State v. Dinan , 233 N.C. App. 694 ( 2014 )

NO. COA13-1022
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Onslow County
No. 10 CRS 52727
COREY DINAN
Appeal by defendant from judgments entered 8 March 2013 by
Judge Jack W. Jenkins in Onslow County Superior Court. Heard in
the Court of Appeals 17 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
James Goldsmith, Jr. for defendant.
ELMORE, Judge.
Corey Dinan (defendant) appeals his convictions of
intentional child abuse resulting in serious bodily injury under
N.C. Gen. Stat. § 14-318.4(a3) and of assault on a child under
the age of twelve in violation pursuant to N.C. Gen. Stat. § 14-
33(c)(3). We hold that defendant received a trial free from
error in part. Defendant’s final issue is dismissed without
prejudice and allows defendant the opportunity to file
appropriate motions with the trial court.
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I. Factual Background
Abby1, the victim in this case, is the biological daughter
of defendant and Sarah F., defendant’s now ex-wife. Abby was
born 17 February 2010 and was approximately six-weeks-old at the
time of the requisite child-abuse incident. At defendant’s
trial, Ms. F. testified that on 4 April 2010, defendant gave
Abby her early-morning bottle. When Ms. F. woke, she went to
the family room and saw Abby in her “princess swing” and
defendant sitting “Indian style” on the floor. Abby was
struggling to breathe. Ms. F. asked, “what’s wrong with my
baby?” Defendant responded, “I don’t know. I don’t know.
She’s been like that all morning.” Ms. F. demanded that they
take Abby to Onslow Memorial Hospital (Onslow). Abby was kept
over-night at Onslow before being transferred to Pitt Memorial
Hospital (now Vidant) for additional treatment.
Dr. Coral Steffey (Dr. Steffey), pediatrician and expert
in the field of pediatrics and child abuse, testified that on 5
April 2010 she was called to Vidant to consult on Abby’s
condition. She testified that Abby was transferred from Onslow
to Vidant for additional treatment after physicians discovered
that Abby’s oxygen saturations were low, that she was having
1
Pseudonyms are used throughout the opinion to protect the
identities of minors and other persons involved in this action.
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difficulty breathing, that she was dehydrated, and that x-rays
showed multiple rib fractures and a hemothorax. In fact, Abby
had 24 identifiable rib fractures, both new and healing. X-rays
taken of Abby’s ribs 17 days prior did not reveal any rib
fractures. Accordingly, Dr. Steffey opined that between 18
March and 4 April 2010, someone injured Abby on at least two
occasions to the point that she sustained multiple rib
fractures. Dr. Steffey read the opinion from her medical report
into the record, as follows: “There is no medical explanation
for Abby’s constellation of injuries, which include healing and
acute rib fractures with hemothorax, intra-cranial hemorrhage,
subconjunctival hemorrhages and bruising to her ankle. No
history of trauma has been provided to explain Abby’s injuries.
The constellation of inexplicable injuries is consistent with a
diagnosis of child physical abuse with inflicted injuries, on
more than one occasion.”
Elizabeth Pogroszewski, social worker for Onslow County
Department of Social Services, testified that on 4 April 2010
she asked defendant his opinion as to what contributed to Abby’s
injuries. He responded, “[I] must have held her too tight.”
Additionally, four officers with the Jacksonville Police
Department testified at trial. Officer Timothy Sawyer testified
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that defendant made a written statement in which he admitted to
holding Abby too tight. Detective Anthony Ramirez testified
that defendant demonstrated for him how he picked up Abby and
held her with his elbows locked. Detective Trudy Allen
testified that when she asked defendant how Abby was injured, he
made “a shaking motion, just as if he would shake up the
contents of a canister.” At that point, she arrested defendant
for felony child abuse. Officer Jason Lagana testified that
defendant made the following spontaneous statement to him: “I
guess you get charged for holding your kid too tight.”
At trial, defendant sought to exclude the testimony of
Brent Cross, defendant’s friend and fellow Marine, and Megan
Dinan, defendant’s former ex-wife. After voir dire, the trial
court denied defendant’s motions in limine, finding that the
proffered testimony was relevant as it went to the issue of
“knowledge, absence of mistake and intent.” Further, the trial
court found that the probative value of the 404(b) testimony was
not substantially outweighed by its prejudicial effect.
Brent Cross testified that in 2006 he was helping defendant
with a home-improvement project when defendant’s then wife,
Megan Dinan, left the couple’s napping infant son in defendant’s
care. When the baby woke crying, Mr. Cross testified that
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defendant became “agitated.” Defendant went to the baby’s room
and, through the monitor, told Mr. Cross, “I got the baby now.
You can go ahead and shut the baby monitor off. I got it.” Mr.
Cross had an “instinct” to keep the monitor on. When the baby
was picked up, Mr. Cross testified that he heard the baby’s cry
become “hysterical” and he heard defendant’s tone change from
“upset” to “just anger.”
Megan Dinan testified that she and defendant had two
biological sons together, Ian and Sam. However, after
divorcing, defendant relinquished his parental rights. She
testified that when Ian was approximately eight-weeks old, he
woke one morning with “one tiny little bruise” on his chest.
Defendant was responsible for feeding Ian during the night. The
following morning, Ian woke “covered in bruises, head to toe.
He was so bruised that his earlobes were bruised.” Ian was
hospitalized and diagnosed as having a virus, which doctors
thought could account for his severe bruising. After Ian was
released from the hospital, Ms. Dinan noted subsequent bruising
in the shape of finger prints on Ian. Ms. Dinan testified that
when she confronted defendant, he responded, “it is my
handprint, [] I was holding him last night and I think I held
him too tight.”
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Defendant testified on his own behalf at trial. He alleged
that he never “mistreated” Abby on 4 April 2010 or any time
prior. He admitted to accidentally treating her like a one-year
old instead of a six-week old. After the defense rested, the
jury found defendant guilty of intentional child abuse resulting
in serious bodily injury and of assault on a child under the age
of twelve. The trial court sentenced defendant on 8 March 2013
to a term of 73 months to 97 months imprisonment, plus 60 days.
II. Analysis
A. Rule Violation
Initially, we direct defense counsel’s attention to Rule 28
of the North Carolina Rules of Appellate Procedure. Rule
28(b)(4) requires counsel to include “a statement of the grounds
for appellate review. Such statement shall include citation of
the statute or statutes permitting appellate review.” N.C.R.
App. P. 28(b)(4). In his brief, defense counsel provides:
This Court is called upon to determine
whether [defendant] was deprived of his
fundamental right to a fair trial where
evidence of uncharged prior bad acts were
introduced to establish criminal propensity,
and where the trial court failed to make a
determination that the probative value
outweighed any prejudice. . . . Further,
this Court is called upon to determine
whether [defendant] received ineffective
assistance of counsel[.]
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Defense counsel has violated Rule 28(b)(4). The above
“statement” fails to reference any statute which would allow for
appellate review—defense counsel has merely reiterated the
issues he raises on appeal. Here, defense counsel is licensed
in Florida. Nevertheless, we urge defense counsel and all
counsel to be mindful of our Rules of Appellate Procedure.
Defendant first argues that the trial court erred in
admitting testimony relating to his “uncharged prior bad acts”
under Rule 404(b). We are unable to address the merits of this
issue because defendant offers no clear or reasoned argument in
support of his position as required by Rule 28(b)(6). See
N.C.R. App. P. 28(b)(6). Specifically, in defendant’s first
issue he fails to direct us to the testimony that he argues it
was error for the trial court to admit. We assume that
defendant challenges the testimony of Mr. Cross and Ms. Dinan
pursuant to Rules 404(b) and 403, as these witnesses are
referenced in this issue. Further, defendant’s argument is
presented in a nonsensical manner. At the very least, defendant
is required to direct us to the challenged testimony—it is not
this Court’s duty to craft defendant’s argument for him.
Accordingly, defendant’s first argument is abandoned on appeal
pursuant to Rule 28(b)(6).
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B. Admission of 404(b) Evidence
Alternatively, based on defendant’s recitation of the facts
and a review of the transcript, we assume arguendo that in his
first issue, defendant is objecting to the admission of the
unfavorable character evidence offered by Mr. Cross and Ms.
Dinan. Nevertheless, we remain unable to address the merits as
defendant has failed to preserve this issue for our review.
“[T]o preserve for appellate review a trial court’s
decision to admit testimony, objections to [that] testimony must
be contemporaneous with the time such testimony is offered into
evidence and not made only during a hearing out of the jury’s
presence prior to the actual introduction of the testimony.”
State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010)
(citations and quotations marks omitted). At trial, defendant
did not object to the admission of what we believe constitutes
the challenged testimony of Mr. Cross and Ms. Dinan. Therefore,
he did not preserve the issue of the admissibility of this
testimony for our review. Id.Failure to properly preserve an argument restricts this
Court’s review on appeal to plain error. However, Rule 10(a)(4)
states that such review is only available “when the judicial
action questioned is specifically and distinctly contended to
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amount to plain error.” N.C.R. App. P. 10(a)(4). In his brief,
defendant does not ask this Court to review the issue under the
plain error standard. When the State noted defendant’s failure
to argue plain error in the State’s brief, defendant attempted
to cure this deficiency by mentioning plain error in defendant’s
reply brief. However, a reply brief is not an avenue to correct
the deficiencies contained in the original brief. See N.C.R.
App. P. 28(b)(6); see also State v. Davis, 202 N.C. App. 490,
497, 688 S.E.2d 829, 834 (2010) (“[B]ecause [d]efendant did not
‘specifically and distinctly’ allege plain error as required by
[our appellate rules], [d]efendant is not entitled to plain
error review of this issue.”).
C. Scope of Prosecutor’s Cross-Examination
Defendant next contends that the prosecutor’s improper
cross-examination deprived him of a fair trial. We are not
persuaded that the prosecutor questioned defendant in an
unreasonable manner.
Generally, “[t]he scope of cross-examination . . . is
within the sound discretion of the trial court, and its ruling
thereon will not be disturbed absent a showing of abuse of
discretion.” State v. Herring, 322 N.C. 733, 743, 370 S.E.2d
363, 370 (1988) (citation omitted). However, here defendant
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argues that we should review this issue under the plain error
standard of review. We agree. As such, defendant “must
demonstrate that a fundamental error occurred at trial.” State
v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “To
show that an error was fundamental, a defendant must establish
prejudice that, after examination of the entire record, the
error had a probable impact on the jurys finding that the
defendant was guilty.” Id. (citation and quotation omitted).
In the instant case, defendant takes issue with the
prosecutor’s line of questioning in three specific instances2.
First, he contends that the prosecutor inappropriately tried to
“place him at odds” with Sarah F. by asking, “[y]ou don’t
believe Sarah caused these injuries at all, do you?” and “[d]o
you believe that Sarah F. caused these injuries to Abby?”
Second, defendant argues that it was error for the prosecutor to
“challenge[] defendant to call [Detective Allen] a liar[.]” We
assume that defendant is referencing the following question:
“So Detective Allen, then, is lying about you [showing her how
you shook Abby]?” Defendant replied, “I wouldn’t say lie, just
changing facts about who said what.” Third, defendant argues
2
Defendant also argues that the prosecutor improperly questioned
Megan Dinan. However, we cannot address the merits of this
argument as counsel’s argument lacks sufficient specificity.
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that it was inappropriate for the prosecutor to ask, “how long
are you going to wait with that infant before you begin holding
him or her too tightly?” However, as to this last question, the
record shows that the trial judge sustained defense counsel’s
objection to the question and instructed the jury to disregard
it. In addition, the prosecutor withdrew the question. Thus,
defendant’s argument as to this question is moot.
Further, defendant makes no argument as to how he was
prejudiced by these questions; he merely contends that he was
“highly prejudiced by this impossible questioning[.]” Without a
showing of prejudice, defendant cannot establish that any
alleged error was a fundamental error. See State v. Cummings,
352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532
U.S. 997, 121 S. Ct. 1660, 149 L. Ed. 2d 641 (2001) (“[An] empty
assertion of plain error, without supporting argument or
analysis of prejudicial impact, does not meet the spirit or
intent of the plain error rule.”). Therefore, defendant’s
argument must be overruled. Assuming arguendo that defendant
made a showing of prejudice, defendant has not convinced this
Court that absent the prosecutor’s questions, the jury probably
would have reached a different verdict. The record contains
additional evidence of defendant’s guilt.
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D. Ineffective Assistance of Counsel
Lastly, defendant contends that defense counsel was
ineffective because he 1) completely misapprehended the law with
respect to the element of “intent,” 2) elicited damaging
testimony from the State’s witnesses and defendant, and 3)
permitted “prosecutorial misconduct” by failing to object to the
prosecutor’s questions. Given our conclusion in section “C,”
defendant’s third contention moot. We dismiss defendant’s
remaining arguments without prejudice to defendant’s right to
file appropriate motions in the trial court.
When raising claims of ineffective assistance of counsel,
the “accepted practice” is to bring these claims in post-
conviction proceedings, rather than on direct appeal. State v.
Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985).
Here, defendant has “prematurely asserted his ineffective
assistance of counsel claim” by directly appealing to this
Court. State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d 544,
548 (2001) (quotation and citation omitted).
Defendant raises potential questions regarding defense
counsel’s trial strategy. However, it is unclear from
defendant’s brief what specific conduct he challenges as being
ineffective. As such, we are unable to address the merits of
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defendant’s argument. To best resolve this issue, an
evidentiary hearing available through a motion for appropriate
relief is our suggested mechanism. Id.; see also State v. Ware,
125 N.C. App. 695, 697, 482 S.E.2d 14, 16 (1997) (dismissing the
defendant’s appeal where the issues could not be determined from
the record and concluding that “[t]o properly advance these
arguments, defendant must move for appropriate relief pursuant
to G.S. 15A–1415[ ] and G.S. 15A-1420[ ]”). “Upon the filing of
a motion for appropriate relief, the trial court will determine
the motion and make appropriate findings of fact.” Ware, 125
N.C. App. at 697, 482 S.E.2d at 16.
III. Conclusion
In sum, we deem defendant’s first issue abandoned on
appeal. Assuming arguendo that it is not abandoned, defendant
failed to properly preserve it for our review. We overrule
defendant’s second issue that he was prejudiced by the
prosecutor’s line of questioning. Finally, defendant’s
ineffective assistance of counsel claim is dismissed without
prejudice so that he may file appropriate motions in the trial
court.
No error in part; dismissed in part.
Chief Judge MARTIN and HUNTER, Robert N., concur.