee Blizzard (defendant) appeals from judgments
entered after a jury returned guilty verdicts of: (1) first-degree
rape; (2) first-degree burglary; and (3) first-degree kidnapping.
The trial court arrested judgment on the first-degree kidnapping
conviction and sentenced defendant under second-degree kidnapping
presumptive sentencing guidelines. We find no prejudicial error.
A. State's Evidence
The State's evidence tended to show that on the evening of 19
December 2002, defendant and several other people gathered in
Christine Tina Johnston's (Johnston) home in Leland, North
Carolina. The group of visitors and residents were acquainted with
each other. They played cards, rolled dice, and consumed alcoholic
beverages. The victim, Johnston's next door neighbor, arrived at
Johnston's home between 9:00 and 9:30 p.m. She came over to check
if her boyfriend had left a telephone message and to show Johnstona framed poem from him. Upon arrival, the victim was introduced to
those present, including defendant. After about twenty minutes,
the victim left and went home.
Later that night, the victim was sleeping on her couch when
she heard a knock at her door. She opened the door slightly and
recognized defendant standing outside. Defendant asked to come in
and the victim said, no. However, defendant was persistent and
just pushed his way in [to her home]. The two spoke briefly.
Defendant brandished a knife. He told the victim to remove her
clothing or he would cut them off. Defendant locked the door,
grabbed the victim, and pushed her against the wall.
Defendant told her that he had been watching her at her house
the week before. The victim tried to escape on several occasions,
but defendant subdued her. He forced the victim to undress and
demanded oral sex. He then forced her into her bedroom where he
forced the victim into non-consensual sexual intercourse.
Ricky Blakely (Blakely), a next door neighbor, knocked
loudly on the front door, interrupting defendant's attack. The
victim screamed. Blakely burst through the front door and
confronted defendant when he emerged from the bedroom. Defendant
fled naked toward Johnston's home. The victim, also nude, ran out
the back door of her home and hid behind Johnston's garbage can.
Defendant and his mother, who was present at Johnston's house,
gathered their belongings and left in separate vehicles.
After defendant left, the victim contacted law enforcement.
Officer Keith Bowling of the Brunswick County Sheriff's Departmentresponded to the call around 12:30 a.m. Officer Bowling found the
victim in Johnston's bathroom crying and extremely upset. After
Officer Bowling secured the scene, Johnston drove the victim to the
New Hanover Regional Medical Center. The victim was examined by
Dr. Kevin John Reese (Dr. Reese). Dr. Reese described the victim
as extremely upset and fearful. Dr. Reese diagnosed the victim
as suffering from blunt trauma, swelling, and scrapes. According
to Dr. Reese, the victim's injuries were consistent with someone
who had been forcibly restrained.
Defendant was indicted for: (1) first-degree rape; (2) first-
degree kidnapping; and (3) first-degree burglary. He pled not
guilty to all charges and was tried by a jury on 4 November 2003.
B. Defendant's Evidence
Defendant testified that he had met the victim before the
night of the alleged crimes. He stated that on 19 December 2002,
the victim hugged him, stroked his hair, and made advances to him.
He further testified that when he went to the victim's home later
that night, the victim encouraged and consented to sexual
intercourse with him. Defendant attempted to elicit on cross-
examination that the victim's injuries were the result of rough
consensual sex. He also testified that only after Blakely came to
the door and discovered the two having consensual sex did the
victim scream, help, he raped me! Defendant denied hitting or
raping the victim.
The jury found defendant guilty of all charges. The trial
court arrested the first-degree kidnapping conviction and sentenceddefendant under second-degree kidnapping. Defendant was found to
be a record level V offender and was sentenced in the presumptive
ranges to: (1) a minimum of 433 months and maximum of 529 months
for first-degree rape; (2) a minimum of 107 months and maximum of
138 months for first-degree burglary; and (3) a minimum of 42
months and maximum of 60 months for second-degree kidnapping.
Defendant argues: (1) the trial court erred in denying
defendant's motion to dismiss the first-degree kidnapping charge;
(2) the trial court committed plain error by admitting expert
opinion testimony regarding the credibility of a prosecuting
witness; (3) the trial court erred in admitting a poem as a State's
exhibit; (4) the trial court improperly submitted a jury
instruction on serious personal injury; and (5) that he received
ineffective assistance of counsel.
III. Motion to Dismiss
A. Standard of Review
The standard of review for a motion to dismiss in a criminal
trial is '[u]pon defendant's motion for dismissal, the question
for the Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant's being the perpetrator of
such offense. If so, the motion is properly denied.' State v.
Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State
v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to
accept a conclusion. If substantial evidence,
whether direct, circumstantial, or both,
supports a finding that the offense charged
has been committed and that the defendant
committed it, the motion to dismiss should be
denied and the case goes to the jury. But,
if the evidence is sufficient only to raise a
suspicion or conjecture as to either the
commission of the offense or the identity of
the defendant as the perpetrator of it, the
motion should be allowed.
In considering a motion to dismiss, the trial
court must analyze the evidence in the light
most favorable to the State and give the State
the benefit of every reasonable inference from
the evidence. The trial court must also
resolve any contradictions in the evidence in
the State's favor. The trial court does not
weigh the evidence, consider evidence
unfavorable to the State, or determine any
witnesses' credibility. It is concerned only
with the sufficiency of the evidence to carry
the case to the jury. Ultimately, the court
must decide whether a reasonable inference of
defendant's guilt may be drawn from the
State v. Thaggard, 168 N.C. App. 263, 281, ___ S.E.2d ___, ___
(Feb. 1, 2005) (No. COA04-368) (internal citations and quotations
B. First-Degree Kidnapping
 Our Supreme Court recently restated the definition of
first-degree kidnapping in State v. Bell, 359 N.C. 1, 603 S.E.2d 93
Kidnapping is the unlawful confinement,
restraint, or removal of a person from one
place to another for the purpose of: (1)
holding that person for a ransom or as a
hostage, (2) facilitating the commission of a
felony or facilitating flight of any person
following the commission of a felony, (3)
doing serious bodily harm to or terrorizingthe person, or (4) holding that person in
involuntary servitude. N.C.G.S. § 14-39(a)
(2003). Kidnapping is considered to be in the
first-degree when the kidnapped person is not
released in a safe place or is seriously
injured or sexually assaulted during the
commission of the kidnapping. N.C.G.S. §
Id. at 25, 603 S.E.2d at 110 (citations omitted); N.C. Gen. Stat.
§ 14-39 (2003). The element of confinement, restraint, or
removal requires a removal separate and apart from that which is
an inherent, inevitable part of the commission of another felony.
State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981); see
also State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245, 255
(restraint, confinement, and asportation of a rape victim may
constitute kidnapping if it is a separate, complete act,
independent of and apart from the rape), disc. rev. denied, 332
N.C. 670, 424 S.E.2d 414 (1992). Asportation of a rape victim is
sufficient to support a charge of kidnapping if the defendant could
have perpetrated the offense when he first threatened the victim,
and instead, took the victim to a more secluded area to prevent
others from witnessing or hindering the rape. State v. Walker, 84
N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987). Evidence tending
to show the rape victim was forced down a hallway from one room to
another was a sufficient asportation separate and independent of
the elements of rape to support a conviction for second-degree
kidnapping. State v. Mangum, 158 N.C. App. 187, 195, 580 S.E.2d
750, 755, cert. denied, 357 N.C. 510, 588 S.E.2d 378 (2003)
(Kidnapping, whether in the first or second degree, requires the
unlawful restraint or confinement of a person . . . .). The State presented evidence that defendant forced himself
into the victim's home, locked the door behind him, held the victim
at knife point, demanded she perform and received oral sex, forced
her into a bedroom, and engaged in non-consensual sexual
intercourse with her. Under the holding in Mangum and cases cited
therein, defendant's forcible movement of the victim from the front
of her home to the bedroom was a sufficient asportation to support
kidnapping in addition to the rape. 158 N.C. App. at 195, 580
S.E.2d at 755-56. Defendant forced the victim to perform oral sex
at knife point at the front of the house, indicating he could have
continued the assault there. Walker, 84 N.C. App. at 543, 353
S.E.2d at 247. Instead, he moved her under knife point away from
the front door to the bedroom to engage in non-consensual sexual
Taken in the light most favorable to the State and providing
the State the benefit of every reasonable inference from the
evidence, substantial evidence exists to deny defendant's motion to
dismiss the charge of first-degree kidnapping. Contradictions in
the evidence are to be resolved in the State's favor. The trial
court properly submitted the charge of first-degree kidnapping to
The trial court correctly arrested judgment of the first-
degree kidnapping conviction after the jury's verdict and sentenced
defendant in the presumptive range of second-degree kidnapping.
The trial court's decision is consistent with our Supreme Court's
holding that a defendant may not be separately punished for theoffenses of first degree rape and first degree kidnapping where the
rape is the sexual assault used to elevate kidnapping to first
degree. State v. Mason, 317 N.C. 283, 292, 345 S.E.2d 195, 200
(1986). However, the holding in Mason does not affect the trial
court's denial of defendant's motion to dismiss at the close of the
State's evidence. The trial did not err in denying defendant's
motion to dismiss the charge of first-degree kidnapping for lack of
sufficient evidence. This assignment of error is overruled.
IV. Medical Expert Opinion Testimony
 Defendant contends the trial court committed plain error
in admitting a medical expert witness's opinion testimony that the
victim was believable in her allegation that defendant raped her.
A. Preservation of Potential Error for Appellate Review
Rule 10(b)(1) of the North Carolina Rules of Appellate
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion.
N.C.R. App. P. 10(b)(1) (2004). Assignments of error are generally
not considered on appellate review unless an appropriate and timely
objection was entered and ruling obtained. State v. Short, 322
N.C. 783, 790, 370 S.E.2d 351, 355 (1988) (citing State v. Reid,322 N.C. 309, 367 S.E.2d 672 (1988)); N.C. Gen. Stat. § 15A-1446(a)
Defendant acknowledges he failed to make a timely and specific
objection when the State proffered Dr. Reese's opinion testimony
into evidence. Under Rule 10(b)(1), defendant failed to preserve
this assignment of error for review. Defendant urges us to
consider his assignment of error under plain error review.
B. Plain Error Rule
Our Supreme Court adopted the plain error rule as an exception
to Rule 10 in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)
(applied to assignments of error regarding jury instructions). A
defendant seeking plain error review must specifically and
succinctly argue that any error committed by the trial court
amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15,
515 S.E.2d 885, 904 (1999), vacated and remanded, 357 N.C. 433, 584
S.E.2d 765 (2003). The proponent must show that:
[A]fter reviewing the entire record, it can be
said the claimed error is a fundamental
error, something so basic, so prejudicial, so
lacking in its elements that justice cannot
have been done, or where [the error] is
grave error which amounts to a denial of a
fundamental right of the accused, or the
error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted),cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Our Supreme
Court extended plain error review to issues concerning
admissibility of evidence. State v. Black, 308 N.C. 736, 741, 303
S.E.2d 804, 807 (1983) (we conclude, and so hold, that the 'plain
error' rule as applied in Odom to Rule 10(b)(2) applies with equal
force to Rule 10(b)(1)).
Defendant properly argued in his brief with citations to
relevant authority that the admission of Dr. Reese's expert opinion
testimony constitutes plain error, warranting this Court's review
of an otherwise unpreserved assignment of error.
We examine the entire record to decide whether the error had
a probable impact on the jury's finding of guilt. Odom, 307 N.C.
at 661, 300 S.E.2d at 379 (citation omitted). We determine
whether, without this error, the jury would have reach[ed] a
different verdict. State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d
75, 80 (1986).
C. Medical Expert Opinion on Witness Credibility
This Court stated in State v. Ewell, 168 N.C. App. 98, 102,
___ S.E.2d ___, ___ (Jan. 18, 2005) (No. COA04_372):
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003)
provides, If scientific, technical or other
specialized knowledge will assist the trier of
fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience,
training, or education, may testify thereto in
the form of an opinion. However, an expert's
opinion testimony may not be used to establish
or bolster the credibility of a witness.
State v. Heath, 316 N.C. 337, 342, 341 S.E.2d
565, 568 (1986).
The transcript shows that during the State's direct
examination of Dr. Reese, he was asked:
State: Dr. Reese, did you provide
medical treatment to . . . [the
victim] on December 20th, early
morning hours of last year?
Dr. Reese: Yes, I did.
State: And how did she present to you?
What -- what was her condition
when you saw her?
Dr. Reese: When I first saw her in the
room, I saw a young female kind
of huddled on the bed, crying,
shaking, very emotionally
upset, very, very extremely
fearful of her life is what she
stated I'm scared of [sic] my
life. She truly was
believable to me as someone who
was incredibly scared of
something that had happened to
(Emphasis supplied). Dr. Reese's response was an impermissible
comment by an expert medical witness on the credibility of the
victim, the prosecuting witness. State v. Stancil, 355 N.C. 266,
266-67, 559 S.E.2d 788, 789 (2002); State v. Couser, 163 N.C. App.
727, 594 S.E.2d 420 (2004); Ewell, 168 N.C. App. at 105-06, ___
S.E.2d at ___. This testimony was admitted during the State's
case-in-chief, prior to defendant opening the door. See State v.
Baymon, 336 N.C. 748, 752-53, 446 S.E.2d 1, 3 (1994) (Opening the
door is the principle where one party introduces evidence of a
particular fact and the opposing party may introduce evidence to
explain or rebut it, even though the rebuttal evidence would be
incompetent or irrelevant, if offered initially). We hold the admission of Dr. Reese's expert opinion testimony
bolstering the credibility of the victim, the State's chief
prosecuting witness, was error.
D. Plain Error
Having found the admission of Dr. Reese's expert opinion
testimony to establish or bolster the credibility of the victim
was error, we now consider whether this error constitutes plain
error and prejudices defendant. Heath, 316 N.C. at 342, 341 S.E.2d
The State offered testimony from Blakely, Johnston, and
Officer Bowling in addition to that of the victim and Dr. Reese.
Blakely testified that after defendant left Johnston's house to go
to the victim's home, he followed defendant thinking, something
was not right. Before he reached the victim's front door, he
heard her screaming inside. When he finally kicked in the victim's
door, defendant was nude and ran past him out the door, saying, I
didn't do anything wrong, I didn't do anything wrong. Blakely
found the victim scared and upset, and claiming that defendant
Officer Bowling testified that upon arrival at Johnston's
house, he found the victim in the bathroom and stated, [s]he was
crying and just very upset and very hysterical at the time. When
Officer Bowling asked the victim whether defendant had made
penetration, the victim responded, [y]es he did. He described
photographs of the victim's home, which included pictures of the
victim's clothes strewn across the floor. Johnston testified that she heard someone screaming after
Blakely left to check on the victim. She described it as a
terrifying scream. When the victim finally entered Johnston's
house after hiding behind the trash can, Johnston testified she was
hysterically crying, shaking, and told Johnston, he raped me.
Defendant fails to argue and our complete review of the record
and transcripts does not disclose that the error admitting Dr.
Reese's comments on the victim's credibility was something so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done. McCaskill, 676 F.2d at 1002. In light of
the corroborative testimony and physical evidence offered by the
State, we hold the error did not have a probable impact on the
jury's finding of guilt, Odom, 307 N.C. at 661, 300 S.E.2d at 379,
or absent the error, the jury would probably have returned a
different verdict. Riddle, 316 N.C. at 161, 340 S.E.2d at 80. We
hold the admission of Dr. Reese's expert opinion testimony that the
victim was believable was not prejudicial to defendant to warrant
a new trial. This assignment of error is overruled.
V. State's Exhibit
 Defendant contends the trial court erred in admitting into
evidence a poem written by the victim's boyfriend. We disagree.
'Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401
(2003). Evidence is relevant if it has any logical tendency,however slight, to prove a fact at issue. State v. Sloan, 316 N.C.
714, 724, 343 S.E.2d 527, 533 (1986). Our Supreme Court has
interpreted Rule 401 broadly and [has] explained on a number of
occasions that in a criminal case every circumstance calculated to
throw any light upon the supposed crime is admissible and
permissible. State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559,
562 (1994) (citations omitted).
Generally, all relevant evidence is admissible. N.C. Gen.
Stat. § 8C-1, Rule 402 (2003). However, relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by the considerations of undue delay, waste of time,
or needless presentation of cumulative evidence. N.C. Gen. Stat.
§ 8C-1, Rule 403 (2003). Exclusion or admission of evidence under
Rule 403 rests within the sound discretion of the trial court.
State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986).
Here, the State tendered into evidence the poem the victim's
boyfriend wrote and gave to her. The State argued two reasons for
the poem's relevance and admission: (1) it corroborated the
victim's testimony that she did not consent to sexual intercourse
with defendant due to her being in a relationship with another man;
and (2) it corroborated Johnston's and others' testimony about the
events that evening. Defendant objected and asserts the poem was
irrelevant or, if relevant, was misleading to the State's actual
reason for admission. Our review of the record and transcript fails to disclose that
the trial court abused its discretion in admitting the poem into
evidence. Defendant does not offer any authority to support his
argument that the poem lacked any logical tendency to help prove
the facts at issue or was unfairly prejudicial. This assignment of
error is overruled.
VI. Jury Instructions
 Defendant contends the State's evidence did not support
the trial court's instruction to the jury on serious personal
injury. We disagree.
A. Plain Error Review
Defendant acknowledges in his brief that he failed to object
to this specific instruction during the charge conference or during
the trial court's actual instruction to the jury. Under Rule
10(b)(1) of the North Carolina Rules of Appellate Procedure, this
assignment of error was not preserved for appellate review.
However, defendant specifically and succinctly asserted and
requested that this Court consider this issue under plain error
review. Nobles, 350 N.C. at 514-15, 515 S.E.2d at 904.
B. Standard of Review
This Court reviews jury instructions
contextually and in its entirety. The charge
will be held to be sufficient if it presents
the law of the case in such manner as to leave
no reasonable cause to believe the jury was
misled or misinformed . . . . The party
asserting error bears the burden of showing
that the jury was misled or that the verdict
was affected by [the] instruction. Under
such a standard of review, it is not enough
for the appealing party to show that erroroccurred in the jury instructions; rather, it
must be demonstrated that such error was
likely, in light of the entire charge, to
mislead the jury.
Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002)
(internal citations and quotations omitted).
C. Serious Personal Injury
Under N.C. Gen. Stat. § 14-27.2 (2003), [a] person is guilty
of rape in the first degree if the person engages in vaginal
intercourse . . . with another person by force and against the will
of the other person, and . . . [i]nflicts serious personal injury
upon the victim or another person . . . . Serious personal injury
may be shown solely upon the existence of mental and emotional
injury. State v. Boone, 307 N.C. 198, 205, 297 S.E.2d 585, 590
(1982), overruled on other grounds, State v. Richmond, 347 N.C.
412, 429-30, 495 S.E.2d 677, 686-87 (1998) (Any language in . . .
Boone suggesting that the serious personal injury element of
first-degree rape or sexual offense cannot [include those injuries
resulting in] death is therefore disavowed.).
[I]n order to prove a serious personal injury
based on mental or emotional harm, the State
must prove that the defendant caused the harm,
that it extended for some appreciable period
of time beyond the incidents surrounding the
crime itself, and that the harm was more than
the res gestae results present in every
forcible rape. Res gestae results are those
so closely connected to [an] occurrence or
event in both time and substance as to be a
part of the happening.
State v. Baker, 336 N.C. 58, 62-63, 441 S.E.2d 551, 553-54 (1994)
(internal citations and quotations omitted).
The record and transcripts show sufficient evidence was
tendered by the State to support a jury instruction on serious
The victim testified about the impact of the attack on her
emotionally: I was living a healthy, regular like a normal 22
year old would, you know. I was fine. I wasn't scared all of the
time. I didn't have all of this anxiety. I could go places and do
things by myself. However, after 19 December 2002:
I haven't been all right because I'm always
scared -- I'm always scared someone is
watching me . . . . I don't go out by myself
anymore . . . . I can't handle anyone coming
up from behind me, say they're walking up
behind me, it really -- it does something to
me. It's really traumatized me . . . . I
thought it would get better . . . . I try to
put it behind me but it's impossible. It's
getting worse. I have nightmares, I have
She further testified that she now varies her schedule to prevent
someone from predicting her activities, like defendant claimed he
had done. These effects from the attack continued to exist at
trial, eleven months after the assault.
Dr. Reese testified to the victim's physical injuries he
observed during his medical examination after the assault:
she had soft tissue redness and swelling to
the side of the face and her nose in the right
eye area. The area had blunt trauma, swollen,
and tender and red . . . . Blunt trauma,
swelling to the right side of the mouth, lower
lip . . . . She had soft tissue swelling to
both sides of the neck underneath the chin,
consistent with being held to the neck,
squeezing, forceful, soft tissue, very tender
underneath the neck . . . . [S]he had a large
area about four to five inches, red, tender,
swollen, acutely swollen area to the back ofher back . . . . She had areas on both of her
wrists . . . consistent with being held,
scraped, someone holding her wrists . . . .
[S]he had a couple of blood blisters on her
Based on this evidence, the trial court gave the following
jury instruction concerning serious personal injury:
Serious personal injury includes serious
mental or emotional injury as well as bodily
injury. In order for the State to meet its
burden of proof as to serious personal injury
because of injury to the mind or nervous
system, the State must prove not only that
such injury was caused by the defendant, but
also that such mental injury extended for some
appreciable period of time beyond the
incidents surrounding the alleged crime
itself. I further instruct you that such
injury must be more than that normally
experienced in every forcible rape. In other
words, the mental or emotional injury must be
more than that which is coincident with every
rape and which are the results that one could
reasonably expect to be present during and
immediately after any forcible rape has been
N.C.P.I. -- Crim. 207.10 (2003); Boone, 307 N.C. at 205, 297 S.E.2d
Defendant has not shown and we fail to see that the jury was
misled or misinformed by the instruction. The trial court
thoroughly examined the issue by considering applicable case law
under Boone and hearing oral arguments by both parties. 307 N.C.
at 205, 297 S.E.2d at 590. Defendant received the opportunity to
cross-examine the victim to attempt to create reasonable doubt in
the jurors' minds regarding the issue. The trial court did not err
in charging the jury. Finding no error in the instruction, we donot consider defendant's assignment under plain error review. This
assignment of error is overruled.
VII. Ineffective Assistance of Counsel
 Defendant asserts his counsel failed to provide meaningful
assistance which prejudiced his defense.
The United States Supreme Court outlined a two-part test in
Strickland v. Washington to determine if an ineffective assistance
of counsel (IEAC) claim has merit. 466 U.S. 668, 80 L. Ed. 2d
674, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). Our
Supreme Court adopted the test in State v. Braswell, 312 N.C. 553,
324 S.E.2d 241 (1985). First, the defendant must establish that
his counsel's performance was deficient in that it fell below an
objective standard of reasonableness. Id. at 561-62, 324 S.E.2d
at 248. Second, the defendant must show that a reasonable
probability exists that but for the error, the result of
defendant's trial would have been different. Id. at 563, 324
S.E.2d at 248.
We decline to reach defendant's IEAC assignment of error
because it is not properly raised at this stage of review. A
defendant's IEAC claim may be brought on direct review when the
cold record reveals that no further investigation is required,
i.e., claims that may be developed and argued without such
ancillary procedures as the appointment of investigators or an
evidentiary hearing. State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524, motion denied, 354 N.C. 576, 558 S.E.2d 861 (2001), cert.
denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Here, the record is insufficient for this Court to consider
defendant's claim. From our review of the transcripts and record,
we cannot determine whether defense counsel's actions or inaction
defendant cites to resulted from trial tactics, strategy, lack of
preparation, or unfamiliarity with the legal issues. Further,
defendant acknowledges in his brief that he is unable, on the
present record, to litigate any of those claims for [IEAC].
Our dismissal of this assignment of error is without prejudice
for defendant to move for appropriate relief and request a hearing
to determine whether he received effective assistance of counsel.
See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721
(1985) (The accepted practice is to raise claims of [IEAC] in
post-conviction proceedings, rather than direct appeal.). This
assignment of error is dismissed without prejudice for defendant to
file a motion for appropriate relief in superior court.
The trial court properly denied defendant's motion to dismiss
the charge of first-degree kidnapping. The admission of Dr.
Reese's medical expert opinion testimony that the victim was
believable was error, but not prejudicial to defendant. The
trial court properly admitted the poem from the victim's boyfriend
as relevant evidence to corroborate testimony given by other
witnesses for the State. Sufficient evidence was proffered to
warrant an instruction to the jury on the element of serious
personal injury for the charge of first-degree rape. We decline
to consider defendant's claim of IEAC and dismiss the assignment oferror without prejudice for defendant to file a motion for
appropriate relief. Defendant received a fair trial free from
No prejudicial error.
Judges MCGEE and GEER concur.
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