STATE OF NORTH CAROLINA
v
.
Chatham County
Nos. 05CRS4135, 4138-42,
4151, 4157, 4158, 4160-4162
OSCAR OMAR OSORTO, SR.,
Attorney General Roy Cooper, by Chris Z. Sinha, Assistant
Attorney General, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant-appellant.
STEELMAN, Judge.
Defendant appeals multiple sex offense convictions because of
alleged ineffective assistance of counsel, erroneous admission of
testimony, and imposition of an aggravated sentence. For the
reasons discussed herein, we find no error.
Two sisters, A.M. and D.M., attended a church, Kingdom Hall,
in Siler City, North Carolina. Defendant was an elder in the
church. As an elder, defendant spoke with the young girls
concerning their relationships with their boyfriends. Eventually
these conversations led to defendant's performing various and
sordid sexual acts upon the girls some of which took place at
Kingdom Hall. Defendant was indicted on one count of attempted statutory
rape of a person 13, 14, or 15 years old; four counts of statutory
rape of a person 13, 14, or 15 years old; two counts of indecent
liberties with a child; two counts of first degree statutory rape
of a child; and three counts of statutory sexual offense on a
person 13, 14, or 15 years old. On 16 November 2005, a jury found
defendant guilty of all twelve charges. The jury also found, from
evidence beyond a reasonable doubt, the aggravating factor that
defendant took advantage of a position of trust or confidence to
commit the offenses. The trial court consolidated the offenses
into two judgments, each imposing active sentences of 300 to 369
months imprisonment from the aggravated range of sentences. The
two judgments were to run concurrently. Defendant appeals.
In his first argument, defendant contends that his trial
counsel was per se ineffective when he conceded defendant's guilt
on two of the charges in the closing argument to the jury without
defendant's consent. We decline to rule upon this argument.
Defendant's trial counsel, in his closing argument, stated:
Now Oscar Osorto has admitted of course that
he had sex with [A.M.] twice, once when she
was 15, a crime whose maximum possible
punishment...is 369 months, 30 years. He has
consistently denied having sex with [D.M.].
And he has denied having sex with [M.M.].
Defendant contends that the first portion of this argument
constituted an unauthorized admission of defendant's guilt to two
of the charges in violation of State v. Harbison,
315 N.C. 175, 337
S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672-73(1986), and entitles defendant to a new trial. Harbison does
indeed hold that:
When counsel admits his client's guilt without
first obtaining the client's consent, the
client's rights to a fair trial and to put the
State to the burden of proof are completely
swept away...Counsel in such situations denies
the client's right to have the issue of guilt
or innocence decided by a jury.
Id. at 180, 337 S.E.2d at 507 (internal citations omitted).
However, the record in this case is silent as to whether defendant
did or did not consent to counsel's concession of guilt as to two
of the offenses based upon defendant's own trial testimony. We
refuse to presume from a silent record that counsel acted without
defendant's consent. State v. House, 340 N.C. 187, 196, 456 S.E.2d
292, 297 (1995). We therefore do not rule on this assignment of
error. “The appropriate remedy, if any, is for defendant to file
for appropriate relief in superior court based upon ineffective
assistance of counsel pursuant to N.C. Gen. Stat. § 15A-
1415(b)(3).” State v. Boston, 165 N.C. App. 890, 894, 600 S.E.2d
863, 865 (2004). Our ruling is without prejudice to defendant's
right to file such a motion.
In his second argument,
defendant contends that the trial
court erred in admitting the testimony of A.M. and D.M.'s sister
M.M. as to similar conduct of defendant. We disagree.
During the cross-examination of D.M., the following colloquy
transpired:
COUNSEL: Okay. And so around the time
he began to talk to you, he
told you that he was having sex
with [A.M.]; correct?
THE WITNESS: No, sir. He didn't tell me
specifically. He told me your
sisters have gone through the
same thing, both [M.M.] and
[A.M.]. And I don't know why
you can't do it.
THE COURT: Restate that again. Restate
what you just said.
THE WITNESS: Yes, sir. He said, “Both of
your sisters...have done it.
So I don't know why you can't,”
telling me that it was normal.
When the State called M.M. as a witness, defendant objected,
contending that M.M.'s testimony as to defendant's uncharged bad
acts committed upon M.M. would be prejudicial. The trial court
overruled defendant's objection, stating that defendant had opened
the door to questions regarding defendant's conduct with M.M.
The North Carolina Supreme Court has held that:
the law wisely permits evidence not otherwise
admissible to be offered to explain or rebut
evidence elicited by the defendant himself.
Where one party introduces evidence as to a
particular fact or transaction, the other
party is entitled to introduce evidence in
explanation or rebuttal thereof, even though
such latter evidence would be incompetent or
irrelevant had it been offered initially.
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).
In the instant case, defendant opened the door to M.M.'s
testimony regarding defendant's uncharged conduct with her when
questioning D.M. on cross-examination. Where as here, the whole
story is revealed subsequent to defendant's initial elicitation of
the testimony during cross-examination, defendant cannot allege
error. See State v. Duke, 360 N.C. 110, 121, 623 S.E.2d 11, 19
(2005). This assignment of error is without merit. In his third argument, defendant contends that the trial court
improperly submitted an aggravating factor to the jury because it
had no jurisdiction to do so. We disagree.
The trial court submitted to the jury the aggravating factor
of whether defendant took advantage of his position of trust as an
elder in the church in order to commit the offenses. The jury
answered “yes” and found the existence of the aggravating factor
beyond a reasonable doubt. The trial court exercised its
discretion to sentence defendant from the aggravated range.
The trial court's submission of the aggravating factor to the
jury for determination was proper, “as North Carolina law
independently permits the submission of aggravating factors to a
jury using a special verdict.” State v. Blackwell, 361 N.C. 41,
46, 638 S.E.2d 452, __ (2006). Special verdicts are the proper
format in which to submit aggravating factors to the jury for cases
arising prior to the applicable date of the amendments to N.C. Gen.
Stat. § 15A-1340.16 (Structured Sentencing Act, Aggravated and
Mitigated Sentences, amended effective 30 June 2005, in accordance
with Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403
(2004)). See State v. Johnson, __ N.C. App. __, __, __ S.E.2d __,
__ (2 January 2007). Defendant's argument is without merit.
We decline to rule upon defendant's ineffective assistance of
counsel argument and hold that defendant's trial was without error.
NO ERROR.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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