State v. Hunt , 221 N.C. App. 489 ( 2012 )

STEPHENS, Judge.

Procedural History and Evidence

In State v. Hunt, _N.C. App. _, _, 710 S.E.2d 339, 340 (2011), this Court vacated Defendant Samuel Kris Hunt’s convictions for second-degree sexual offense and crime against nature after concluding that the State failed to present sufficient evidence of the victim’s mental disability to survive Defendant’s motions to dismiss. Our Supreme Court reversed, holding that the State presented sufficient evidence to survive Defendant’s motions to dismiss the charges of second-degree sexual offense and crime against nature, and remanded for this Court to consider Defendant’s issues on appeal not addressed by our original opinion. State v. Hunt, _N.C. _, _, 722 S.E.2d 484, 492 (2012).

On 6 October 2009, Defendant was tried on charges of second-degree sexual offense and crime against nature during the criminal session of the Randolph County Superior Court. The State’s evidence tended to show that on 25 May 2008 Defendant’s daughter Madison¹ had a sixteenth birthday party followed by a sleepover at Defendant’s home, which her friends Clara, then age seventeen, and Ashley attended. Defendant and his wife went out drinking with another couple around 9:00 p.m., returning at about 3:00 a.m. the next morning.

Clara testified that, when Defendant returned home, she was watching a movie with Madison, Ashley, and Defendant’s four younger children. Defendant came and tapped Clara on the arm, motioning for her to follow him into the kitchen. Once in the kitchen, Defendant began touching Clara on her breasts, vagina, and “butt” and asked if she “like[d] it[.]” Defendant then pulled his penis out of his sweatpants and forced Clara’s head down. Clara was scared, but put Defendant’s penis in her mouth. When Clara tried to raise her head, Defendant pushed her head back down and forced his penis into her mouth again. Defendant told her, “Don’t tell nobody. I can get in serious trouble.” Eventually Clara pulled her head away. Defendant then told Clara to go to a bedroom and take off her clothes, but instead she returned to the living room.

Clara told Ashley what Defendant had done, and later told Madison, asking for protection from Defendant. The next morning, Madison told her mother what had happened. The mother confronted Defendant, who eventually admitted what had occurred. When Clara returned home that morning and told her father what had happened, he took her to the police station to give a statement. Defendant was subsequently detained by police. The State presented testimony from Clara’s special education teacher, school resource officer, and social workers regarding Clara’s mental disability, to wit, that Clara was “classified as intellectually disabled in the mild category[,]” had an IQ lower than 70, and was enrolled in classes for children with learning disabilities.

Defendant testified that, when he returned home from a night of drinking, he believed Clara was interested in a sexual encounter. Defendant admitted that Clara performed oral sex on him, but claimed that this contact was consensual. Defendant stated that Clara had called boyfriends from his home. He said Clara’s father had told Defendant he was proud of Clara being a “straight A student.” Defendant denied knowing that Clara had any mental disability until the police informed him of this fact. Defendant also testified that while he was in school, he took “Slow Learning Disability” classes, had failed the second and eighth grades, and failed in his first attempt to obtain his GED.

On 8 October 2009, a jury found Defendant guilty of second-degree sexual offense and crime against nature. The trial court consolidated the convictions and sentenced Defendant to 73-97 months in prison. Defendant gave notice of appeal in open court.

Discussion

On remand, we address Defendant’s two remaining arguments on appeal: (1) that Defendant received ineffective assistance of counsel at trial; and (2) that the trial court erred by not granting Defendant’s motion for a mistrial based on defense counsel’s purported conflict of interest. As discussed below, we vacate Defendant’s conviction for crime against nature as a violation of constitutional prohibitions on double jeopardy. We find no error concerning Defendant’s conviction for second-degree sexual offense.

Ineffective Assistance of Counsel Claims

A. “Opening the Door” to Evidence of Defendant’s Other Sexual Offense Charges ²

Defendant argues that his trial counsel provided ineffective assistance when he asked Defendant on direct examination if he had “ever done such a thing before,” despite knowing of other sexual offense charges pending against Defendant. We disagree.

A criminal defendant has a constitutional right to the effective assistance of counsel. State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985) (citation omitted).

To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test. First, he must show that counsel’s performance fell below an objective standard of reasonableness. Second, once 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 absent the error. However, 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.

State v. Batchelor, 202 N.C. App. 733, 739, 690 S.E.2d 53, 57 (2010) (citations, quotation marks, and brackets omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698 (1984). Our appellate courts “engage[] in a presumption that trial counsel’s representation is within the boundaries of acceptable professional conduct” when reviewing ineffective assistance of counsel claims. State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406 (2004) (citation omitted).

Here, at the time of trial, Defendant faced sexual offense charges based on allegations by his daughter Madison that Defendant had sexually abused her when she was between the ages of eleven and fifteen. When trial counsel asked Defendant if he had “ever done such a thing before,” Defendant replied, “No.” As a result, the State was allowed to call Madison to testify about Defendant’s alleged sexual abuse of her. Defendant contends that his trial counsel’s performance fell below an objective standard of reasonableness because there was no strategic benefit in opening the door to Madison’s testimony on this point. We agree. However, because we conclude that the evidence about the other pending sexual offense charges did not likely affect the jury’s verdicts, Defendant was not prejudiced by his trial counsel’s error and, accordingly, has failed to successfully assert an ineffective assistance of counsel claim.

A defendant commits second-degree sexual offense when he engages in a sexual act with a victim who is mentally disabled and who the defendant knew or reasonably should have known was mentally disabled. N.C. Gen. Stat. § 14-27.5(a)(2) (2011). Defendant admitted to engaging in a sex act with Clara, and substantial evidence of Clara’s mental disability was presented. Thus, the main factual question for the jury was whether Defendant knew or should have known about Clara’s mental disability.

The evidence that came in when Defendant’s trial counsel opened the door concerned Defendant’s alleged sexual offenses against his own daughter while she was a minor and the resulting criminal charges Defendant faced at the time of trial. This evidence suggested that Defendant was inclined to (1) commit incestuous acts and (2) have sexual encounters with a girl he knew to be underage. Thus, this evidence was irrelevant to the main issue before the jury in deciding the second-degree sexual offense charge: Defendant’s awareness of Clara’s mental disability.

We recognize that evidence of Defendant’s alleged sexual offenses against his daughter reflected poorly on Defendant’s character, to say the least, and may have suggested to the jury that Defendant was a thoroughly unpleasant person who showed an appalling lack of judgment when it came to his roles as a father and an adult man. However, Defendant had already revealed this distasteful aspect of himself to the jury by admitting that he had a sexual encounter with his daughter’s seventeen-year-old friend in the family kitchen during his daughter’s sixteenth birthday sleepover while his daughter and other children were present in the next room. As such, we cannot conclude that the evidence in question likely altered the jury’s verdict. Accordingly, we overrule Defendant’s Ineffective assistance of counsel challenge to his conviction for second-degree sexual offense.

B, Double Jeopardy

Defendant also argues that he received ineffective assistance of counsel to the extent his trial counsel failed to argue double jeopardy regarding the second-degree sexual offense and crime against nature charges against him, and in the alternative, that if trial counsel did adequately raise the issue, the court erred in failing to arrest judgment upon one of his subsequent convictions. We agree.

Double jeopardy bars additional punishment where the offenses have the same elements or when one offense is a lesser included offense of the other. On the other hand, where each offense requires proof of an additional element not included in the other, the offenses are distinct and the defendant may be prosecuted and punished for each offense. If ... a single act constitutes an offense against two statutes and each statute requires proof of an additional fact which the other does not, the offenses are not the same in law and in fact and a defendant may be convicted and punished for both.

State v. McAllister, 138 N.C. App. 252, 255-56, 530 S.E.2d 859, 862 (2000) (citations omitted).

As noted by our Supreme Court in the case at bar, following the United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003), a defendant challenged the constitutionality of our State’s crime against nature statute, N.C. Gen. Stat. § 14-177, asserting that there was no legitimate state interest in regulating many types of sexual acts traditionally charged under the statute. See State v. Whiteley, 172 N.C. App. 772, 616 S.E.2d 576 (2005). This Court held the crime against nature statute was constitutional, but also held that it can only “properly be used to prosecute conduct in which a minor is involved, conduct involving non-consensual or coercive sexual acts, conduct occurring in a public place, or conduct involving prostitution or solicitation].]” Id. at 779, 616 S.E.2d at 581. Thus, following Lawrence and Whiteley, a conviction under section 14-177 requires proof not only of commission of an unnatural sexual act (as pre-Lawrence~), but also proof of one of the additional four circumstances listed in Whiteley.

As discussed supra, second-degree sexual offense, as charged in Defendant’s indictment, required proof of (1) a sexual act with a victim who was (2) mentally disabled such that she could not consent to the sexual act, and (3) who Defendant knew or should have known could not consent. N.C. Gen. Stat. § 14-27.5(a); see also State v. Washington, 131 N.C. App. 156, 167, 506 S.E.2d 283, 290 (1998) (holding that a person who is mentally disabled is “statutorily deemed incapable of consenting” to sexual acts). Also, as discussed above, the crime against nature charge here required proof of (1) a sex act. (2) that was nonconsensual based on the victim’s mental disability. Whiteley, 172 N.C. App. at 779, 616 S.E.2d at 581; Hunt, _ N.C. at _., 722 S.E.2d at 490-91. The specific sex act committed by Defendant was fellatio, which is a “sexual act” for purposes of both statutes. N.C. Gen. Stat. § 14-27.1(4) (2011); see also State v. Jacobs, 128 N.C. App. 559, 495 S.E.2d 757 (holding that fellatio is a sexual act for purposes of second-degree sexual offense), cert. denied, 348 N.C. 506, 510 S.E.2d 665 (1998); State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843, cert. denied and appeal dismissed, 298 N.C. 303, 259 S.E.2d 304 (1979) (holding that fellatio is a crime against nature), appeal dismissed, 445 U.S. 947, 63 L. Ed. 2d 782 (1980).

Here, the trial court instructed the jury that to find Defendant guilty of second-degree sexual offense, it must find beyond a reasonable doubt that Defendant (1) committed the sex act of fellatio with Clara who was (2) mentally disabled such that she could not consent and that Defendant (3) knew or should reasonably have known of Clara’s mental disability. As to the crime against nature charge, the trial court instructed the jury that to return a guilty verdict, it must find beyond a reasonable doubt that Defendant (1) committed the unnatural sex act of fellatio with Clara, (2) “an adult who was mentally disabled or incapacitated or physically helpless so as to be incapable of properly consenting.” Thus, on the particular facts of Defendant’s case, crime against nature was a lesser-included offense of second-degree sexual offense, and entry of judgment on both convictions subjected Defendant to unconstitutional double jeopardy. See McAllister, 138 N.C. App. at 255, 530 S.E.2d at 862.

We recognize that in discussing the sufficiency of the evidence to withstand Defendant’s motions to dismiss the crime against nature charge, our Supreme Court also referred to the presence of other Whiteley circumstances in this case, specifically that Clara was coerced and was a minor.³ Hunt, _N.C. at _, 722 S.E.2d at 490-91 (“Here, the record contains sufficient evidence that [Defendant engaged in nonconsensual or coercive sexual acts with a minor. As [Defendant concededly knew, Clara was seventeen at the time of her encounter with him.”). Either of these Whiteley circumstances would have been sufficient to support the crime against nature charge and would have required proof of an additional fact not part of the second-degree sexual offense charge, avoiding double jeopardy. However, as noted supra, as to the crime against nature charge, the trial court only instructed the jury on lack of consent based upon Clara’s mental disability. Accordingly, we must vacate Defendant’s conviction for crime against nature and remand to the trial court for resentencing.

Motion for Mistrial

Defendant also argues that the trial court erred in refusing to grant his motion for a mistrial. We disagree.

“Whether to grant a motion for mistrial is within the sound discretion of the trial court and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). A trial court abuses its discretion only where “its ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citation omitted). A mistrial should be declared only “when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.” State v. Norwood, 344 N.C. 511, 537, 476 S.E.2d 349, 361 (1996) (citation and quotation marks omitted), cert. denied, 520 U.S. 1158, 137 L. Ed. 2d 500 (1997).

Here, near the end of the State’s case-in-chief, the prosecutor raised a concern about possible perjury by the Defendant’s teenage son. Out of the presence of the jury, the trial court called to the stand a therapeutic counselor who had custody of Defendant’s son at the time of trial. The counselor testified on voir dire that, following a phone conversation with defense counsel the night before, the son had asked what would happen to someone who lied in court. The counselor also testified that he had not actually heard defense counsel telling the son what to say in court. Defendant did not move for a mistrial. At the close of the State’s evidence, Defendant moved to dismiss on various grounds, all of which were denied by the trial court. The trial court also addressed the counselor’s voir dire testimony, remarking that while an attorney cannot offer evidence he knows to be false, a good trial lawyer would certainly prepare a witness and go over the witness’ testimony. Neither side raised any objection to the trial court’s remarks, and subsequently, defense counsel indicated that he would not call the son as doing so would not “help either side.”

Later, midway through Defendant’s case, defense counsel did move for a mistrial, stating that he might now want to call the son, but feared that he (defense counsel) would be called as a witness if the son testified. Following a discussion with defense counsel, the trial court denied the motion, stating that until the son was called and testified, there were no grounds for a mistrial. The trial court also assured defense counsel that if the son were called and anything occurred requiring a mistrial, it would reconsider the motion. However, the defense never called the son to testify.

The dissent suggests that the trial court was required to conduct an evidentiary hearing into the matter. However, our Supreme Court has specifically rejected the argument that a trial court is required to hold an evidentiary hearing into a possible conflict of interest, stating that “trial courts can determine in their discretion whether such a full-blown proceeding [an evidentiary hearing] is necessary or whether some other form of inquiry is adequate and sufficient.” State v. Choudhry, 365 N.C. 215, 223, 717 S.E.2d 348, 354 (2011).

Here, regarding the possible conflict of interest, the trial court held a voir dire of the therapeutic counselor, discussed the latitude and limits of an attorney’s responsibility to prepare witnesses for trial, discussed the possible grounds for a mistrial with defense counsel extensively, and assured defense counsel that a mistrial would be declared if grounds arose as the trial proceeded. These actions reflect the trial court’s consideration of defense counsel’s potential conflict of interest to the extent it believed was “adequate and sufficient.” Id. In light of this consideration, we cannot characterize the court’s subsequent denial of Defendant’s motion for a mistrial as “so arbitrary that it could not have been the result of a reasoned decision.” Hayes, 314 N.C. at 471, 334 S.E.2d at 747. As such, we see no abuse of discretion in the trial court’s handling of this situation. Accordingly, we overrule this argument.

Conclusion

In sum, we conclude that Defendant received effective assistance of counsel and a trial free from prejudicial error as to the second-degree sexual offense charge, but vacate his conviction for crime against nature and remand to the trial court for resentencing.

NO ERROR IN PART; VACATED AND REMANDED IN PART.

Chief Judge MARTIN concurs. Judge STROUD concurs in part and dissents in part.

1 . We refer to Defendant’s minor daughter and the party guests by pseudonyms to protect their identities.

2 . The phrase “opening the door” refers to the principle that “[w]here 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) (citations omitted).

3 . We note that Clara was seventeen years old at the time of the offense. Thus, based upon Clara’s age alone (rather than on her mental disability), Defendant’s sexual relations with her, while perhaps morally reprehensible, would not be criminal under our statutes regarding indecent liberties with a child, N.C. Gen. Stat. § 14-202.1 (2011), statutory rape, N.C. Gen. Stat. § 14-27.7A (2011), or any other criminal statute, as the “age of consent” in this State is sixteen (in the absence of force or other additional circumstances). See also N.C. Gen. Stat. § 14-27.2 (2011) (first-degree rape); N.C. Gen. Stat. § 14-27.2A (2011) (rape of a child); N.C. Gen. Stat. § 14-27.4 (2011) (first-degree sexual offense); N.C. Gen. Stat. § 14-27.4A (2011) (sexual offense with a child). However, in light of our Supreme Court’s opinion in Hunt, it appears that sexual acts committed with a consenting sixteen- or seventeen-year-old could sustain a charge under the crime against nature statute.