Appeal by defendant from judgments entered 16 July 1999 by
Judge J. Richard Parker in Dare County Superior Court. Heard in
the Court of Appeals 13 December 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant.
BRYANT, Judge.
John Michael Reber (defendant) appeals from judgments entered
16 July 1999 consistent with jury verdicts finding him guilty of
two counts of first degree sexual offense and two counts of
indecent liberties with a minor.
The State's evidence tended to show the following: Carla
Reber was born on 11 June 1983. Defendant was her cousin.
Defendant was charged in four indictments with the commission of
sex-related offenses against Carla. In indictment numbers 4734 and
4736, defendant was charged with first degree sex offense and
indecent liberties with a minor, respectively, occurring between
June 1989 and June 1990. Carla Reber testified that the first time
defendant ever sexually assaulted her occurred when she was six
years old; her sixth birthday was 11 June 1989. Carla's parents
were not home and defendant was babysitting Carla and her sister.
Carla fell asleep on the couch but woke up in her bed with
defendant attempting to put his penis into her vagina. Carla woke
up again later that night and defendant had inserted his finger
into her vagina. Carla told her father about defendant's behavior
the next day.
Two other indictments charged defendant with sexual acts
against Carla when she was nine years old. Indictment number 4733
charged defendant with a first degree sex offense. Indictment
number 4735 charged him with indecent liberties with a minor. Both
of these indictments listed the date of the offenses as being
between June 1992 and June 1993. Carla's ninth birthday was 11June 1992. Carla testified that when she was nine years old,
defendant put his tongue in her vagina. Carla also testified to
two other incidents that occurred while she was seven or eight
years old which involved defendant; however defendant was not
charged with these acts in any of the indictments. Carla also
testified regarding another sexual assault that occurred when she
was twelve or thirteen years old. On that occasion, defendant came
to her house and tried to have sex with her. Defendant was not
indicted for any acts between June 1995 and June 1997, the time
Carla would have been twelve or thirteen years old.
In July 1998, Dare County Department of Social Services and
Doug Doughtie, with the Dare County Sheriff's Department, began
investigating defendant's sexual acts with Carla. During the
course of the investigation, Doughtie asked Carla to call defendant
on the phone and confront him. Carla asked defendant why he had
done what he did and he “just said you taste good.” Also during
the DSS investigation, Carla revealed that she had heard that
similar acts had been committed by defendant against her cousin,
Candace Reber. The investigators subsequently interviewed Candace.
Candace Reber Basnight was born on 30 June 1977, and was
twenty-two years old at the time of trial. At the time relevant to
this case, she was living in Wanchese, North Carolina, with her
mother, Ginger Reber, her father, Sonny Reber, and her sister,
Dana. Defendant was her half-brother who had previously resided
primarily with his mother. Around the time he entered high school,
he began living with his father, Sonny. The two sisters, Candaceand Dana, shared bunk beds in the two-bedroom house. Defendant
slept on a cot, or mattress, on the floor in the sisters' bedroom.
Defendant was charged in Indictment Number 99 CRS 1602 with one
count of first degree sex offense and one count of indecent liberty
against Candace Reber. The date of offense listed in the
indictment was from 19 September 1987 to 31 December 1988.
Defendant's date of birth was 19 September 1971. Thus, the
indictment charged offenses committed when defendant was sixteen or
seventeen years old.
Candace testified that, just prior to turning eleven years
old, and just after finishing the sixth grade, in June 1988,
defendant performed oral sex on her. She stated that she was on
the bottom bunk and he was on his knees beside the bed, “up
underneath my blanket,” with his head between her legs. At the
same time, Candace's mother came to the bedroom door and hollered
for the kids to come to breakfast. Ms. Reber testified at the
trial that, upon seeing defendant performing oral sex on her
daughter, she “literally got sick” and went to the bathroom and
threw up. That day, 20 June 1988, Candace had a dentist
appointment in Manteo. Candace was crying but did not tell her
mother or anyone else what happened. Mrs. Reber that day insisted
that defendant move out of the house immediately, which he did.
Defendant was sixteen years old on 20 June 1988. Candace testified
regarding other sexual acts committed by defendant which were not
the subject of any indictment.
Defendant testified in his own behalf and denied ever touchingCarla Reber. Defendant admitted performing oral sex on Candace,
but insisted the acts occurred in 1987 when he was only fifteen
years old. Defendant appeals.
________________________
Defendant raises four issues on appeal: whether the trial
court erred by (I) failing to submit the issue of defendant's age
to the jury; (II) denying defendant the right to unanimous
verdicts; (III) referring to indictment 98 CRS 4736 as “98 CRS
4735” when instructing the jury; and (IV) admitting evidence
regarding sexual offenses involving defendant in which he was not
charged and because defense counsel failed to object to the
admission of such evidence, defendant received ineffective
assistance of counsel.
I
[1] Defendant argues the trial court erred by failing to
submit the issue of defendant's age to the jury. Defendant
contends that he was only fifteen years old at the time of the
commission of the charged offenses against Candace Reber and
therefore the Superior Court had no jurisdiction over him; that he
would have been subject only to the jurisdiction of the juvenile
court. Defendant argues there was an issue of fact as to his age
at the time of the offense and consequently that issue should have
been submitted to the jury. We disagree.
The indictment in question charged defendant with indecentliberties with a minor
(See footnote 1)
and first degree sex offense
(See footnote 2)
between 19
September 1987 and 31 December 1988. The trial court specifically
charged the jury that, in order to convict defendant, the jury had
to find, unanimously, that he committed the charged acts between
the two dates set forth in the indictment. Defendant's date of
birth was 19 September 1971 so that he was sixteen years old on 19
September 1987. However, defendant testified that he committed
some act or acts against Candace when he was fifteen years old.
Defendant cites
State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218
(1996) and
State v. Bright, 131 N.C. App. 57, 505 S.E.2d 317
(1998),
disc. rev. improvid. allowed, 350 N.C. 82, 511 S.E.2d 639
(1999)
, in urging this Court to apply territorial jurisdiction
decisions to the instant case, stating he is entitled to special
jury instructions because he challenged the trial court's
jurisdiction. However, the cases cited by defendant are
inapplicable as those cases require special jury instructions only
where the location of the crime is challenged. Therefore, we
reject defendant's argument that there exists a jurisdictional
issue. Here, the trial court instructed the jury that it must find,
“beyond a reasonable doubt that on or about the alleged date the
Defendant [committed a first degree sexual offense and/or an
indecent liberty with Candace].” Thus, because the indictments
involving Candace Reber alleged dates between 19 September 1987 and
31 December 1988, during the year defendant was sixteen years old,
the trial court instructed the jury that it must find, beyond a
reasonable doubt, that defendant committed the acts, if at all,
when he was at least sixteen years old. This assignment of error
is overruled.
II
[2] Defendant next argues the trial court denied him the right
to unanimous verdicts because in both convictions, there was
evidence presented of more incidents than offenses charged in the
indictments and thus it is unclear as to which incidents the jury
unanimously agreed. We disagree.
First, as to the indecent liberties charges, our Supreme Court
has consistently held that “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.”
State v.
Lawrence, 360 N.C. 368, 375, 627 S.E.2d 609, 613 (2006);
State v.
Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990);
State v. Lyons, 330
N.C. 298, 412 S.E.2d 308 (1991).
Defendant goes on to argue, however, that the unanimousverdict requirement was violated with respect to the first degree
sex offense conviction. However, a review of each indictment,
including the specific dates alleged, shows that, for each time
period, only one incident could conceivably support a conviction
under that particular indictment. For Carla Reber, two indictments
charged a first degree sexual offense: (1) Indictment Number 4733,
from June 1992 through June 1993 (Carla was nine years old); and
(2) Indictment Number 4734, from June 1989 through June 1990 (Carla
was six years old). Carla testified to an incident occurring when
she was nine years old (oral sex) and to a separate incident when
she was six years old (finger in vagina). These incidents were
clearly separate incidents, separately charged, and the trial judge
instructed on them separately. No other specific incidents fit
into the time frame for these two indictments. While Carla did
mention an incident when she was “seven or eight years old,” no
indictment corresponded to that particular time frame.
Furthermore, the jury found defendant guilty of one sex offense
charge against Carla, that occurring when Carla was six years old.
The evidence supporting this conviction was very specific.
Defendant was babysitting for Carla and her sister and later that
night tried to have sex with Carla and then inserted his finger
into her vagina. This was the only evidence that supported this
charge and this conviction. There was no violation of defendant's
right to a unanimous verdict.
As to the charge of first degree sex offense and indecent
liberties with a minor involving Candace Reber, Indictment Number99 CRS 1602 charged that between 19 September 1987 and 31 December
1988, defendant committed a sex offense and an indecent liberty
against Candace Reber. Candace testified to only one incident that
could support these particular charges within the time frame
alleged. She described the incident occurring the morning of 20
June 1988, two weeks after sixth grade ended, when her mother
walked in while defendant was performing oral sex on her. This
incident supported the jury verdict as to first degree sex offense
and indecent liberties for the time period specifically alleged in
the indictment which was between 19 September 1987 and 31 December
1988.
See State v. Brewer, 171 N.C. App. 686, 695, 615 S.E.2d 360,
365 (2005) (“Because the same act of cunnilingus is sufficient to
support a conviction of indecent liberties in addition to
first-degree sexual offense, [citing
State v. Manley, 95 N.C. App.
213, 217, 381 S.E.2d 900, 902 (1989)], and because no other
evidence specifically relates to [the time period alleged in the
indictment,] the jury was unanimous in its finding of indecent
liberties[.]”).
In the instant case, as in
Lawrence and in
State v. Wiggins,
161 N.C. App. 583, 589 S.E.2d 402 (2003),
disc. rev. denied, 358
N.C. 241, 594 S.E.2d 34 (2004), there were specific incidents which
supported each of the guilty verdicts rendered by the jury.
Accordingly, “there was no danger of a lack of unanimity between
the jurors with respect to the verdict.”
Wiggins, 161 N.C. App. at
593, 589 S.E.2d at 409. Moreover, defendant did not object at
trial regarding unanimity or regarding jury instructions on thisground; the judge properly charged the jury that it must be
unanimous in its verdict; separate verdict sheets were submitted
for each charge; the jury never questioned or exhibited any
confusion about the requirement of unanimity; and the jury members
were polled and all indicated their affirmation of the verdict.
Lawrence, 360 N.C. at 376, 627 S.E.2d at 613. This assignment of
error is overruled.
III
[3] Defendant next argues the trial court erred by referring
to indictment 98 CRS 4736 as “98 CRS 4735” when instructing the
jury. Defendant claims this error improperly created a fatal
variance between the indictment and the instructions and also
impermissibly allowed the jury to consider different sexual
incidents to support its verdict. We disagree.
Defendant did not object to the jury instructions at trial,
and alleges plain error on appeal. When a defendant alleges plain
error, we must examine the whole record to determine if the error
is so basic and prejudicial that it amounts to fundamental error,
or whether the jury's finding of guilt was influenced by the
mistaken instruction.
State v. Carrigan, 161 N.C. App. 256,
262-63, 589 S.E.2d 134, 139 (2003),
disc. review denied, 358 N.C.
237, 593 S.E.2d 784 (2004).
Defendant was informed throughout this trial that there were
four charges involving two specific time periods, as to the
incidents involving Carla Reber. Defendant had repeated notice
throughout the trial that he was charged with two offenses during1989-1990, when Carla Reber was six years old; and with two other
offenses during 1992-1993, when Carla was nine years old. While
the trial court did at one point mistakenly refer to 98 CRS 4736 as
4735, it was clear the foreperson of the jury was making notes as
to indictment numbers, dates and names of victims.
THE COURT: In case number 98 CRS 4734, which
also involves first degree sex offense
allegedly with the victim Carla Reber, the
date of that offense alleged in the bill of
indictment is between 6-89 and 6-90. In case
CRS 4735, which involves indecent liberties of
a child with the alleged victim being Carla
Reber, the date of that offense was alleged to
have occurred between 6-89 and 6-90. In case
98 CRS 4735, which alleges indecent liberties
with a child, that child being Carla Ann
Reber, the dates of that offense alleged to be
between 6-92 and 6-93.
THE FOREPERSON: What was the CR number on
that, Your Honor?
THE COURT: Pardon?
THE FOREPERSON: What was the CR number on --
THE COURT: 98 CRS 4735.
THE FOREPERSON: Okay.
The trial court then further clarified the offenses by stating:
THE COURT: The Defendant has been accused of
three (3) counts of first degree sexual
offense. Two (2) of these charges 98 CRS 4733
and 98 CRS 4734 relate to Carla Reber and the
charge of 99 CRS 1602 relates to Candace
Reber.
. . .
The Defendant has been also accused of three
(3) counts of taking an indecent liberty with
a child. Two (2) of these charges 98 CRS 4735
and 4736 relate to Carla Reber and the charge
of 99 CRS 1602 relates to Candace Reber. . . .
We note defendant was found
not guilty of charge number 98 CRS
4736. The trial court's misstatement during jury instructions did
not influence the jury in determining defendant's guilt in 98 CRS
4735. Defendant has failed to show error, plain or otherwise.
See
State v. Pinland, 58 N.C. App. 95, 293 S.E.2d 278 (1982) (defendant
was not prejudiced and jury was not misled by a
lapse linguae in
the charge which was subsequently corrected). This assignment of
error is overruled.
IV
[4] Defendant argues the trial court erred by admitting
evidence regarding sexual offenses involving defendant in which he
was not charged and because defense counsel failed to object to the
admission of such evidence, defendant received ineffective
assistance of counsel. We disagree.
Evidence is admissible to show motive and intent, pursuant to
N.C. Rules of Evidence, Rule 404(b).
State v. Byrd, 321 N.C. 574,
364 S.E.2d 118 (1988);
State v. Craven, 312 N.C. 580, 324 S.E.2d
599 (1985);
State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954);
State v. Wade, 155 N.C. App. 1, 573 S.E.2d 643 (2002),
review
denied, 357 N.C. 169, 581 S.E.2d 444 (2003)
;
State v. Sturgis, 74
N.C. App. 188, 328 S.E.2d 456 (1985). Specifically, defendant
contends that the trial court erred in admitting Carla's testimony
regarding defendant's sexual assault on her when she was twelve or
thirteen years old. Defendant concedes that there was no objection
to this evidence at trial, but argues it was plain error. We find
there was no error in the trial court's admission of the evidence. [5] Moreover, defendant must satisfy a two-part test in order
to meet his burden as to his claim for ineffective assistance of
counsel:
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. The fact that counsel made
an error, even an unreasonable error, does not
warrant reversal of a conviction unless there
is a reasonable probability that, but for
counsel's errors, there would have been a
different result in the proceedings. This
determination must be based on the totality of
the evidence before the finder of fact.
. . . .
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. After examining the
record we conclude that there is no reasonable
probability that any of the alleged errors of
defendant's counsel affected the outcome of
the trial.
State v. Braswell, 312 N.C. 553, 563-64, 324 S.E.2d 241, 248-49
(1985) (citations omitted).
In the instant case, defense counsel succeeded in convincing
the jury to acquit on two of the charges on which defendant was
indicted. Defendant cannot show his counsel's mere failure to
object to the admission evidence at trial rises to the level
required to show ineffective assistance of counsel.
Wade, 155 N.C.App. 1, 573 S.E.2d 643. This assignment of error is overruled.
No error.
Judges MCGEE and ELMORE concur.
Footnote: 1