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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. MELVIN DWIGHT SMITH
Filed: 7 November 2006
1. Indecent Liberties; Sexual Offenses
_unanimous verdict_more incidents than
Defendant's conviction for sexual misconduct was by a unanimous jury, even though he
argued that there was testimony of more incidents than there were individual charges, where the
instructions and the verdict sheets were clear as to what incident corresponded to each charge.
2. Sexual Offenses_indictment_amendment_dates_no error
There was no error in allowing the State to amend the dates alleged on indictments for
defendant's sexual misconduct with his daughter where defendant was neither misled nor
surprised at the nature of the charges, and did not raise an alibi defense.
3. Indecent Liberties; Sexual Offenses_generic language_statutory
Indictments couched in the language of the statutes are sufficient to charge statutory
offenses. The indictments in this case, for statutory sexual offense and indecent liberties, were
sufficient even though defendant argued that they were generic and did not allege the sexual acts
4. Sexual Offenses_statutory sexual offense_attempt included
Upon the trial of any indictment, the prisoner may be convicted of an attempt to commit
the crime charged; here an indictment for statutory sexual offense was sufficient to support a
conviction for attempted statutory sexual offense. N.C.G.S. § 15-570.
5. Indecent Liberties_evidence sufficient
The evidence was sufficient to support a conviction for taking indecent liberties.
6. Sexual Offenses_evidence sufficient
The evidence was sufficient to support a conviction for statutory sexual offense.
7. Appeal and Error_denial of motion in limine--failure to object at trial_Rule 103
then presumed constitutional
The denial of a motion to suppress an inculpatory statement was reviewed on appeal even
though defendant failed to renew his objection at trial because Rule 103 of the Rules of Evidence
was presumed constitutional at the time of trial.
8. Confessions and Incriminating Statements_defendant not in custody_statement
Defendant's motion to suppress his inculpatory statements to the police was properly
denied. There was competent evidence to support the court's findings, which supported itsconclusions, that defendant was not in custody for Miranda purposes and that his statements were
9. Criminal Law_closing courtroom during victim's testimony_no objection by
The trial court did not err in the prosecution of defendant for sexual offenses against his
daughter by closing the courtroom during her testimony. The trial judge spent quite some time
questioning people about why they were present and clearing the courtroom; defense counsel had
the opportunity to object but did not.
10. Evidence_sexual offense victim's testimony_mother's affair_admissibility
In the prosecution of defendant for sexual offenses against his daughter, the testimony of
a detective that the victim had said that her parents had had problems and that her mother had
been fooling around and then [she] was born was relevant and not unduly prejudicial.
11. Appeal and Error_preservation of issues_Confrontation Clause_raised for first time
on appeal_not considered
A Confrontation Clause claim raised for the first time on appeal was not considered.
12. Constitutional Law_assistance of counsel_not ineffective
Defendant did not receive ineffective assistance of counsel where his attorney did not
request recordation of the entire trial and did not object to admission of his statements to the
police after filing an earlier pretrial motion to suppress.
Appeal by defendant from judgments entered 14 July 2005 by
Judge L. Todd Burke in Ashe County Superior Court. Heard in the
Court of Appeals 21 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
M. Alexander Charns for defendant appellant.
Melvin Dwight Smith (defendant) appeals judgments entered
after a jury verdict of guilty of first-degree sex offense,
attempted first-degree sex offense, and taking indecent liberties. We determine there was no error.
On 12 July 2004, defendant was indicted for three counts of
statutory sexual offense and three counts of taking indecent
liberties with a minor. The case was tried at the 11 July 2005
Criminal Session of Ashe County Superior Court.
The State presented evidence at trial which tended to show the
following: K.S. is the daughter of defendant. K.S. and defendant
had a good relationship until conflict arose between them regarding
K.S.'s relationship with her boyfriend. After that, defendant
began abusing K.S., and the abuse usually occurred on Saturdays
when K.S.'s mother was not at home.
K.S. testified to multiple incidents of abuse by defendant.
The first incident occurred when defendant came into K.S.'s bedroom
while K.S. was using her computer. Defendant came up behind K.S.,
put his hand in her pants, and inserted his fingers inside her.
K.S. stated that she fell off the chair and told defendant to
The next incident took place while K.S. was driving a car and
defendant was riding in the car. Defendant ran his hand up K.S.'s
leg and tried to get into her pants, but K.S. leaned against the
steering wheel to not allow defendant to do so.
K.S. also testified about another incident that occurred in
her bedroom. Defendant entered K.S.'s bedroom while she was using
the computer. Defendant sat on her bed and asked her if she knew
how to put on a condom. Defendant demonstrated how to put on acondom, exposing his erect penis to K.S. as he did so.
Another incident occurred in the bathroom. Defendant entered
the bathroom when K.S. was getting ready to take a shower.
Defendant tried to show K.S. his private part, and K.S. stabbed
defendant with tweezers.
K.S. testified to a fifth incident that took place in her
parent's bedroom. K.S. went into their bedroom to get batteries.
Defendant pushed her down on the bed, said something sexual to her,
and tried to take her pants off. K.S. told defendant she had her
period and he stopped.
K.S. told the former minister of her family's church that
defendant had touched her in a sexual manner. The minister referred
K.S. to social services.
Detective Carolyn Gentry of the Ashe County Sheriff's
Department received calls expressing concern that K.S. was being
sexually abused by defendant and had also been beaten. As a
result, Detective Gentry went to K.S.'s school on 19 February 2004
to check on her. K.S. described to Detective Gentry defendant's
sexual abuse of her. K.S. then described to Angie Allen, a DSS
child protective services worker, defendant's sexual abuse of her.
Detective Gentry asked defendant and his wife to come to the
Sheriff's Department on 20 February 2004. They agreed and drove
there in their own car. Detective Gentry talked to defendant's wife
first, and then talked to defendant. Ms. Allen was also present.
Defendant admitted he put his fingers in K.S.'s vagina. Defendant
said he did so to check if she had any semen in there. Defendantsaid he could not remember how many times he fingered K.S., but
he thought it was at least three times. Ms. Allen stated that
defendant admitted he tried to show K.S. how to use a condom.
Ms. Allen asked defendant to go to the DSS office to formulate
a protective services plan for K.S. Defendant left the Sheriff's
Department and went to the DSS office. At the DSS office, Ms.
Allen asked defendant if he had ever said anything sexual to K.S.
Defendant said he might have said some things to explain to K.S.
the types of things boys would say to get to her. Then DSS took
custody of K.S.
Defendant testified at trial as follows: Defendant denied that
he sexually abused or attempted to sexually abuse K.S. Defendant
said he had talked to K.S. about the importance of using condoms
and had taken K.S. and a friend to buy condoms.
Defendant said that after he caught K.S. in bed with her
boyfriend on 12 February 2004, K.S. begged him to check her
himself rather than taking her to the hospital for an examination.
K.S. pulled down her pajama bottoms, laid on the bed, and spread
her legs so that he could see her vagina and check to see if she
had sex with her boyfriend. Defendant checked K.S. again about 30
minutes later that same night. K.S. again pulled down her pajama
bottoms, laid on the bed, and spread her legs so defendant could
view her vagina.
 Defendant contends that he was not convicted by a
unanimous verdict of the jury because neither the verdict sheetsnor the jury instructions identified the specific incidents of the
respective charges for which the jury found defendant guilty.
Defendant argues that he was not found guilty by a unanimous jury
because there was testimony regarding more incidents of sexual
misconduct than there were individual charges. We disagree.
The Constitution of North Carolina states that [n]o person
shall be convicted of any crime but by the unanimous verdict of a
jury in open court. N.C. Const. art. I, § 24. Defendant cites
our Court's opinion in State v. Lawrence, 165 N.C. App. 548, 599
S.E.2d 87 (2004), in support of his contention, but that opinion
was recently reversed by our Supreme Court in State v. Lawrence,
360 N.C. 368, 627 S.E.2d 609 (2006). In Lawrence, the jury
returned guilty verdicts for, among other things, three counts of
taking indecent liberties with a minor and five counts of statutory
rape. Id. at 369, 627 S.E.2d at 609. Regarding the counts of
indecent liberties, our Supreme Court stated a defendant may be
unanimously convicted of indecent liberties even if: (1) the jurors
considered a higher number of incidents of immoral or indecent
behavior than the number of counts charged, and (2) the indictments
lacked specific details to identify the specific incidents. Id.
at 375, 627 S.E.2d at 613. Regarding the counts of first-degree
statutory rape, our Supreme Court concluded that the defendant was
unanimously convicted by the jury even though the victim testified
that she had sexual intercourse with the defendant thirty-two
separate times. Id. at 375-76, 627 S.E.2d at 613. The Court noted
that the evidence at trial tended to show the specific instances ofconduct in question at trial. Id. at 375, 627 S.E.2d at 613. The
Court also noted:
(1) defendant never raised an objection at
trial regarding unanimity; (2) the jury was
instructed on all issues, including unanimity;
(3) separate verdict sheets were submitted to
the jury for each charge; (4) the jury
deliberated and reached a decision on all
counts submitted to it in less than one and
one-half hours; (5) the record reflected no
confusion or questions as to jurors' duty in
the trial; and (6) when polled by the court,
all jurors individually affirmed that they had
found defendant guilty in each individual case
Id. at 376, 627 S.E.2d at 613.
In the instant case, the jury heard testimony from multiple
witnesses regarding, at a minimum, five alleged sexual incidents
between defendant and K.S. The charges against defendant were
based on three of those incidents. We see no merit in defendant's
argument that he was not found guilty by a unanimous jury; the jury
instructions and verdict sheets were clear as to what incident
corresponded to a particular charge. The verdict sheets
specifically designated which incident corresponded to each charge.
One verdict sheet stated that it related to the alleged incident
at the computer. Another verdict sheet stated it related to the
alleged incident in the car. The last verdict sheet stated that
it related to the alleged incident in the defendant's bedroom.
Moreover, the trial judge was clear in the jury instructions which
specific incident corresponded to a particular charge and that the
jury must be unanimous in reaching its verdict regarding each
charge. Therefore, we disagree with defendant's contention.
 Defendant contends the trial court erred in allowing the
State's motion to amend the dates alleged on each indictment. We
The North Carolina General Statutes provide that [a] bill of
indictment may not be amended. N.C. Gen. Stat. § 15A-923(e)
(2005). Our Supreme Court adopted this Court's interpretation of
amendment in this context to mean 'any change in the indictment
which would substantially alter the charge set forth in the
indictment.' State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556,
558 (1984) (citation omitted). When time is not an essential
element of the crime, an amendment in the indictment relating to
the date of the offense is permissible since the amendment would
not substantially alter the charge set forth in the indictment.
State v. Campbell, 133 N.C. App. 531, 535, 515 S.E.2d 732, 735,
disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).
In the present case, time is not an essential element of the
crime. Defendant was neither misled nor surprised at the nature of
the charges. Although a variance as to time does become material
and of essence when it deprives a defendant of an opportunity to
adequately present his defense, id. at 536, 515 S.E.2d at 735,
nothing in the record illustrates that defendant was unable to
present his defense. Moreover, as defendant's brief states,
defendant did not raise an alibi defense.
Accordingly, we disagree with defendant's contention.
 Defendant contests the validity of the indictments on a
basis that they are generic and do not allege with any specificity
as to what the alleged sex acts were. We disagree.
Indictments must be sufficient to put a defendant on notice of
the charges. State v. Kennedy, 320 N.C. 20, 24, 357 S.E.2d 359,
362 (1987). In general, an indictment couched in the language of
the statute is sufficient to charge the statutory offense. State
v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d 42, 46, cert.
denied, 349 N.C. 531, 526 S.E.2d 470 (1998).
In the instant case, the indictments charged defendant with
statutory sexual offense and taking indecent liberties with a child
pursuant to N.C. Gen. Stat. §§ 14-27.7A(a) and 14-202.1 (2005).
The statute for statutory sexual offense states:
A defendant is guilty of a Class B1 felony if
the defendant engages in vaginal intercourse
or a sexual act with another person who is 13,
14, or 15 years old and the defendant is at
least six years older than the person, except
when the defendant is lawfully married to the
N.C. Gen. Stat. § 14-27.7A(a). Regarding the charges based on this
statute, the indictments stated the defendant named above . . .
engage[d] in a sexual act with . . . a person of the age of 15
years. At the time of the offense, the defendant was at least six
years older than the victim and was not lawfully married to the
victim. Therefore, regarding the charge of statutory sexual
offense, the language of the indictments is couched in the language
of the statute, and we determine there is no error in theindictment regarding this charge.
The statute for taking indecent liberties with a child states:
A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he either:
(1) Willfully takes or attempts to
take any immoral, improper, or
indecent liberties with any
child of either sex under the
age of 16 years for the purpose
of arousing or gratifying
N.C. Gen. Stat. § 14-202.1. Regarding the charges based on this
statute, the indictments stated:
[T]he defendant named above . . . did take and
attempt to take immoral, improper, and
indecent liberties with . . . , who was under
the age of 16 years at the time, for the
purpose of arousing and gratifying sexual
desire. At the time, the defendant was over
16 years of age and at least five years older
than that child.
Therefore, regarding the charge of taking indecent liberties with
a child, the language of the indictments is couched in the language
of the statute, and we determine there is no error in the
indictment regarding this charge.
 Moreover, the indictment for statutory sexual offense was
sufficient to support defendant's conviction for attempted
statutory sexual offense because [u]pon the trial of any
indictment the prisoner may be convicted of the crime charged
therein or of a less degree of the same crime, or of an attempt to
commit the crime so charged, or of an attempt to commit a less
degree of the same crime. N.C. Gen. Stat. § 15-170 (2005). Therefore, we disagree with defendant's contention.
 Defendant contends that the trial court erred in not
granting defendant's motion to dismiss due to insufficiency of the
evidence. We disagree.
In ruling on a motion to dismiss based on the sufficiency of
the evidence, the trial court must determine whether 'there is
substantial evidence of each essential element of the crime and
that the defendant is the perpetrator.' State v. Mann, 355 N.C.
294, 301, 560 S.E.2d 776, 781 (citation omitted), cert. denied, 537
U.S. 1005, 154 L. Ed. 2d 403 (2002). Substantial evidence is that
amount of relevant evidence necessary to persuade a rational juror
to accept a conclusion. Id. The trial court must examine the
evidence in the light most favorable to the State. Id. The
question for the trial court is one of sufficiency of the evidence,
not one of weight. Id.
In the instant case, defendant was convicted on three charges,
but defendant's brief only argues that the trial court erred in
denying defendant's motion to dismiss for two of the convictions:
(1) taking indecent liberties with a minor and (2) attempted
statutory sexual offense. Therefore, defendant's assignment of
error challenging the sufficiency of the evidence to support his
statutory sexual offense conviction has been abandoned. N.C.R.
App. P. 28(a).
In order to convict a defendant for taking indecent liberties
with a minor under N.C. Gen. Stat. § 14-202.1, the State mustprove:
(1) the defendant was at least 16 years of
age, (2) he was five years older than his
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. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 4-5 (1993)
(citations omitted). We believe the evidence was sufficient to
support these elements. This conviction was connected with the
incident that occurred in the car. A review of the record shows
that there was evidence that defendant was at least 16 years of
age, that he was five years older than K.S., and that K.S. was
under 16 years of age at the time the alleged act or attempted act
occurred. We determine that there was sufficient evidence to
support the other elements of the statute. K.S. testified that when
she and defendant were alone in the car, defendant ran his hand up
her leg and tried to get his hand in her pants, but that defendant
was unable to because K.S. leaned up against the steering wheel.
This evidence, viewed in the light most favorable to the State, is
sufficient to show defendant attempted to take an indecent liberty
with K.S. for the purpose of arousing or gratifying his sexual
 In order to convict a defendant for attempted statutory
sexual offense under N.C. Gen. Stat. § 14-27.7A(a), the State must
prove the defendant engaged in a sexual act with another person
who is 13, 14, or 15 years old and the defendant is at least sixyears older than the person, except when the defendant is lawfully
married to the person. N.C. Gen. Stat. § 14-27.7A(a). The
definition of a sexual act in this context includes cunnilingus,
fellatio, analingus, or anal intercourse, but does not include
vaginal intercourse. N.C. Gen. Stat. § 14-27.1(4) (2005).
Sexual act also means 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). Any object in this
context includes any part of the human body, including a finger.
State v. Lucas, 302 N.C. 342, 345-46, 275 S.E.2d 433, 435-36
(1981). To prove an attempt of any crime, the State must prove
'(1) the intent to commit the substantive offense, and (2) an
overt act done for that purpose which goes beyond mere preparation,
but (3) falls short of the completed offense.' State v. Sines,
158 N.C. App. 79, 85, 579 S.E.2d 895, 899 (citations omitted),
cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003).
The evidence was sufficient to support defendant's conviction
of attempted statutory sexual offense. This conviction was
connected to the incident that occurred in defendant's bedroom.
There was evidence that the age requirements of N.C. Gen. Stat. §
14-27.7A(a) were satisfied. Moreover, there was evidence that K.S.
was defendant's daughter, and there is no evidence in the record
showing they were married. There was also sufficient evidence to
support the other elements of the statute. K.S. testified that
defendant pushed her down on his bed and said something sexual to
her. K.S. told Detective Gentry and Ms. Allen that defendant askedif he could eat her. Moreover, defendant admitted to Ms. Allen
that he might have told K.S. something like Let me eat your box.
K.S. testified that while defendant made the sexual remark, he
tried to take her pants off, but when she told him she had her
period, he stopped. This evidence, viewed in the light most
favorable to the State, was sufficient to show that defendant
attempted a statutory sexual offense.
Accordingly, we disagree with defendant's contention.
 Defendant contends that the trial court erred by denying
defendant's motion to suppress his inculpatory statements to the
police. We disagree.
In 1995, our Supreme Court held that [a] motion in limine is
insufficient to preserve for appeal the question of the
admissibility of evidence if the defendant fails to further object
to that evidence at the time it is offered at trial. State v.
Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845, cert. denied, 516
U.S. 884, 133 L. Ed. 2d 153 (1995). However, the General Assembly
amended Rule 103 of the Rules of Evidence providing that '[o]nce
the [trial] court makes a definitive ruling on the record admitting
or excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error
for appeal.' State v. Grant, 178 N.C. App. 565, 574, 632 S.E.2d
258, 265 (2006) (citation omitted). This amendment was applicable
to rulings made on or after 1 October 2003. Id. In 2005, we held
that the amendment to Rule 103 was unconstitutional to the extentit was inconsistent with N.C.R. App. P. 10(b)(1) (2005), which
generally requires a party to make a timely request, objection, or
motion with specific grounds and obtain a ruling on the request,
objection, or motion in order to preserve error. State v. Tutt,
171 N.C. App. 518, 524, 615 S.E.2d 688, 692-93 (2005). However, we
recognized it would be a manifest injustice to Defendant to not
review his appeal on the merits after he relied on a procedural
statute that was presumed constitutional at the time of trial[.]
Id. at 524, 615 S.E.2d at 693. Therefore, we reviewed the evidence
at our discretion pursuant to Rule 2 of the North Carolina Rules of
Appellate Procedure. Id. Many cases following Tutt have also
reached the merits of the case because the statute was presumed
constitutional at the time of trial. See Grant, 178 N.C. App. at
574, 632 S.E.2d at 265; State v. Oglesby, 174 N.C. App. 658, 662,
622 S.E.2d 152, 155, temp. stay allowed, 360 N.C. 294, 627 S.E.2d
215 (2005); State v. Baublitz, 172 N.C. App. 801, 806, 616 S.E.2d
615, 619 (2005). In the instant case, Rule 103 was presumed
constitutional at the time of trial, and therefore, we will
consider the merits of defendant's contention.
 The standard of review in determining whether a trial
court properly denied a motion to suppress is whether the findings
of fact are supported by the evidence and whether conclusions of
law are in turn supported by those findings of fact. State v.
Cockerham, 155 N.C. App. 729, 736, 574 S.E.2d 694, 699, disc.
review denied, 357 N.C. 166, 580 S.E.2d 702 (2003). The trial
court's findings 'are conclusive on appeal if supported bycompetent evidence, even if the evidence is conflicting.' State
v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)
(citations omitted). The determination of whether defendant's
statements are voluntary and admissible 'is a question of law and
is fully reviewable on appeal.' State v. Maniego, 163 N.C. App.
676, 682, 594 S.E.2d 242, 246 (citation omitted), appeal dismissed,
358 N.C. 737, 602 S.E.2d 369 (2004). We look at the totality of
the circumstances of the case in determining whether the confession
was voluntary. Id. (citation omitted). Factors we consider include
whether defendant was in custody, whether he
was deceived, whether his Miranda rights were
honored, whether he was held incommunicado,
the length of the interrogation, whether there
were physical threats or shows of violence,
whether promises were made to obtain the
confession, the familiarity of the declarant
with the criminal justice system, and the
mental condition of the declarant.
In the instant case, the trial court made detailed findings of
fact and then concluded, based on those findings, that defendant
was not in custody for Miranda purposes and that defendant's
statements were voluntary. Based on our review of the record, we
agree with the trial court. The record illustrates that an officer
went to defendant's house and asked him to go to the Sheriff's
Department for questioning. Defendant and the officer left in
separate vehicles to go to the Sheriff's Department. Defendant
waited at the department for approximately one hour while
defendant's wife was questioned, and he could have left at any
time. Defendant was told that he was not in custody and wasoffered something to drink. At the start of the questioning,
defendant did indicate that he wanted to speak to an attorney, but
defendant did not stop making statements. He stood up, became very
upset, and made some incriminating statements. Therefore, there is
competent evidence to support the trial court's findings of fact,
and the trial court's conclusions of law are supported by those
Accordingly, we disagree with defendant's contention.
 Defendant contends that the trial court erred by closing
the courtroom without holding a hearing, making findings of fact,
or allowing the defense to object or comment on his ruling on the
grounds that the closure violated federal and state constitutional
and statutory rights to an open and public trial. We disagree.
In the trial of cases for rape or sex offense or attempt to
commit rape or attempt to commit a sex offense, the trial judge
may, . . . exclude from the courtroom all persons except the
officers of the court, the defendant and those engaged in the trial
of the case. N.C. Gen. Stat. § 15-166 (2005). The general rule
[i]n clearing the courtroom, the trial court
must determine if the party seeking closure
has advanced an overriding interest that is
likely to be prejudiced, order closure no
broader than necessary to protect that
interest, consider reasonable alternatives to
closing the procedure, and make findings
adequate to support the closure.
State v. Starner, 152 N.C. App. 150, 154, 566 S.E.2d 814, 816-17(citations omitted), cert. denied, 356 N.C. 311, 571 S.E.2d 209
(2002). However, we have held that where defendant consents to the
closure, the trial court is not required to make specific findings
of fact. Id. at 154, 566 S.E.2d at 817.
In the instant case, the prosecutor asked the trial judge to
close the courtroom during K.S.'s testimony pursuant to N.C. Gen.
Stat. § 15-166. The trial judge agreed to do so. The judge spent
ample time questioning people who were in the courtroom
specifically why they were there. During this time, defendant's
counsel had an opportunity to object to or comment on the clearing
of the courtroom. The record illustrates that it took the trial
judge quite some time to clear the courtroom, six transcript pages'
worth of time. Nothing in the record shows that defendant's
counsel attempted to object to the clearing.
Accordingly, we disagree with defendant's contention.
 Defendant contends that the trial court erred by allowing
K.S. to testify that her mother was having an affair on the grounds
that this was irrelevant, highly prejudicial, and inadmissible
under the rules of evidence. Defendant also contends that the
testimony violated defendant's rights under the federal and state
constitutions. We disagree.
First, defendant asserts that the testimony of Lt. Gentry that
defendant's wife had an affair before K.S. was born, which led to
K.S.'s birth, was irrelevant and unduly prejudicial and should have
been excluded under Rules of Evidence 401 and 403. Rule ofEvidence 401 defines relevant evidence as evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence. N.C.R. Evid. 401. The
standard of appellate review under Rule 401 is great deference,
Grant, 178 N.C. App. at 574, 632 S.E.2d at 265, but we recognize
that at least one judge on our Court has stated that the standard
should be abuse of discretion. Id. at 583, 632 S.E.2d at 270
(Steelman, J., concurring). Rule of Evidence 403 states that
[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. N.C.R. Evid. 403. The
standard of appellate review for decisions of the trial court under
Rule 403 is abuse of discretion. Dunn v. Custer, 162 N.C. App.
259, 266, 591 S.E.2d 11, 17 (2004).
In the instant case, Lt. Gentry testified that K.S. told Lt.
Gentry that her parents had problems in the past and that K.S.'s
mother had been fooling around on [defendant], and then she [K.S.]
was born. Defendant's counsel objected based on relevance and
moved to strike the testimony. The trial court allowed the
testimony. Under the standards of appellate review previously
articulated, we agree with the trial court.
 Also, defendant asserts that the trial court erred by
allowing Lt. Gentry's testimony because it posed a ConfrontationClause issue. Constitutional issues not raised and passed upon at
trial will not be considered for the first time on appeal. State
v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert. denied, 537
U.S. 896, 154 L. Ed. 2d 165 (2002). Defendant did not raise his
constitutional argument at trial, and therefore, defendant's
assertion has no merit.
Accordingly, we do not agree with defendant's contention.
 Defendant contends that his trial counsel rendered such
poor legal representation that defendant was denied his right to
effective assistance of counsel. We disagree.
A defendant's right to counsel includes the right to the
effective assistance of counsel. State v. Braswell
, 312 N.C. 553,
561, 324 S.E.2d 241, 247-48 (1985). 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. Strickland v. Washington
, 466 U.S. 668, 687-88, 80
L. Ed. 2d 674, 693, reh'g denied
, 467 U.S. 1267, 82 L. Ed. 2d 864
(1984). In order to meet this burden defendant must satisfy a
First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was 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
. (Emphasis added).
, 312 N.C. at 562, 324 S.E.2d at 248 (citation omitted).
Thus, 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
In the instant case, defendant asserts it was ineffective
assistance of counsel (1) not to request complete recordation of
the entire trial and (2) not to object to defendant's statement to
law enforcement authorities at trial after moving to suppress the
statement prior to trial. After examining the record we conclude
that there is no reasonable probability that the alleged errors of
defendant's counsel affected the outcome of the trial.
Regarding the recordation of the trial, defendant asserts that
since trial counsel did not ask the trial court to record the
opening and closing arguments and the bench conferences, plus a
portion of the jury selection, defendant is at a disadvantage with
his appeal. Our Supreme Court has held that trial counsel is not
ineffective by not requesting recordation of jury selection, bench
conferences, opening statements, and closing arguments. State v.
, 326 N.C. 646, 660-62, 392 S.E.2d 364, 372-73 (1990). The
defendant's argument in Hardison
was very similar to defendant's
argument in the instant case, and our Supreme Court stated the
argument falls far short of the standard a defendant must meet for
an ineffective assistance of counsel argument. Id.
at 662, 392S.E.2d at 373. Further, defendant's brief on this issue states the
present state of the law does not support this argument[.]
Defendant has also not shown his trial counsel was ineffective
by not objecting at trial to the admission of defendant's
statements to the police, after counsel had earlier filed a
pretrial motion to suppress the statements. As we stated above,
Rule of Evidence 103(a)(2) was presumed constitutional at the time
of the trial, and thus, defendant's trial counsel's decision not to
object was a reasonable decision. Moreover, as we discussed above,
the trial court properly denied defendant's motion to suppress
because defendant was not in custody for Miranda
defendant's statements were voluntary. Therefore, we disagree with
Accordingly, we find no error by the trial court.
Judges WYNN and McGEE concur.
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