State v. Moore ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-1351
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Person County
Nos. 12 CRS 50508-11
ISAAC WALTON MOORE
Appeal by Defendant from Judgments entered 21 August 2013
by Judge Henry Hight in Person County Superior Court. Heard in
the Court of Appeals 19 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberley A. D’Arruda, for the State.
Mark Montgomery for Defendant.
STEPHENS, Judge.
Factual Background and Procedural History
On 9 April 2012, Defendant Isaac Walton Moore was indicted
on four counts of statutory rape/sex offense. The case came on
for trial on 19 August 2013 and a verdict was rendered the
following day. The evidence at trial tended to show the
following:
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Between August of 2010 and November of 2011 Defendant lived
with his wife and stepdaughter, Audrey.1 Audrey was between
thirteen and fourteen years old at the time, and Defendant was
between fifty-two and fifty-three years old. Though Audrey and
Defendant sometimes had a good relationship, Defendant would
often “bother” her. According to Audrey, this involved going
into her bedroom, sitting on her bed, and “touching” her.
Sometimes Defendant would rub Audrey’s shoulders and back. On
two separate occasions, Defendant started “going down my back
and touching me between my legs and putting his hands underneath
my skirt.” If Audrey tried to move away, Defendant moved closer.
Defendant eventually removed Audrey’s shirt, “played with my
pants,” and put his hands between Audrey’s legs. Defendant then
put his mouth on Audrey’s “private parts,” put his penis inside
her vagina, and put “fake penises” inside her vagina.
Defendant told Audrey not to tell her mother about what had
happened. He also bought her gifts in an attempt to procure sex.
Audrey refused the offer, saying, “No. Not ever again, and I
just ran in my room.”
In an attempt to deter Defendant’s advances, Audrey began
to neglect her hygiene. This became an issue with her mother,
1
A pseudonym is used to protect the juvenile’s identity.
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and, shortly after Defendant offered Audrey gifts for sex,
Audrey and her mother had an argument about Audrey’s hygiene. In
order to explain her failure to keep clean, Audrey revealed what
Defendant had been doing. The mother became upset and called the
police.
This was the second time that Audrey had reported
Defendant’s actions. The first time was in 2008 in Virginia. In
that instance, authorities were unable to find any evidence to
support Audrey’s statement, and Audrey became worried that she
would not be believed. As a result, Audrey retracted her
statement against Defendant. Following Audrey’s argument with
her mother and the subsequent revelation about Defendant’s
actions, however, Audrey stated that her first accusation, made
in Virginia, had been truthful.
After revealing what Defendant had done, Audrey met with
Sergeant Gail Shull of the Roxboro Police Department’s criminal
investigation unit. According to Sergeant Shull, Audrey’s
statements during this meeting were “consistent with” her
testimony at trial. Shortly after meeting with Audrey, Sergeant
Shull contacted Defendant. He agreed to meet with Sergeant Shull
to discuss the allegations and, while doing so, admitted to
having intercourse with Audrey on at least two occasions.
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At the conclusion of the trial, Defendant was found guilty
of two counts of statutory rape and two counts of statutory
sexual offense. He was sentenced to 240 to 297 months in prison
for each conviction, with credit for 509 days served in pre-
trial confinement. Defendant gave notice of appeal in open
court.
Discussion
On appeal, Defendant argues that the trial court (1) erred
or, in the alternative, committed plain error by repeatedly
referring to Audrey as “the victim” in its jury charge and (2)
plainly erred in allowing Sergeant Shull to testify that her
pre-trial discussion with Audrey was “consistent with” Audrey’s
testimony at trial. Alternatively, Defendant asserts that his
trial counsel’s failure to address these issues constituted
ineffective assistance of counsel (“IAC”). We find no error on
the trial court’s use of the phrase “the victim,” no prejudicial
error as to the admission of Sergeant Shull’s testimony, and
overrule Defendant’s IAC argument.
I. Use of the Phrase “the Victim”
In its charge to the jury, the trial court used the phrase
“the victim” multiple times to describe the crimes of statutory
rape and statutory sexual offense. Defendant admits that he
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failed to object to the court’s use of that phrase at trial.
Nonetheless, Defendant argues as a preliminary matter that the
issue is reviewable de novo on appeal because it affects the
trial court’s “statutory duty not to set out only one party’s
contention or to express an opinion on the evidence.” We
disagree.
As a general rule, a party must present a timely objection
to the trial court in order to preserve an issue for appellate
review. N.C.R. App. P. 10(a)(1).
In criminal cases, [however,] an issue that
was not preserved by objection noted at
trial and that is not deemed preserved by
rule or law without any such action . . .
may be made the basis of an issue presented
on appeal when the judicial action
questioned is specifically and distinctly
contended to amount to plain error.
N.C.R. App. P. 10(a)(4). Plain error arises when the error is
“so basic, so prejudicial, so lacking in its elements that
justice cannot have been done . . . .” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal
quotation marks omitted). “Under the plain error rule, [the]
defendant must convince [the appellate court] not only that
there was error, but that absent the error, the jury probably
would have reached a different result.” State v. Jordan, 333
N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
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This Court has previously held that “the trial court’s
reference to the prosecuting witness as ‘the victim’ [is not
reviewed] for anything other than plain error where [the]
defendant failed to object and properly preserve the issue for
review.” State v. Phillips, __ N.C. App. __, __, 742 S.E.2d 338,
341 (2013). We are bound by that decision. In re Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Therefore,
Defendant’s argument as it pertains to the standard of review is
overruled, and we proceed with an analysis for plain error.
Defendant argues that the trial court’s use of the phrase
“the victim” constitutes plain error because
the [trial] court’s repeated
characterization of [Audrey] as “the victim”
subtly and inadvertently yet impermissibly
suggested that, in the trial court’s view,
the [S]tate had met its burden of proving
that a crime was committed. This inadvertent
bolstering of [Audrey’s] credibility was a
fundamental error, equivalent to designating
the defendant as “the perpetrator” and had a
probable impact on the verdict.
For support, Defendant cites N.C. Gen. Stat. §§ 15A-1222, -1232.
Both sections forbid a trial judge from expressing an opinion on
the evidence in the presence of the jury. N.C. Gen. Stat. §§
15A-1222, -1232 (2013). Defendant also cites a number of cases
from other states specifically holding that the use of the term
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“the victim” constitutes an impermissible judicial expression of
opinion. In this case, Defendant’s argument lacks merit.
Our courts have long held that the use of the phrase “the
victim” in the trial court’s pattern jury charge does not
constitute prejudicial error. See State v. Jones, __ N.C. App.
__, __, 752 S.E.2d 212, 214–15 (2013) (collecting cases and
holding that “the trial court did not commit plain error when it
used the term ‘victim’ in its instruction to the jury on the
offenses of first- and second-degree rape”) (citations omitted),
disc. review denied, __ N.C. __, __ S.E.2d __ (2014), available
at 2014 WL 939074; see also State v. Jackson, 202 N.C. App. 564,
568–69, 688 S.E.2d 766, 769 (2010) (holding that the trial
court’s use of the word “victim” in its jury instruction was not
an improper expression of judicial opinion on the offense of
taking indecent liberties with a child and statutory rape)
(citations omitted). Though we have recently held that a trial
court erred by using the phrase “the victim” in its jury
instructions, State v. Walston, __ N.C. App. __, __, 747 S.E.2d
720, 727–28 (2013) (finding error when the issue of “whether
sexual offenses occurred was a disputed fact for the jury to
resolve”), disc. review allowed, __ N.C. __, 753 S.E.2d 666(2014), Defendant concedes that Walston is distinct from other
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cases in which we have held that the use of the term “the
victim” is not error. See, e.g., State v. Boyette, __ N.C. App.
__, 735 S.E.2d 371 (2012). Defendant also concedes that the
trial court’s use of the phrase “the victim” comports with the
North Carolina Pattern Jury Instructions and fails to provide
any North Carolina cases supporting a departure from the case
law discussed above.
Moreover, we note that Defendant admitted to two acts of
intercourse with Audrey. Such acts constitute crimes in North
Carolina. See, e.g., N.C. Gen. Stat. § 14-27.7A(a) (“A defendant
is guilty . . . [of statutory rape under this section] 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 . . . .”).
Therefore, even accepting the validity of Defendant’s argument
as evidenced by his citation to the Connecticut Supreme Court’s
opinion in State v. Cortes, “references to the complainant as
the ‘victim’ [are] inappropriate where the very commission of a
crime is at issue.” 276 Conn. 241, 249 n.4, 885 A.2d 153, 158
n.4 (2005) (citations omitted; emphasis added). Here, whether
Defendant committed some crime against Audrey was not at issue.
Thus, under any measure, the trial court did not err, much less
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plainly err, in referring to Audrey as “the victim.”
Accordingly, Defendant’s first argument is overruled.
II. Sergeant Shull’s Testimony
Second, Defendant contends that the trial court committed
plain error in allowing Sergeant Shull to testify that Audrey’s
unsworn out-of-court statements regarding the two incidents were
“consistent with” Audrey’s testimony at trial. For support,
Defendant asserts that Sergeant Shull’s testimony constituted an
improper and prejudicial statement of opinion by a lay witness
pursuant to State v. Norman, 76 N.C. App. 623, 626–27, 334
S.E.2d 247, 249–50 (ordering a new trial when the issue was
properly preserved for appellate review on grounds that the
second witness should have been asked, “at the least,” to recall
the substance of the first witness’s pre-trial statements before
giving his opinion as to whether the first witness’s trial
testimony was consistent), disc. rev. denied, 315 N.C. 188, 337
S.E.2d 863 (1985) and State v. Ramey, 318 N.C. 457, 467–73, 349
S.E.2d 566, 572–76 (1986) (holding that the witness’s testimony
that the victim had never told him anything inconsistent was
inadmissible, but did not rise to the level of prejudicial error
and, therefore, concluding that the defendant “received a fair
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trial free from prejudicial error”). Again, we conclude that
Defendant’s argument lacks merit.
Defendant admittedly failed to object to Sergeant Shull’s
testimony at trial. Therefore, as discussed above, the issue is
reviewable only for plain error. Given the plain error analysis
required in this case and pursuant to the decision upon which
Defendant himself relies, we need not delve into a discussion of
the admissibility of Sergeant Shull’s testimony. The Norman case
was decided on a preserved issue and, thus, is not applicable to
the plain error analysis we must use here. Furthermore, the
Ramey case concluded that, while the trial court erred in
admitting the testimony, such error was not sufficient to
constitute plain error. Thus, even if Sergeant Shull’s testimony
was inadmissible in this case, a new trial could only be
required if that testimony was so prejudicial as to have
probably affected the outcome of the trial. We hold that it was
not.
Plain error is error that reaches to the core of the case
and casts significant doubt on the verdict rendered and the
justness of that decision. Here, Sergeant Shull’s testimony that
Audrey’s pre-trial statements were “consistent with” Audrey’s
trial testimony did not carry such an impact as to prejudice
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Defendant in that way. Audrey’s testimony is internally
consistent and provides sufficient detail regarding the nature
of Defendant’s actions to justify the jury’s verdict. In
addition, Sergeant Shull offered uncontested testimony that
Defendant admitted to having sex with Audrey on at least two
occasions. Defendant failed to present any evidence of his own.
Thus, even if the jury had not heard that Audrey’s original
statements to Sergeant Shull were consistent with her testimony
at trial, it is inconceivable that it would have come to a
different conclusion. Therefore, to the extent Sergeant Shull’s
testimony about her pre-trial discussion with Audrey may have
been inadmissible, we hold that such error was not so basic and
so prejudicial that the trial court should have stricken it ex
mero motu. The challenged testimony simply had no effect on the
jury’s verdict. Accordingly, Defendant’s second argument is
overruled.
III. Ineffective Assistance of Counsel
Lastly, Defendant argues in the alternative that he was
denied effective assistance of counsel on both of the issues
described above because of his trial counsel’s failure to
object. We disagree.
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“IAC claims brought on direct review will be decided on the
merits when the cold record reveals that no further
investigation is required . . . .” State v. Fair, 354 N.C. 131,
166, 557 S.E.2d 500, 524 (2001) (citations omitted), cert.
denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
To successfully assert an [IAC] claim, [the]
defendant must satisfy a two-prong test. See
Strickland v. Washington, 466 U.S. 668, 687,
. . . 80 L. Ed. 2d 674, 693 (1984). First he
must show that counsel’s performance fell
below an objective standard of
reasonableness. Second, once [the] defendant
satisfies the first prong, he must show that
the error committed was so serious that a
reasonable probability exists that the trial
result would have been different.
State v. Harris, __ N.C. App. __, __, 729 S.E.2d 99, 106
(certain citations omitted), disc. review denied, 366 N.C. 409,
735 S.E.2d 339 (2012). “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’”
State v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010)
(citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).
We have already determined that the trial court’s use of
the words “the victim” in its jury charge was not error.
Therefore, Defendant’s trial counsel did not act unreasonably in
not objecting to the court’s charge because the court’s use of
the phrase “the victim” was not erroneous. Accordingly,
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Defendant’s ineffective assistance of counsel argument is
overruled as it pertains to the trial court’s use of the phrase
“the victim.”
On the issue of Sergeant Shull’s testimony, we failed to
address Defendant’s argument on the merits. Instead, we held
that it was not plain error for the trial court to decline to
strike Sergeant Shull’s testimony because that testimony would
not have affected the result. On appeal, Defendant argues that
we may not apply our decision under the plain error standard to
our decision regarding IAC because the two standards are
different and “[t]his Court is not at liberty to impose a
standard stricter than Strickland.” This argument is without
merit.
In order to show ineffective assistance of counsel, the
complaining party must show a “reasonable probability” that the
result would have been different. Harris, __ N.C. App. at __,
729 S.E.2d at 106 (emphasis added). As discussed above, we
believe it is unlikely that the result of the trial would have
been different if Defendant’s trial counsel had objected to
Sergeant Shull’s testimony and that testimony had been stricken.
For the same reasons, we do not believe that there is a
“reasonable probability” that the result would have been
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different had the testimony been stricken. Therefore,
Defendant’s IAC argument is overruled. Defendant had a fair
trial, free of prejudicial error.
NO ERROR in part; NO PREJUDICIAL ERROR in part.
Judges GEER and ERVIN concur.
Report per Rule 30(e).