An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-435

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 03 CRS 051209
TYRONE LAMONT FOWLER
        Defendant

    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
    Initials have been used throughout to protect the identity of the juveniles.
Footnote: 2
    “Structural error is a rare form of constitutional error resulting from structural defects in the constitution of the trial mechanism which are so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” State v. Garcia, 358 N.C. 382, 409, 597 S.E.2d 724, 744 (2004) (citations and internal quotations omitted), cert. denied, __ U.S. __, 161 L. Ed. 2d 122 (2005). “Such errors infect the entire trial process and necessarily render a trial fundamentally unfair[.] For this reason, a defendant's remedy for structural error is not dependant upon harmless error analysis; rather, such errors are reversible per se.” Id.

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