STATE OF NORTH CAROLINA
v
.
Stanly County
No. 02 CRS 4211-4226
ALFREDO CESMAS OCAMPO
Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.
Gregory A. Newman, for defendant.
LEVINSON, Judge.
Defendant (Alfredo Cesmas Ocampo) appeals from convictions for
crimes perpetrated against his daughter N.O. We hold that
defendant received a fair trial, free of prejudicial error.
The State's evidence presented at trial may be summarized as
follows: When N.O.'s family was living in Texas and N.O. was twelve
years old, defendant began having sexual intercourse with her. The
first time this occurred, defendant unzipped her shorts and
inserted his penis into her vagina. After this first occasion,
N.O. told her mother. In response, the mother wept. Defendant had
sexual intercourse with N.O. twice in Texas. After the family
moved to North Carolina, the defendant continued having sexual
intercourse with N.O. from the time she was twelve years of age in1997 until she left home at sixteen years of age in 2001. During
the course of these four years, defendant had intercourse with N.O.
between three and four times each month, ceasing periodically for
one or two months. Oftentimes, defendant rubbed N.O.'s breasts
underneath and outside her clothing before having sexual
intercourse with her. The incidents of abuse generally occurred
when N.O.'s mother was at work and the children were left at home
in defendant's care.
N.O. became pregnant by defendant and carried the baby for
eight and one half months, delivering 12 June 1998. N.O. was
twelve years of age when she became pregnant in the fall of 1997
and thirteen years of age when she delivered in June 1998.
Defendant had sexual intercourse with N.O. one or two times in
January 1998. As N.O.'s “stomach grew larger”, defendant stopped
having sexual intercourse with her for a few months. In
conversations with health care personnel and a DSS social worker at
the time of the baby's birth, N.O. denied defendant had sexually
abused her. The baby was sent to live with relatives in Mexico.
A few months after the birth of N.O.'s baby, defendant resumed
having sexual intercourse with N.O. approximately once each week.
Defendant would stop having sexual intercourse with N.O. for a
period of one or two months before resuming again. Defendant
threatened to kill N.O.'s mother's family if N.O. told anyone about
the abuse. Defendant also stated her mother would be sent to jail
and her siblings taken away if she informed others of the abuse. Defendant did not stop having sexual intercourse with N.O. until
she left home at sixteen years of age.
In November 2001, N.O. left the family's North Carolina home
with her cousin, staying first with relatives in various towns in
North Carolina, and then with other relatives in Mexico. In June
2002, N.O.'s maternal grandparents arranged for her to move to
Texas. In July 2002, N.O. returned with her sister O.O. to North
Carolina to report defendant's sexual abuse to police in Oakboro,
North Carolina. Until July 2002, N.O. had not told anyone, other
than her mother, that defendant sexually abused her.
O.O. testified that defendant sexually abused her. Defendant
would rub her breasts on top of and underneath her clothing.
Defendant also rubbed her “private” below her stomach under her
clothes with his hand. Once, when O.O. was in the fifth or sixth
grade, defendant pulled her skirt up, tried to pull her underwear
off, and attempted to force her legs open. Defendant stopped when
O.O. told him “God would punish him.” O.O. believed defendant was
attempting to have sexual intercourse with her. At the time, O.O.
had stayed home from school to care for her younger siblings;
O.O.'s mother was at work. O.O. further testified that defendant
began rubbing her breasts when she was ten years old while the
family was living in Texas. Defendant continued to rub her
breasts, approximately every weekend, after the family moved to
North Carolina. O.O. testified she also saw defendant rub the
breasts of her sisters N.O., P.O., and Q.O. on the outside of theirclothing. O.O. told her mother that defendant was touching her.
In response, her mother wept.
O.O. testified further that, on 3 July 2000, she heard N.O.
“screaming” from a room inside the house for defendant “not to hit
her”. O.O. ran out of the house, knocked on the window of the room
where N.O. and defendant were, and said that she was “going to tell
the police everything.” O.O. ran to the Oakboro police station.
There, she reported she was “scared her father was hitting her
sister.” Officer Terry DeRhodes escorted O.O. home, interviewed
various family members and, after asking O.O. whether she felt
safe, left the residence. Following this incident, O.O. no longer
felt safe living at home. She left the family permanently to live
with relatives, first in another town in North Carolina, and then
in Mexico.
After O.O. had been living in Mexico for over a year, N.O.
arranged for her to return to live with her and other relatives in
Texas. Once back in Texas, O.O. told her aunt she was worried
about the safety of her mother and siblings, who were then living
with defendant in North Carolina. O.O. and N.O. traveled with
their uncle and grandfather to North Carolina. On 29 July 2002,
O.O. and N.O. reported defendant's sexual abuse to the Oakboro
police. Until July 2002, O.O. had not informed anyone, other than
her mother, that defendant rubbed her breasts.
Officers Donald Whitley and Terry DeRhodes of the Oakboro
Police Department both testified regarding their investigation of
the abuse charges which give rise to the instant appeal. OfficerDeRhodes also testified to the events surrounding the July 2000
incident when O.O. first went to the Oakboro police department.
Social worker Lora Umberger testified about her role in
interviewing N.O. and O.O. pursuant to the investigation by the
Oakboro Police Department initiated in July 2002.
Defendant's evidence consisted largely of the testimony of
defendant and two additional witnesses. Defendant denied sexually
abusing his daughters. He denied forcing N.O. onto the bed,
spreading her legs, and inserting his penis into her vagina. He
denied touching his daughters' breasts. He denied fathering N.O.'s
baby. He stated he never had a good relationship with his wife's
family because they did not accept him as a son-in-law.
N.O.'s mother testified for defendant. She stated that she
had never seen defendant touch her daughters in an inappropriate
way. She did not know of any sexual abuse by him of the girls. A
third daughter, P.O., testified that statements she had previously
made to social worker Lora Umberger, that defendant had touched her
breasts on the outside of her clothing with his hand, were not
true. P.O. stated that defendant had never touched her
inappropriately and she had never seen him touch any of the other
children inappropriately.
Defendant was convicted of four counts of first degree
statutory rape of a child under the age of thirteen years, four
counts of statutory rape of a person of the age of thirteen years,
and eight counts of felony incest. From these convictions and
judgments, defendant appeals. _________________________
In his first argument on appeal, defendant contends defense
counsel's representation was so deficient that he was deprived of
his constitutional right to a fair trial. Defendant contends that
defense counsel's representation was deficient in that he (1)
failed to object to testimony regarding alleged sexual abuse by
defendant of N.O. and O.O. in Texas, (2) failed to make any pre-
trial motions in limine to preclude testimony from N.O. and O.O.
concerning defendant's alleged sexual abuse of them in Texas, and
(3) elicited damaging testimony in his cross-examination of N.O.
and O.O. regarding defendant's alleged sexual abuse of them in
Texas. For the reasons which follow, we disagree.
There is a “strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.”
Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694
(1984). A “stringent standard of proof” is required to
substantiate ineffective assistance of counsel claims. See State
v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871 (1974). “When a
defendant attacks his conviction on the basis that counsel was
ineffective, he must show that his counsel's conduct fell below an
objective standard of reasonableness.” State v. Braswell, 312 N.C.
553, 561-62, 324 S.E.2d 241, 248 (1985). Defendant must meet a
two-part test when arguing his counsel provided ineffective
assistance:
First, the defendant must show that
counsel's performance was deficient.
This requires showing that counsel
made errors so serious that counselwas not functioning as the “counsel”
guaranteed the defendant by the
Sixth Amendment. Second, the
defendant must show that the
deficient performance prejudiced the
defense. This requires showing that
counsel's errors were so serious as
to deprive the defendant of a fair
trial, a trial whose result is
reliable.
Id. (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
Defendant's ineffective assistance of counsel argument is
essentially based on the contention that trial counsel did not
consistently seek to preclude evidence of defendant's sexual abuse
of N.O. and O.O. in Texas on the grounds that such acts occurred
outside the jurisdiction where the acts giving rise to the
indictments arose.
(See footnote 1)
Defendant argues that the introduction of such
evidence impermissibly “inflame[d] the jurors' sense of moral
justice” and, in addition, confused the jurors, making it
“impossible to determine how . . . [to] make distinctions between
the acts committed by the [d]efendant in Texas and those in North
Carolina.”
First, we observe that the evidence which is the subject of
defendant's assertion of ineffective assistance fits squarely
within the allowances of Rule 404(b) of the North Carolina Rules ofEvidence. N.C.R. Evid. § 8C-404(b) (2003) (“Evidence of other
crimes, wrongs, or acts is . . . admissible [as] proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake. . . .”). “[T]he ultimate test for determining
whether such evidence is admissible is whether the incidents are
sufficiently similar and not so remote in time as to be more
probative than prejudicial[.]” State v. Boyd, 321 N.C. 574, 577,
364 S.E.2d 118 , 119 (1988) (citations omitted). Defendant makes
no argument that O.O.'s testimony should have been excluded because
the alleged acts of sexual abuse were too remote in time or that
the factual circumstances of the alleged acts against N.O. and O.O.
in Texas were too dissimilar from those occurring in North
Carlina.
(See footnote 2)
At the least, the evidence concerning the abuse of N.O. in
Texas helped demonstrate a continuing plan on the part of defendant
to abuse N.O. See State v. Hobson, 310 N.C. 555, 561, 313 S.E.2d
546, 549 (1984) (“[W]e have held admissible evidence which tends to
show prior offenses of the same kind committed by the defendant
with the prosecuting witness[.]”). Furthermore, the testimony
concerning acts of sexual abuse against O.O. in Texas had a number
of parallels and similarities to the acts of sexual abuse
perpetrated against N.O. for which he was being tried.
Consequently, O.O.'s testimony helped establish a common plan orscheme on the part of defendant. See State v. Goforth, 59 N.C.
App. 504, 506, 297 S.E.2d 128, 129 (1982), rev'd and remanded for
resentencing on other grounds, 307 N.C. 699, 307 S.E.2d 162 (1983)
(evidence defendant began sexually abusing his two other
stepdaughters as they reached puberty, and evidence of
nonconsensual intercourse with his eldest stepdaughter regularly
from the time she was twelve years old, was admissible to show
defendant's common scheme to “engage[] in nonconsensual sexual
relations with his stepdaughters as they matured physically, a
pattern of conduct embracing the offense charged.”).
We are wholly unpersuaded by defendant's argument that his
trial counsel's failure to seek to preclude evidence of abuse
against N.O. in O.O. occurring in Texas constituted ineffective
assistance of counsel. “[C]ounsel's failure to object to evidence
which is in fact admissible does not amount to deficient
representation.” State v. Frazier, 142 N.C. App. 361, 368, 542
S.E.2d 682 (2001) (citing State v. Lee, 348 N.C. 474, 492-93, 501
S.E.2d 334, 346 (1998)).
Moreover, defense counsel's failure to seek to preclude
evidence concerning defendant's abuse of N.O. and O.O. in Texas was
part of a trial strategy to discredit them.
The decisions on what witnesses to call,
whether and how to conduct cross-examination,
. . . what trial motions should be made, and
all other strategic and tactical decisions are
the exclusive province of the lawyer after
consultation with his client. Trial counsel
are necessarily given wide latitude in these
matters. Ineffective assistance of counsel
claims are not intended to promote judicialsecond-guessing on questions of strategy as
basic as the handling of a witness.
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) (internal quotation marks omitted).
Defense counsel repeatedly questioned both N.O. and O.O.
concerning whether they told anyone of the alleged sexual abuse,
specifically while they were living in Texas. Both denied telling
anyone about the alleged abuse in Texas. While the Ocampo family
was living in Texas, the girls' grandparents lived nearby. Defense
counsel's strategy was to imply that, had the alleged acts in Texas
occurred, the girls would have told their grandparents. Attempting
to discredit a witness's testimony is a reasonable trial strategy.
“Where the strategy of trial counsel is 'well within the range of
professionally reasonable judgments,' the action of counsel is not
constitutionally ineffective.” State v. Campbell, 142 N.C. App.
145, 541 S.E.2d 803 (2001) (quoting Strickland, 466 U.S. at 699, 80
L. Ed. 2d at 701). Defense counsel had wide latitude to determine
the manner in which he presented evidence and conducted cross-
examinations. We will not engage in “second-guessing on questions
of strategy[.]” Milano, 297 N.C. at 495, 256 S.E.2d at 160. This
assignment of error is overruled.
_____________________________
Defendant next argues that the trial court erred in allowing
the State to introduce evidence of other sexual acts allegedly
committed by defendant against his daughters O.O., P.O., and Q.O.in violation of Rule 404(b) of the North Carolina Rules of
Evidence.
N.C.R. Evid. 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident. . . .
The trial court allowed a voir dire examination of O.O.
regarding her testimony that defendant sexually abused her, P.O.,
and Q.O. O.O. testified on voir dire that defendant began rubbing
her breasts when she was ten years old. Defendant would rub her
breasts under her clothes and unbutton her pants to rub her
“private” below her stomach with his hand. Once, when her mother
was at work, defendant pulled up O.O.'s skirt, tried to remove her
underwear, and tried to pry her legs open. Defendant stopped when
O.O. stated, “God would punish him for everything he was doing.”
O.O. believed defendant was attempting to have sexual intercourse
with her. O.O. observed defendant rub the breasts of her sisters
P.O. and Q.O. when they were approximately ten or eleven years of
age. The trial court admitted O.O.'s testimony for the purpose of
proving defendant's opportunity, intent, and plan to sexually abuse
his daughters, including N.O.
Both this Court and our Supreme Court have held that the
testimony of siblings concerning the perpetration of similar sex
acts by their father against them is admissible to show a commonscheme or plan of sexual abuse. See State v. DeLeonardo, 315 N.C.
762, 771, 340 S.E.2d 350, 357 (1986) (evidence relating to father's
sexual activity with his three-year-old daughter admissible to
establish common plan or scheme on the part of father to sexually
abuse his children); State v. McCarty, 326 N.C. App. 782, 785, 392
S.E.2d 359, 361 (1990) (testimony of victim's half-sister of
similar sexual abuse was properly admitted to show father's common
scheme or plan to sexually abuse both stepdaughter and daughter);
State v. Jacob, 113 N.C. App. 605, 608, 439 S.E.2d 812, 813 (1994)
(evidence of sister's similar testimony regarding sexual abuse by
father was properly admitted to show a common plan or scheme of
sexual abuse). Here, the sexual acts defendant allegedly
perpetrated against N.O. were similar in that he began rubbing the
breasts of all four girls when they reached ten to twelve years of
age; he rubbed the breasts of N.O. and O.O on the outside of and
underneath their clothing; rubbed the breasts of P.O. and Q.O. on
the outside of their clothing; and had sexual intercourse with N.O.
and attempted to do the same with O.O. Much of defendant's abuse
occurred when the girls' mother was at work and the children were
left at home in his care.
The trial court did not err by admitting evidence of other
sexual acts allegedly committed by defendant against O.O., P.O.,
and Q.O. This assignment of error is overruled.
______________________________ Defendant's final argument is that the trial court erred by
not declaring a mistrial ex mero motu after learning that witness
P.O. spoke to a juror outside of the courtroom during the trial.
On the second day of jury deliberations, the bailiff informed
the trial court that P.O. spoke with a juror a few days earlier.
The trial court called the juror into the courtroom and questioned
her on the record regarding what transpired between her and P.O.
According to the juror, P.O. entered the women's restroom as
she was washing her hands and preparing to leave. P.O. asked her
to tell her “what was going on” and inquired about whether the jury
had decided “what they were gonna [sic] do with her father.” The
juror told P.O. that she “[could not] discuss this with her.” P.O.
began to weep. As the juror walked over to the door to leave the
restroom, P.O. moved between her and the door and wept harder,
begging the juror to tell her what the jury had decided. P.O. said
she “couldn't go back to Texas until she found out.” Again, the
juror stated she could not discuss this with her. P.O. blocked the
door “for a few more minutes,” then moved aside at the juror's
request and allowed her to exit. The following inquiry was
conducted by the trial court on the record:
THE COURT: Have you discussed this with the
other jurors?
[JUROR]: No.
THE COURT: They don't know about this?
[JUROR]: No.
THE COURT: Well, I guess the really important
question is, do you think that this encounterwith [P.O.] would affect your ability to be
fair and impartial in this case at all?
[JUROR]: No.
THE COURT: She didn't discuss any facts about
the case?
[JUROR]: No.
THE COURT: Just wanted you to tell her--
[JUROR]: Yes.
THE COURT: --what was happening?
[JUROR]: She basically just wanted to know
what was going on before she -- I guess she
was going back home or whatever.
THE COURT: Do either of the attorneys want me
to ask her any additional questions?
[DEFENSE COUNSEL]: I don't, if Your Honor
please.
THE COURT: Ms. Edwards?
[PROSECUTOR]: No. No, Your Honor.
THE COURT: All right. Thank you, ma'am. You
can go back. And I would appreciate if you'd
not tell the other jurors about this.
[JUROR]: Oh, I won't.
(Juror exits the courtroom.)
THE COURT: Are both of the attorneys satisfied
with the proceeding of jury deliberations?
[DEFENSE COUNSEL]: If Your Honor please, I am.
THE COURT: Ms. Edwards?
[PROSECUTOR]: (Nods head affirmatively.)
THE COURT: Is that a yes?
[PROSECUTOR]: Yes, ma'am. I'm sorry.
THE COURT: Go ahead and bring the jury in,
please.
N.C.G.S. § 15A-1063(1) (2003) provides: “Upon . . . his own
motion, a judge may declare a mistrial if: (1)[i]t is impossible
for the trial to proceed in conformity with law[.]” “This statute
allows a judge . . . to grant a mistrial where he could reasonably
conclude that the trial will not be fair and impartial.” State v.
Lyons, 77 N.C. App. 565, 566, 335 S.E.2d 532, 533 (1985). “An
order of a mistrial on a motion of the court is 'addressed to the
sound discretion of the trial judge, and his ruling on the motion
will not be disturbed on appeal absent a gross abuse of that
discretion.'” Id. at 566, 335 S.E.2d at 533-34 (quoting State v.
Malone, 65 N.C. App. 782, 785, 310 S.E.2d 385, 387 (1984)
(citations omitted)). “[C]ontact between a juror and an outside
influence may be improper”. State v. Roache, 358 N.C. 243, 275,
595 S.E.2d 381, 403 (2004) (citing State v. Willis, 332 N.C. 151,
172-73, 420 S.E.2d 158, 168 (1992), and State v. Barnes, 345 N.C.
184, 224-25, 481 S.E.2d 44, 66 (1997)).
In the event of some contact with a juror it
is the duty of the trial judge to determine
whether such contact resulted in substantial
and irreparable prejudice to the defendant.
It is within the discretion of the trial judge
as to what inquiry to make.
Willis, 332 N.C. at 173, 420 S.E.2d at 168 (citations omitted).
“The scope of the inquiry is within the trial judge's discretion.”
State v. Garner, 340 N.C. 573, 601, 459 S.E.2d 718, 733 (1995)
(quoting State v. Harrington, 335 N.C. 105, 436 S.E.2d 235 (1993)). Determining the credibility of the juror during the inquiry is
within the trial court's discretion as well. See Barnes, 345 N.C.
at 225, 481 S.E.2d at 66 (“The trial court was in a position to
observe and scrutinize the juror's credibility with respect to the
juror's response to the question and was satisfied that the juror
had not been tainted by the [outside] contact[.]”)
In the instant case, the trial court immediately informed
trial counsel when it discovered that a juror had contact with a
witness. The trial court questioned the juror on the record
regarding the outside contact she had with the witness and the
potential impact, if any, such contact would have on her ability to
continue to serve on the jury. The juror described the nature and
extent of her contact with P.O. and stated that she had refused to
speak to P.O. about the case. In addition, the juror assured the
trial court she had not discussed the incident with other jurors
and that the encounter would not affect her ability to be fair and
impartial. The trial court asked the attorneys if they had any
questions for the juror and, once the juror was excused from the
courtroom, asked if they had any objection to the jury continuing
its deliberations with the juror. Neither defense counsel nor the
State had any questions for the juror and lodged no objections to
the jury continuing its deliberations with the juror. Neither
defense counsel nor the State moved for a mistrial pursuant to
N.C.G.S. § 15A-1061 (2003). Under these circumstances, the trial court did not abuse its
discretion in failing to declare a mistrial ex mero motu. This
assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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