STATE OF NORTH CAROLINA
v. Nos. 01 CRS 51028
01 CRS 51029
FRANKLIN ALLEN GURGANIOUS, 02 CRS 4565
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
William D. Spence, for defendant-appellant.
Defendant Franklin Allen Gurganious appeals from his conviction on three counts of committing indecent liberties. He primarily argues on appeal (1) that his trial attorney provided ineffective assistance of counsel in not moving to sever the charges and (2) that testimony of the State's rebuttal witnesses that defendant had inappropriately touched them should have been excluded. After reviewing the record, we can find that the trial court was not required to sever the charges and, therefore, hold that trial counsel did not provide ineffective assistance of counsel in failing to move to sever. With respect to the rebuttal witnesses, their testimony was properly admitted under Rule 404(a) of the North Carolina Rules of Evidence in order to rebut the
testimony of defense witnesses. Finding no error on these primary
issues and no merit in defendant's remaining assignments of error,
we hold that defendant received a trial free from prejudicial
grandmother and defendant that gave rise to the charges filed
During Thanksgiving weekend in 1999, when A.A. was about twelve and a half years old, defendant took her deer hunting. As they were sitting in a deer stand on defendant's property, defendant grabbed A.A.'s thigh and slowly slid his hand up to within a couple inches of her crotch area. She jerked away so defendant's hand fell off. A.A. testified that she felt "[u]ncomfortable, disgusted, violated."
In early July 2001, D.A., who was age 15, was sleeping on her back on the couch in her grandmother's house. Early in the morning, while D.A. was still asleep, defendant came in, lay on top of her, sucked her ear, and kissed her neck. Defendant stayed on top of her for about ten minutes. She started acting as if she were waking up so that defendant would leave.
Subsequently, in late July 2001, A.A. spent the night at her grandparents' house on two consecutive nights. The first night, A.A. was sleeping on her stomach in the guestroom, but awoke around midnight when she felt someone on top of her. Defendant had his hand under her shirt and was rubbing her stomach. A.A. could feel his erection as he lay on her. After A.A. told defendant that she was feeling sick, defendant said that he loved her and kissed her on the lips. A.A. tried to mention the incident to her grandmother, but her grandmother told A.A. to leave the house if she was going to say something. On the next night, defendant
repeated his conduct, but A.A. pretended she was asleep, and
defendant ultimately left.
A.A. was withdrawn when she arrived home and, a couple of days later, she told her mother what had happened. A.A. expressed concern that she would get her grandfather in trouble, that her grandmother would be mad at her, and that she would lose her family. Her mother then sat down with D.A. as well and learned what had happened to her. The girls' mother decided to report the incidents and the Gurganious family subsequently cut off contact with the girls and their mother.
Defendant called his wife as a witness, who denied ever hearing complaints about defendant's behavior with A.A. and D.A. and testified that defendant treated them appropriately. He also called a series of other witnesses to challenge A.A.'s, D.A.'s, and their mother's credibility. Finally, he called three female witnesses to testify that he had always hugged and kissed them in a manner they deemed appropriate. As rebuttal witnesses, the State called two women who had had contact with defendant in their adolescent years. Both women testified that defendant had touched them inappropriately during that time.
Defendant was charged with two counts of indecent liberties as to A.A. and one count of indecent liberties as to D.A. The record does not reflect what transpired in the first trial on these charges. The jury in the second trial found defendant guilty on all three charges. The trial judge consolidated the two counts involving A.A. and imposed a sentence of 17 to 21 months
imprisonment. The judge imposed a second, consecutive sentence of
17 to 21 months for the offense involving D.A.
687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)). If a
reviewing court "can determine at the outset that there is no
reasonable probability that in the absence of counsel's alleged
errors the result of the proceeding would have been different, then
the court need not determine whether counsel's performance was
actually deficient." Id. at 563, 324 S.E.2d at 249.
In arguing that he was prejudiced by the joinder of the charges and, therefore, suffered prejudice from his counsel's alleged ineffectiveness, defendant asserts (1) that he may have wished to testify in some but not all of the cases and (2) that consolidation of the charges could have led the jury to believe that if defendant committed one offense, he likely committed them all. We address each argument separately.
With respect to defendant's ability to testify, defendant does not explain what might have caused him to testify in one trial but not the other. In State v. Davis, 289 N.C. 500, 508, 223 S.E.2d 296, 301, vacated in part on other grounds, 429 U.S. 809, 50 L. Ed. 2d 69, 97 S. Ct. 47 (1976), our Supreme Court held that an identical unexplained assertion was insufficient to establish prejudice from a consolidation of charges:
Defendant argues that he was prejudiced by the consolidation because without the consolidation of charges he would have had the election of testifying in one case without being forced to testify in the other. . . . We are unable to discern any material reason why it would be to defendant's advantage to testify in one case and not the other. Certainly his unsupported statement of possible prejudice is not sufficient to show abuse of discretion on the part of the trial
judge in allowing the motion to consolidate
the charges for trial.
Id. In this case, as in Davis, we have been unable to identify any material reason that it would be advantageous to defendant to testify in the trial involving one sister, but not in the trial involving the other sister. In addition, the State has pointed out that defendant has a 1993 felony conviction for indecent liberties and this conviction would likely have been admissible under Rule 609 of the Rules of Evidence (providing that evidence of a felony conviction is admissible if less than 10 years old) if defendant chose to testify in one of the cases. Since defendant has offered no explanation why he might choose to testify given the existence of this conviction or why he might choose to testify in only one case, his bald assertion that he might testify, without more, is insufficient to establish prejudice from the consolidation.
Defendant's second suggestion of prejudice, regarding the impact of consolidation on the jury, is likewise without merit. This suggestion presumes that evidence of one charge would not be admissible at the trial of the other. Under Rule 404(b) of the Rules of Evidence, however, even if the trials were severed, defendant's sexual acts with one sister would be admissible in the trial involving the other sister. See State v. Smith, 152 N.C. App. 514, 527, 568 S.E.2d 289, 297-98 (evidence of sexual activity with a 15-year-old girl was admissible under Rule 404(b) to show an absence of mistake, plan, scheme, or design in connection with charges of indecent liberties and first degree sex offense with respect to a 12-year-old girl), appeal dismissed and disc. review
denied, 356 N.C. 623, 575 S.E.2d 757 (2002); State v. Starner, 152
N.C. App. 150, 153, 566 S.E.2d 814, 816 (evidence of defendant's
sexual assault against his daughter was admissible in trial arising
out of assault on step-daughter to show a common plan or scheme by
defendant of abusing young, female family members), cert. denied,
356 N.C. 311, 571 S.E.2d 209 (2002).
In State v. Bowen, 139 N.C. App. 18, 30, 533 S.E.2d 248, 256 (2000), this Court held:
[Defendant's] argument to this Court is based on the idea that "the jury apparently lumped all of the various charges together, to [defendant's] prejudice." However, defendant suggests no alternate outcome where the jury would have heard evidence of the other charges due to its being admitted under 404(b), but where the charges were not joined; neither do we find evidence in the record to show that the jury may have come to a different conclusion had the charges not been consolidated.
The present case is directly analogous.
Because of the likely admissibility of the evidence of each child in the other child's trial, defendant has shown no prejudice from consolidation. Accordingly, defendant has failed to satisfy the prejudice prong under Strickland to establish ineffective assistance of counsel for failure to move to sever the charges.
witnesses was established by transcript, we find no abuse of
discretion in the denial of defendant's motion.
Both Rule 615 of the Rules of Evidence and N.C. Gen. Stat. § 15A-1225 (2003) provide that a trial court may order witnesses sequestered to prevent them from hearing the testimony of other witnesses. "'The aim of sequestration is two-fold: First, it acts as a restraint on witnesses tailoring their testimony to that of earlier witnesses, and second, it aids in detecting testimony that is less than candid.'" State v. Johnson, 128 N.C. App. 361, 370, 496 S.E.2d 805, 811 (1998) (quoting State v. Harrell, 67 N.C. App. 57, 64, 312 S.E.2d 230, 236 (1984)), cert. denied, 350 N.C. 842, 538 S.E.2d 581 (1999). "'A ruling on a motion to sequester witnesses rests within the sound discretion of the trial court, and the court's denial of the motion will not be disturbed in the absence of a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.'" State v. Hyde, 352 N.C. 37, 43, 530 S.E.2d 281, 286 (2000) (quoting State v. Call, 349 N.C. 382, 400, 508 S.E.2d 496, 507-08 (1998)), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775, 121 S. Ct. 862 (2001).
Here, the trial judge denied defendant's motion to sequester after confirming that defendant had a transcript of the witnesses' testimony in the prior trial and concluding that the testimony of witnesses was therefore "staked out." Because counsel for defendant could use the transcript to impeach the witnesses with any inconsistencies, the trial judge acted within his discretion in denying defendant's motion to sequester. State v. Van Cross, 293
N.C. 296, 299, 237 S.E.2d 734, 737 (1977) (the fact that defendant
had prior witness statements with which to impeach any
inconsistencies in witness testimony meant the trial court did not
abuse its discretion in denying a motion to sequester).
troop. The Court held that testimony of a scout member about
sexually-related incidents during a very remote time period "was
proper rebuttal testimony." Id.
Here, defendant chose to present character evidence of his appropriate behavior with three of his nieces. Each of them testified that she had stayed at defendant's home when she was young and that he had never touched her in an inappropriate manner. In response, the State called two women as rebuttal witnesses. The first, age 41 at trial, testified that she had contact with defendant when she was a teenager working in tobacco along with defendant. She testified that defendant touched her breasts and buttocks while hugging her. The second, age 39 at trial, also testified that defendant would touch her breasts and buttocks while hugging her from age 11 into her teenage years.
Defendant opened the door to the prosecution's character evidence by offering evidence of his good character with respect to young women and girls. As in Fultz, the State was then entitled to offer evidence to rebut defendant's character trait evidence under Rule 404(a). See also State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (once defendant introduced evidence of his reputation for non-violence, the State was entitled to elicit evidence about defendant's violence in his marriage), cert. denied, 531 U.S. 1019, 148 L. Ed. 2d 498, 121 S. Ct. 582 (2000).
As the rebuttal testimony was properly admitted, we find neither plain error nor ineffective assistance of counsel. See State v. Lee, 348 N.C. 474, 492, 501 S.E.2d 334, 345 (1998) ("Since
we concluded that this evidence was admissible, the defense
attorney's failure to object to it cannot constitute ineffective
victim, (3) he willfully took or attempted to
take an indecent liberty with the victim, (4)
the victim was under 16 years of age at the
time the alleged act or attempted act
occurred, and (5) the action by the defendant
was for the purpose of arousing or gratifying
State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987). Defendant asserts that the State failed to present sufficient evidence on either the third or fifth of these required elements.
As to the third element, defendant argues that the incidents charged in this case do not rise to the level of indecent liberties. "'Indecent liberties' are defined as 'such liberties as the common sense of society would regard as indecent and improper.'" State v. McClees, 108 N.C. App. 648, 653, 424 S.E.2d 687, 690 (1993) (quoting Black's Law Dictionary 768 (6th ed. 1990)), disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993). In the present case, the State presented the victims' testimony that defendant lay on top of A.A. and kissed her while she could feel his erection, he slowly moved his hand up toward A.A.'s crotch area while they were in a deer stand, and he lay on top of D.A. while sucking her ear and kissing her neck. Such acts with children are properly categorized as "immoral, improper, or indecent" and, therefore, indecent liberties. State v. Banks, 322 N.C. 753, 767, 370 S.E.2d 398, 407 (1988) (adult's actions of kissing child victims in bed by putting his tongue in their ears, noses, and mouths constituted "immoral, improper, or indecent" acts under the indecent liberties statute).
prejudice in trial counsel's failure to renew the motion to dismiss
and defendant's claim of ineffective assistance of counsel fails.
Judges LEVINSON and THORNBURG concur.