An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA03-1138


Filed: 16 August 2005


v .                         Guilford County
                            Nos. 01 CRS 2600
ROGER DEL HERRING,                    01 CRS 2601
                                01 CRS 2602

    Appeal by defendant from judgment entered 9 October by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 19 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson for the State.

    Paul Pooley for defendant-appellant.

    ELMORE, Judge.

    The victim in this case, a girl, was seven years old at the time of the alleged incidents. Her testimony was that Roger Del Herring (defendant) touched her in her private area and had sex with her while she was asleep. A doctor's exam produced evidence which supported a finding of sexual abuse: both physical evidence and a positive STD test. Health Department records showed that defendant had tested positive and been treated for the same STD in 1999. He tested negative for the STD after the victim's test. Defendant's ex-wife also testified that during their marriage she suspected defendant was having sex with her when she was asleep, and confirmed that on one occasion he tried while she feignedsleep. Defendant stated in a statement to law enforcement that the victim had slept in his bed, that he was able to have sex in his sleep, and that any sex that he had with the victim would have been unintentional.
    Defendant was tried by a jury and found guilty of taking indecent liberties with a child, statutory sex offense, and statutory rape. Defendant was sentenced for his sex offense conviction to an aggravated term of 420 to 513 months. The rape and indecent liberties convictions were consolidated for sentencing purposes, and defendant was sentenced to another aggravated term of 420 to 513 months to run consecutively with the first. Defendant now brings this appeal.

    Defendant first argues on appeal that he was denied his right to the effective assistance of counsel by the trial court's decision to allow him to proceed at trial when he was at an impasse with his attorney.
    Both sides agree that under the authority of State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991), if the defendant and his counsel are at an “absolute impasse” then the wishes of the defendant should govern, and counsel should make a record of the situation. In cases where there is disagreement but not an “absolute impasse,” then counsel is responsible for making tactical decisions. State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991) , explains this reasoning:
        Tactical decisions at trial, other than the right to testify and plead, are generally leftto attorney discretion. . . . However, this does not mean that the client has no input into tactical decisions. . . . In a case filed today, State v. El Amin Ahmad Ali, 329 N.C. 394, 407 S.E.2d 183 (1991), this Court, after a complete analysis of defendant's sixth amendment right to counsel, concluded that where defense counsel allowed defendant to make a decision not to peremptorily challenge a juror, against the recommendations of both his attorneys, the client's wishes must control. Contrary to El Amin Ahmad Ali, in the case sub judice, the record reveals that counsel and defendant were not in conflict as to whether to pass or strike these jurors, but simply that defense counsel gave deference to his client's wishes.

McDowell, 329 N.C. at 380, 407 S.E.2d at 209-10 (citations omitted).
    The McDowell Court held:
        Although defense counsel took defendant's feelings into consideration, he did not abdicate his role as effective counsel. We find that the trial court did not err in permitting defendant to give input into the voir dire decision-making process and that defendant was not denied effective assistance of counsel. Cf. State v. El Amin Ahmad Ali, 329 N.C. 394, 407 S.E.2d 183 (defendant not denied effective assistance of counsel where defendant made a decision to accept a juror, against the recommendations of both his counsel); State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645 (1990) (not prejudicial error, if error at all, to allow a criminal defendant to call a witness over the recommendation of his attorney).

McDowell, 329 N.C. at 381-82, 407 S.E.2d at 210.
    In Ali, the defendant appealed based upon the trial court's allowing his decision to rule over his attorney's. This Court upheld the trial court, reasoning that the defendant should beallowed to make decisions when he is at an impasse with his counsel.
    The issue on appeal is whether this defendant and his counsel were at an “absolute impasse” which would require his counsel to abide by his decisions.
    The record shows that after the jury was empaneled and left the courtroom, the trial court allowed the following statement by defendant's counsel for the record:
            MR. WANNAMAKER: Thank you. If your Honor please, I'll be brief, but I feel that I must indicate for the record that my client and I don't see eye to eye on very many things, and not the least of which is the rejection of what we brought him here for, but that's his right, but now he is more or less determined that this doesn't concern him, and I'm, you know, he's not participating in any way.
            And that's fine, also. I just want the record to reflect that, lest, down the road at some point, depending on the outcome of this trial, my decisions, which are being made by myself without his willingness to even address the issue or deign to participate or pay any attention to what's going on, should be called into question. I feel that that's necessary that I put that on the record.
            THE COURT: Okay.
            MR. WANNAMAKER: So I have now, I guess, done that.
            THE COURT: Thank you.
        Mr. Herring, would you just stand up for a minute? First of all, you do not have to talk to me, you don't have to say anything to me. You have that right, and I'm not going to ask you any questions. I just want to tell you that if there is anything you want to say at this point, in light of what Mr. Wannamaker said, you may speak but you do not have to. No? All right, you can be seated.

    If the only evidence of record is that the defendant would not participate in any way, and the defendant was given opportunity inopen court and did not respond to that statement, then there seem to be no wishes of the defendant that counsel contradicted. They were not at an impasse if they were not at odds. If the defendant is merely unhelpful or unsupportive of counsel, then counsel has nothing to do but proceed without regard for his client's unexpressed wishes. The trial court did not err in allowing the defendant's counsel to so proceed.
    The defendant next argues on appeal that the trial court erred in allowing testimony from a witness who defendant asserts lacked personal knowledge and whose testimony failed to meet the requirements for present recollection refreshed.
    Before being refreshed, the victim testified that defendant took her and her sister to his house, and put her in his bed and her sister on the floor beside the bed to sleep. She testified that before she went to sleep she was wearing her shirt, shorts, and panties, and that when she woke up she was only wearing her shirt and was on top of the defendant. She testified that he was touching her in her private area. During the direct examination counsel had to repeatedly tell the nine-year-old witness to speak up and coax her to answer. It was not inappropriate for her recollection to be refreshed with a report which she had given earlier, since it was her own words recorded by the officer's report which were used to refresh her memory. See State v. Daniels, 337 N.C. 243, 269, 446 S.E.2d 298, 311 (1994) (stating that a party may use any material to refresh the memory of awitness), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995); see also N.C. Gen. Stat. § 8C-1, Rule 612(b) (2003). In the present case, the witness was not thereafter testifying to the contents of the report, but to the events of the incident in question.
    Defense counsel sought to bring this out on cross-examination in the following exchange with the victim:

        Q    Hey [witness's name], how are you?
        A    Fine.
        Q    . . . do you remember before we took the recess and you went outside? Do you remember that?
        A    Yes.
        Q    You didn't remember any of this, did you?
        A    No.
        Q    And you went outside, and you talked with everybody and Detective Willis, and now you remember what Detective Willis says; isn't that right?
        A    Yes.
        Q    You don't remember it yourself, do you? Aren't you remembering what he said?    
        A    I remember what he wrote down on paper for me _
        Q    You're remembering what _
            THE COURT: Okay, well, wait. You need to let her finish her answer.
        A    I remember what he wrote down on paper that I said.
        Q    You remember what he told you he wrote down on a piece of paper that you said. That's what you're remembering; not what you said, but what he wrote down on the piece of paper that he told you you said; isn't that right?
            MR. CARROLL: Objection, it's argumentative.
            THE COURT: Well, sustained as to the form.    
        Q    He read to you the piece of paper; is that right?
        A    Yes.
        Q    And you now remember what he read to you; is that right?        A    Yes.
        Q    And that's what you're testifying about, what he read to you; isn't that right?
        A    Yes.
        Q    Thank you . . .

    Considering the tender age of the witness and her shyness on the stand, this line of questioning does not amount to an admission that she was not testifying to her own recollections but only to what he told her. The officer's report was made from an interview with the witness in which her words were recorded. The testimony she gave before the recollection was not inconsistent in any way with the testimony she gave after hearing the report read to her; it was just not as detailed. We discern no prejudicial error.

    Defendant next argues on appeal that the trial court erred in admitting and playing a videotape that he asserts failed to meet the requirements for a recorded recollection.
    Defendant did not object to the admission of the video tape, so the standard of review for the evidentiary admission is plain error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Under the plain error standard of review, defendant has the burden of showing: “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” Id.
    Because the interviewer in the video was actually on the stand testifying, the child's statements during the interview, offered as corroborative evidence, would have reached the jury anyway, even ifonly by the interviewer's live testimony. The showing of the video did not change the outcome of the trial. The defendant was therefore not prejudiced by the evidence.
    Defendant next assigns error to the trial court's admission into evidence of statements made by the pediatrician who examined the victim, which statements defendant argues were not made for purposes of medical diagnosis or treatment. Defendant argues that the following testimony by the pediatrician was inadmissible and prejudicial:
        [. . .] I asked her if she knew why she was here. At which point she answered, “Roger.” And I asked, “What about Roger?” She answered, “He touches me places I didn't want to be touched.” I asked her where he touched her. She answered, “my privates,” and pointed to her genitalia. She stated, “He touched me with his private, and with his hand,” and at that point she didn't want to discuss this any further so I stopped the interview.

    Defendant did not object to this testimony at trial, so the standard of review on appeal is plain error. As noted above, under the plain error standard of review, defendant must show either “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” Bishop, 346 N.C. at 385, 488 S.E.2d at 779. Moreover, our Supreme Court has stated as follows:
        The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to “plain error,” the appellate court . . . mustdetermine that the error in question “tilted the scales” and caused the jury to reach its verdict convicting the defendant. Therefore, the test for “plain error” places a much heavier burden upon the defendant than that imposed by N.C.G.S. § 15A-1443 upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection.

State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citations omitted).
    Rule 803(4) of our Rules of Evidence provides as follows:
        [T]he following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
N.C. Gen. Stat. § 8C-1, Rule 803(4) (2003). In order to be admissible under this hearsay exception, the challenged statement must meet a two-part inquiry. The court must determine “(1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment.” State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).
    Defendant argues on appeal that the doctor's testimony regarding statements made by the victim during her examination was inadmissible because these statements were not made for the purpose of medical diagnosis or treatment. We disagree. The interview was relevant to her exam and diagnosis of the victim since sexual abusewas suspected. However, even assuming arguendo that the challenged testimony of the pediatrician fails to satisfy the “purpose” prong of the Hinnant test, our Supreme Court's decision in Hinnant is not controlling on the question of whether the admission of such testimony rises to the level of “plain error,” which, although not objected to at trial, entitles the defendant to a new trial. Walker, 316 N.C. at 38, 340 S.E.2d at 83. In the present case, our review of the entire record leads us to conclude that even if the trial court erred in admitting the testimony which is now challenged for the first time on appeal, such error was not “plain error.” The victim's statements to the doctor during her examination were consistent with testimony adduced at trial from the victim and other witnesses and defendant's only response to the police was that any sex occurred while he was asleep and was unintentional. The defendant has not shown plain error.
    Defendant next argues that the proof that defendant committed first-degree sex offense and first-degree rape was legally insufficient.
    There must be evidence of penetration in order to support a charge of first-degree sex offense. Defendant argues that evidence of penetration was insufficient. The testimony of the doctor about the victim's anatomy supported a finding of penetration. The defendant's argument depends on the exclusion of the victim's testimony. Because that testimony was admissible, there was sufficient evidence. Even absent the questioned evidence, therewas enough evidence from the victim's testimony prior to her recollection being refreshed, from the doctor, from defendant's ex- wife's testimony, and from the investigating officer to go to the jury.
    Defendant next argues that the errors committed by the trial court, in aggregate, deprived defendant of the fair trial to which he was due. Considering the great weight of the testimonial and physical evidence against defendant, and upon examination of the record and transcript, we determine that defendant received a fair trial, free from prejudicial error.
    Defendant also assigns error to the trial court's sentence, which he argues does not comply with constitutional sentencing requirements. He argues that our state's sentencing scheme, allowing the trial court to find statutory aggravating factors by a preponderance of the evidence, is structural error and violates his Sixth Amendment right to a jury trial. Here, the trial court sentenced defendant in the aggravated range based on its finding that 1) defendant took advantage of a position of trust and 2) “transmitted a sexually transmitted disease to the victim . . . .”
    Defendant's brief was filed 26 November 2003, and as stated above, his appeal was heard on 19 May 2004. While defendant's appeal has been pending before this Court, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). Further, during the pendency of defendant'sappeal, this Court decided State v. Allen, 166 N.C. App. 139, 601 S.E.2d 299 (2004), which was recently affirmed in State v. Allen, ___ N.C. ___, ___ S.E.2d ___ (01 July 2005) (485PA04) . There, our Supreme Court applied Blakely and held that N.C. Gen. Stat. § 15A- 1340.16 was unconstitutional to the extent that it required the trial court to find aggravating factors by a preponderance of the evidence, rather than presenting them to the jury for a determination beyond a reasonable doubt. See id. at ___, ___ S.E.2d at ___. The remedy applied in Allen for this “structural error” was remand for resentencing. Id.
     Our Supreme Court stated that its ruling in Allen was applicable to all cases “that are now pending on direct review or are not yet final.” Id. at ___, ___ S.E.2d at ___ (citing Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649 (1987)). In Griffith, the United States Supreme Court noted that “final” meant “a case in which a judgment of conviction had been rendered, the availability of appeal exhausted, and the time for petition for certiorari elapsed or a petition for certiorari finally denied.” 479 U.S. at 321 n.6, 93 L. Ed. 2d at 657 n.6. By defendant's preservation of this error and his case still pending review, or otherwise not final, upon the issuance of Allen, we see no reason not to apply Allen and remand defendant's convictions for resentencing.
    Defendant lastly argues that the short-form indictments failed to meet constitutional standards.    This same short-form indictment has been found constitutionally sound in State v. Wallace, 351 N.C. 481, 505, 528 S.E.2d 326, 342, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). It is not within our purview to review our Supreme Court.
    No error at trial, remanded for resentencing.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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