Appeal by defendant from a judgment dated 27 May 2004 by Judge
W. Osmond Smith in Wake County Superior Court. Heard in the Court
of Appeals 19 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.
Kathryn L. VandenBerg for defendant-appellant.
BRYANT, Judge.
Tyrone Lamont Fowler (defendant) appeals a judgment dated 27
May 2004 entered consistent with a jury verdict of guilty of one
count of first-degree sexual offense. For the reasons below, we
find no error.
Facts and Procedural History
On 23 September 2003, defendant was indicted for first-degree
sexual offense against his daughter, D.B.
(See footnote 1)
, between the dates of
December 2000 and December 2002; and for first-degree sexual
offense against his step-daughter, I.B., between the dates of
January 1996 and December 2002. Defendant was born on 25 October1976, and was 26 years old at the time these incidents were
reported. I.B. was 13 years old when she testified at trial. D.B.
was 11 years old when she testified at trial.
At trial, I.B. testified defendant once touched her “privates”
underneath her underwear, but was unable to provide specific
details about the circumstances of that offense. I.B. also
testified to three other incidents of inappropriate touching. D.B.
testified that defendant once touched her when he shouldn't have,
when she was ten years old and lived on Poole Road.
Social Worker, Lisa Sellars interviewed both girls a few days
after the incidents were reported to her. During her interview
with I.B., I.B. did not disclose any incidents of sexual abuse.
Dr. Vivian Denise Everette directs the Child Sexual Abuse Team
at Wake Medical Center, and evaluated both D.B. and I.B. by
conducting an interview and physical examination. During Dr.
Everette's interview with I.B., I.B. said that defendant had
touched her privates with his hands and his nails more than ten
times and described two specific incidents. Dr. Everette found no
signs of physical or sexual abuse in her examinations of D.B and
I.B.
Sergeant Frattini with the Raleigh Police Department
interviewed defendant at the jail after he was arrested for these
offenses. Defendant waived his right to a lawyer and spoke with
Sergeant Frattini, denying the charges throughout the interview.
This matter came to trial on 25 May 2004, at the criminal
session of the Wake County Superior Court, the Honorable W. OsmondSmith presiding. On 27 May 2004, a jury found defendant guilty of
first-degree sexual offense (03 CRS 51209) as to I.B. and not
guilty of first-degree sexual offense (03 CRS 51208) as to D.B.
Following the verdict, the trial court sentenced defendant to a
term of imprisonment of 336 to 413 months. Defendant appeals.
_________________________
Defendant raises three issues on appeal: (I) whether there was
sufficient evidence as a matter of law to show defendant committed
the crime of first-degree sexual offense; (II) whether defendant
was deprived of effective assistance of counsel when his trial
counsel failed to object to evidence of his prior criminal history;
and (III) whether the trial court erred in closing the courtroom to
the public. For the following reasons, we overrule defendant's
arguments.
I
Defendant first contends the evidence was insufficient to
support the charge of first-degree sexual offense against I.B. In
ruling on a motion to dismiss, the trial court is to consider the
evidence in the light most favorable to the State, and the State is
entitled to every reasonable inference to be drawn from that
evidence.
State v. Bell, 311 N.C. 131, 138, 316 S.E.2d 611, 615
(1984). The trial court must determine if the State has presented
substantial evidence of each essential element of the offense.
State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
“Evidence is substantial if it is relevant and adequate to convincea reasonable mind to accept a conclusion.”
State v. Parker, 354
N.C. 268, 278, 553 S.E.2d 885, 894 (2001).
For a charge of first-degree sexual offense to withstand a
motion to dismiss, there must be substantial evidence that
defendant committed a sexual act with the victim.
State v. Hicks,
319 N.C. 84, 89, 352 S.E.2d 424, 427 (1987). A “sexual act” is
defined by statute as “cunnilingus, fellatio, analingus, or anal
intercourse, . . . [or] the penetration, however slight, by any
object into the genital or anal opening of another person's body ..
. . .” N.C. Gen. Stat. § 14-27.1(4) (2003). Where the minor
victim's testimony was that the defendant “put his penis in the
back of me,” and where there was no corroborating testimony that
anal intercourse actually occurred, our Supreme Court has held that
as a matter of law, because of the ambiguity of the victim's
testimony, the evidence was insufficient to support a verdict on
first-degree sexual offense.
Hicks, 319 N.C. at 90, 352 S.E.2d at
427. Defendant argues, as in
Hicks, the State did not present
substantial evidence that he committed a sexual act against I.B.
Defendant's reliance is misplaced.
At trial, I.B. testified in part as follows:
Q. Now, has -- has [defendant] ever touched
you under your underwear?
A. Yes.
. . . .
Q. And how do you know that he touched you
underneath your underwear?
A. Because he did it to me.
Q. Okay. And what body part of his did he
touch you with underneath your underwear?
A. His hand.
. . . .
Q. Now, you know -- do you know that your
private has an inside and an outside?
A. Yes.
Q. Okay. Did he touch you with his hands on
the inside or outside of your privates?
A. The inside.
This is clear testimony that defendant committed a sexual act
involving penetration of the victim which would constitute the
crime of first-degree sexual offense. I.B. testified that
defendant touched her with his hand underneath her underwear on the
inside of her “privates.” I.B.'s testimony is not ambiguous as to
the touching that occurred, which is sufficient to establish the
sexual act of “the penetration, however slight, by any object into
the genital or anal opening of another person's body” pursuant to
N.C. Gen. Stat. § 14-27.1(4).
See State v. Oliver, 85 N.C. App. 1,
23-24, 354 S.E.2d 527, 540 (1987). The State has submitted
substantial evidence of each essential element of first-degree
sexual offense. This assignment of error is overruled.
II
Defendant next argues he was deprived of effective assistance
of counsel when his trial counsel failed to object to evidence that
defendant had a prior criminal history. To obtain relief for
ineffective assistance of counsel, a defendant must demonstratethat 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);
Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693 (1984). This requires a showing that:
(1) counsel's performance was deficient; and (2) that the deficient
performance prejudiced the defense.
Id. Defendant must show
“there is a reasonable probability that, but for counsel's
ineffective performance, the result of the proceedings would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland,
466 U.S. at 694, 80 L. Ed. 2d at 698.
In the instant case, defendant assigns error to the fact that
his trial counsel did not object to two references to defendant's
criminal history. The fact that defendant had a criminal history
was first introduced through defense counsel. On
cross-examination, defense counsel extensively questioned Police
Sergeant Frattini about how she determined whether to file charges
against defendant. In the course of this exchange, he elicited the
following information:
A: ... I felt there was enough probable cause
to file warrants in this case against the
defendant.
Q: And that was based on both the DSS --
A: Numerous stuff: DSS, CME, my own - you
know, I have access to criminal history. I
have access to previous. I have access to a
lot of stuff.
The fact that defendant had a criminal history also came out during
the direct testimony of Social Worker Lisa Sellars: A: ... And the concerns actually about the
protection plan being violated came up during
the child medical evaluation.
Q: What do you mean?
A During -- specifically during [I.B.'s]
interview during the medical evaluation, she
made disclosures of the sexual abuse but also
disclosures that she had had contact just
prior to the evaluation with Mr. Fowler. And
he had talked with her about the disclosures
and about people not believing him based on
his criminal history.
Defendant's trial counsel did not object to Sellars' testimony.
These brief mentions of the words “criminal history” made
without objections are not sufficient to support an argument that
defendant was deprived of effective assistance of counsel. Looking
at the entire context of her testimony on cross-examination,
Frattini's comment on her “access to criminal history” related to
the methods and sources of information used during an investigation
to determine whether the filing of charges against a particular
person is warranted. Frattini was not speaking about defendant's
criminal history, or even that defendant had a criminal history,
she was merely listing the sources of information she uses to
determine whether charges should be filed against a person.
Furthermore, defendant's trial counsel may not have objected to
Sellars' brief mention that defendant had a criminal history so as
to not draw attention to that fact. Defendant cannot establish
that his trial counsel's performance was deficient as required
under
Strickland and
Braswell. This assignment of error is
overruled.
III
Defendant lastly argues the trial court erred in closing the
courtroom to the public without the procedural safeguards required
by the Sixth Amendment. At trial, at the request of the
prosecutor, the courtroom was closed during the testimony of the
two minor children due to the sensitive nature of their testimony.
Defendant had no objection to closing the courtroom during the
testimony of the minor children. The courtroom was ordered closed
to spectators, excluding the mother, other family members, the
investigators and court personnel during the minors' testimony.
We first note that in his assignment of error defendant
asserted “[t]he trial court committed plain error in clearing the
courtroom . . . .” However, in his brief, defendant failed to
argue plain error, instead asserting the trial court's error was
structural error and prejudicial
per se.
(See footnote 2)
Therefore, defendant
has not properly preserved this issue for review and has waived
appellate review of this assignment of error.
See State v. Nobles,
350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999);
State v. King,
342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995). Furthermore, “[a]
constitutional issue not raised at trial will generally not be
considered for the first time on appeal.”
Anderson v. Assimos, 356N.C. 415, 416, 572 S.E.2d 101, 102 (2002);
see also, State v.
Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004) (“Structural
error, no less than other constitutional error, should be preserved
at trial.”),
cert. denied, __ U.S. __, 161 L. Ed. 2d 122 (2005).
This assignment of error is dismissed.
No error.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
Footnote: 1