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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 August 2007
STATE OF NORTH CAROLINA
Nos. 04 CRS 53646
DARRYL EUGENE MCSWAIN 06 CRS 00748
Appeal by defendant from judgment entered 12 May 2006 by Judge
Forrest D. Bridges in Superior Court, Lincoln County. Heard in the
Court of Appeals 24 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General R.
Kirk Randleman, for the State.
William B. Gibson, for defendant-appellant.
Defendant Darryl Eugene McSwain appeals from his convictions
for attempted statutory rape and taking indecent liberties,
alleging insufficient evidence, ineffective assistance of counsel,
and plain error in jury instructions. After a careful review of
the record before us, we find no error and uphold Defendant's
At trial, the State presented evidence that tended to show that
Defendant, forty-two years old at the time of the incident in
question, was married to Joanne McSwain and the stepfather of a
thirteen-year-old female (the stepdaughter). On 23 December 2004,
the stepdaughter had a friend, a fourteen-year-old female, over to
the home to spend the night. The fourteen-year-old female testifiedthat she and the stepdaughter played video games that evening, and
Defendant kept coming in and out of the room, making jokes and
wrestling and stuff. The fourteen-year-old female told the jury
that during this play, Defendant pushed her on her chest, making her
The fourteen-year-old female slept in the stepdaughter's room
that night, with the fourteen-year-old female in the single bed and
the stepdaughter on the floor. The fourteen-year-old female
testified that, after going to sleep, the next thing she remembered
was waking up in [Defendant's and his wife's] room because she
felt something inside of me . . . his penis . . . in my vagina.
She stated that she pushed him off of me and he threw me my body
shorts and I put them on and he said 'Go back to sleep. You had a
bad dream.' The fourteen-year-old female further testified that
Defendant did not put any fingers inside her, nor did she know how
long a period of time his penis had been inside her or whether he
had ejaculated. After going back to the stepdaughter's room, the
fourteen-year-old female sent her mother a text message stating,
Please help. [Defendant] just raped me. The fourteen-year-old
female's parents then went to Defendant's house, soon followed by
the police, and the fourteen-year-old female was subsequently taken
to the hospital, where she underwent an interview and rape kit
examination and gave a statement to the police.
Defendant did not testify at trial, but Sergeant Lee Caskey of
the Lincoln County Sheriff's Office read the statement that
Defendant had made to the police after turning himself in on 24December 2004. In his statement, Defendant stated that the
fourteen-year-old female had approached him in his bedroom, pulled
him on top of her, and attempted to seduce him into having sex with
her. Defendant said that he had rejected the fourteen-year-old
female's advances and that she then got up and ran down the hall
and made a scene like it was all my fault. Defendant denied having
penetrated the fourteen-year-old female's vagina during the
Nevertheless, Detective Sally Dellinger of the Lincoln County
Sheriff's Office testified that Defendant had told her that he was
concerned whether any semen was found on the fourteen-year-old
female and admitted to touching the inside of her vagina with his
finger. The State also offered testimony from the fourteen-year-old
female's mother concerning changes in the fourteen-year-old female's
personality since the incident, as well as from a professional
counselor who had been meeting regularly with the fourteen-year-old
female. Defendant and the State both stipulated to the results of
testing on items collected from Defendant and the fourteen-year-old
female that failed to reveal the presence of sperm, semen, blood,
At the conclusion of the trial, the jury found Defendant guilty
of attempted statutory rape and of taking indecent liberties, but
not guilty of statutory sexual offense. The trial court sentenced
Defendant to two hundred seventeen to two hundred seventy months'
imprisonment for attempted statutory rape, and to a consecutive
sentence of twenty to twenty-four months' imprisonment for takingindecent liberties. Defendant now appeals, arguing (I) the trial
court erred by denying his motions to dismiss on both charges, as
there was insufficient evidence presented to prove each element of
the two crimes; (II) he is entitled to a new trial because he had
ineffective assistance of counsel; and (III) the trial court
committed plain error by allegedly coercing the guilty verdicts by
instructing jurors that they must reach a unanimous verdict.
First, Defendant argues that the trial court erred by denying
his motions to dismiss on both charges, as there was insufficient
evidence presented to prove each element of the two offenses.
Defendant alleges that the State failed to prove that he attempted
to rape the fourteen-year-old female, or that he took indecent
liberties with the fourteen-year-old female.
Under our appellate rules,
A defendant in a criminal case may not assign
as error the insufficiency of the evidence to
prove the crime charged unless he moves to
dismiss the action . . . at trial. If a
defendant makes such a motion after the State
has presented all its evidence and has rested
its case and that motion is denied and the
defendant then introduces evidence, his motion
for dismissal . . . made at the close of
State's evidence is waived. Such a waiver
precludes the defendant from urging the denial
of such motion as a ground for appeal.
A defendant may make a motion to dismiss
the action . . . at the conclusion of all the
evidence, irrespective of whether he made an
earlier such motion. . . . However, if a
defendant fails to move to dismiss the action
. . . at the close of all the evidence, he may
not challenge on appeal the sufficiency of the
evidence to prove the crime charged.
N.C. R. App. P. 10(b)(3); see also State v. Stocks, 319 N.C. 437,439, 355 S.E.2d 492, 492 (1987) (holding that a defendant who fails
to make a motion to dismiss at the close of all the evidence may not
attack on appeal the sufficiency of the evidence at trial.).
The record before us shows that defense counsel made a motion
to dismiss at the close of the State's evidence. However, although
the transcript shows an off-the-record bench conference between
defense counsel and the trial court at the close of all evidence,
the transcript does not contain a record of either a motion made by
defense counsel to dismiss at that time, nor of the trial court's
denial of such a motion. As such, we are precluded from reviewing
the merits of Defendant's argument. See N.C. R. App. P. 10(b)(3).
Accordingly, these assignments of error are dismissed.
Next, Defendant asserts that he is entitled to a new trial
because he was provided ineffective assistance of counsel at trial.
Defendant specifically contends that his defense counsel was
ineffective by (1) failing to record a motion to dismiss at the
close of all evidence; (2) failing to object to the submission of
attempted statutory rape as a possible verdict; and (3) failing to
request the trial court to include a parenthetical portion of the
jury pattern instruction as to the necessity of a unanimous verdict.
In State v. Braswell, our state Supreme Court adopted the two-
part test for determining whether a criminal defendant received
effective assistance of counsel, as articulated by our federal
Supreme Court: 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
error were so serious as to deprive the
defendant of a fair trial, a trial whose result
312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (quoting Strickland
v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).
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 249.
Moreover, our Supreme Court has also held that counsel is given
wide latitude in matters of strategy, and the burden to show that
counsel's performance fell short of the required standard is a heavy
one for defendant to bear. State v. Fletcher, 354 N.C. 455, 482,
555 S.E.2d 534, 550 (2001), cert. denied, 537 U.S. 846, 154 L. Ed.
2d 73 (2002).
Here, in light of the evidence offered against Defendant, we
conclude that, even absent the alleged errors made by defense
counsel, there is no reasonable probability that the result of the
proceeding would have been different. First, had defense counsel
properly preserved for appeal Defendant's motion to dismiss for
insufficient evidence, we find that the State presented sufficient
evidence as to each element of both attempted statutory rape andtaking indecent liberties. See State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (holding that, when considering a motion
to dismiss, substantial evidence is relevant evidence that a
reasonable person might accept as adequate, or would consider
necessary to support a particular conclusion. (citations omitted)),
cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005).
The fourteen-year-old female testified against Defendant,
recounting the events of 23 December, including that Defendant had
pushed her chest while wrestling and that she remembered waking up
in [Defendant's and his wife's] room because she felt something
inside of me . . . his penis . . . in my vagina. Although
Defendant did not testify, the jury heard the statement that he made
to police that he had not penetrated the fourteen-year-old female,
as well as from another police officer that he had admitted to
touching the inside of her vagina with his finger. This testimony
constituted sufficient evidence as to each element of both attempted
statutory rape and taking indecent liberties, and Defendant's motion
to dismiss was properly denied.
Second, as conceded by Defendant in his brief, defense
counsel's failure to object to the submission of attempted statutory
rape as a possible verdict was likely reluctance to go 'double or
nothing . . . that is, to limit the jury to the option of returning
a guilty verdict to a B1 felony or a not-guilty verdict on that
charge. Such a decision is unquestionably one of trial strategy,
and we decline to engage in the sort of second guessing requested
by Defendant here. See State v. Mason, 337 N.C. 165, 177-78, 446S.E.2d 58, 65 (1994) (A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight . . . Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance. (internal citation and quotation
omitted)). Defense counsel's strategy at trial, while perhaps
ultimately ill advised given the outcome, does not rise to the level
of ineffective assistance of counsel.
Third, the parenthetical portion of the jury pattern
instruction that Defendant asserts should have been included follows
the sentence, You may not render a verdict by majority vote and
You all have a duty to consult with one
another, and to deliberate with a view to
reaching an agreement, if it can be done
without violence to individual judgment. Each
of you must decide the case for yourself, but
only after an impartial consideration of the
evidence with your fellow jurors. In the
course of deliberations, each of you should not
hesitate to re-examine your own views and
change your opinion if it is erroneous. But
none of you should surrender your honest
conviction as to the weight or effect of the
evidence solely because of the opinion of your
fellow jurors or for the mere purpose of
returning a verdict.
N.C.P.I._Crim. 101.35. However, the trial court instead told the
jury only that a verdict is not a verdict until all twelve of you
have agreed unanimously as to what your verdict shall be. You may
not and you shall not render a verdict by majority vote.
Defendant has given us no reason to believe that the failureof defense counsel to request this parenthetical portion deprived
Defendant of a fair trial, a trial whose result is reliable.
Braswell, 312 N.C. at 566, 324 S.E.2d at 248 (quotation and citation
omitted). Following the verdict, the trial court polled the jury,
and all twelve jurors indicated that they agreed with the verdicts
returned. Moreover, the trial court did not instruct the jury that
a verdict was mandatory; rather, he informed them that, in order to
have a verdict, it must be unanimous. His instructions were proper
and accurate; under such circumstances, it was not ineffective
assistance of counsel to fail to request the parenthetical portion
We, further, note the trial court's comments on the record to
defense counsel at the conclusion of Defendant's trial:
. . . I just want to say to you, again, I think
you know the kind of regard for your acumen and
accomplishments as an attorney. I just want to
say to you that I think you did as good a job
trying this case as I've ever seen in a case
like this. I can't imagine how you could have
done anything differently to possibly have
represented your client any better in this
case. I commend you on the services you've
provided to [Defendant] and to his family. I
think you ought to be commended for it.
These assignments of error are overruled.
Finally, Defendant contends that the trial court committed
plain error by allegedly coercing the guilty verdicts by instructing
jurors that they must reach a unanimous verdict. We disagree.
The plain error rule is always to be applied cautiously and
only in the exceptional case where, after reviewing the entirerecord, the error is found to have been so basic, so prejudicial,
so lacking in its elements that justice cannot have been done or
that it had a probable impact on the jury's finding that the
defendant was guilty. State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983) (internal citation and quotation omitted). In State
, we held that where the jury instruction is susceptible
of the interpretation that when a vote is taken and there is a
majority _ either for conviction or acquittal _ the minority must
then cast their vote with the majority and make the verdict
unanimous, before returning the verdict in open court[,] there is
29 N.C. App. 413, 414, 224 S.E.2d 280, 281
(1976); see also State v. Flemming
, 171 N.C. App. 413, 414-17, 615
S.E.2d 310, 311-13 (2005).
Here, the trial court made clear that the jury's verdict must
be unanimous in order to be considered a verdict; contrary to
Defendant's assertions, his instruction did not coerce guilty
verdicts. Indeed, the fact that the jury also returned a verdict
of not guilty on the charge of statutory sexual offense illustrates
that they were well aware that a guilty verdict was not required.
Moreover, the trial court's instructions that a verdict is not a
verdict until it is unanimous is accurate and not misleading; he
did not inform the jurors that a verdict was required. Accordingly,
this assignment of error is overruled.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).
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