Opinion
No. COA04-607
Filed 3 May 2005 This case not for publication
Appeal by defendant from judgments entered 9 October 2003 by Judge Kimberly S. Taylor in Stanly County Superior Court. Heard in the Court of Appeals 3 March 2005.
Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State. Gregory A. Newman, for defendant.
Stanly County No. 02 CRS 4211-4226.
Defendant (Alfredo Cesmas Ocampo) appeals from convictions for crimes perpetrated against his daughter N.O. We hold that defendant received a fair trial, free of prejudicial error.
The State's evidence presented at trial may be summarized as follows: When N.O.'s family was living in Texas and N.O. was twelve years old, defendant began having sexual intercourse with her. The first time this occurred, defendant unzipped her shorts and inserted his penis into her vagina. After this first occasion, N.O. told her mother. In response, the mother wept. Defendant had sexual intercourse with N.O. twice in Texas. After the family moved to North Carolina, the defendant continued having sexual intercourse with N.O. from the time she was twelve years of age in 1997 until she left home at sixteen years of age in 2001. During the course of these four years, defendant had intercourse with N.O. between three and four times each month, ceasing periodically for one or two months. Oftentimes, defendant rubbed N.O.'s breasts underneath and outside her clothing before having sexual intercourse with her. The incidents of abuse generally occurred when N.O.'s mother was at work and the children were left at home in defendant's care.
N.O. became pregnant by defendant and carried the baby for eight and one half months, delivering 12 June 1998. N.O. was twelve years of age when she became pregnant in the fall of 1997 and thirteen years of age when she delivered in June 1998. Defendant had sexual intercourse with N.O. one or two times in January 1998. As N.O.'s "stomach grew larger", defendant stopped having sexual intercourse with her for a few months. In conversations with health care personnel and a DSS social worker at the time of the baby's birth, N.O. denied defendant had sexually abused her. The baby was sent to live with relatives in Mexico.
A few months after the birth of N.O.'s baby, defendant resumed having sexual intercourse with N.O. approximately once each week. Defendant would stop having sexual intercourse with N.O. for a period of one or two months before resuming again. Defendant threatened to kill N.O.'s mother's family if N.O. told anyone about the abuse. Defendant also stated her mother would be sent to jail and her siblings taken away if she informed others of the abuse. Defendant did not stop having sexual intercourse with N.O. until she left home at sixteen years of age.
In November 2001, N.O. left the family's North Carolina home with her cousin, staying first with relatives in various towns in North Carolina, and then with other relatives in Mexico. In June 2002, N.O.'s maternal grandparents arranged for her to move to Texas. In July 2002, N.O. returned with her sister O.O. to North Carolina to report defendant's sexual abuse to police in Oakboro, North Carolina. Until July 2002, N.O. had not told anyone, other than her mother, that defendant sexually abused her.
O.O. testified that defendant sexually abused her. Defendant would rub her breasts on top of and underneath her clothing. Defendant also rubbed her "private" below her stomach under her clothes with his hand. Once, when O.O. was in the fifth or sixth grade, defendant pulled her skirt up, tried to pull her underwear off, and attempted to force her legs open. Defendant stopped when O.O. told him "God would punish him." O.O. believed defendant was attempting to have sexual intercourse with her. At the time, O.O. had stayed home from school to care for her younger siblings; O.O.'s mother was at work. O.O. further testified that defendant began rubbing her breasts when she was ten years old while the family was living in Texas. Defendant continued to rub her breasts, approximately every weekend, after the family moved to North Carolina. O.O. testified she also saw defendant rub the breasts of her sisters N.O., P.O., and Q.O. on the outside of their clothing. O.O. told her mother that defendant was touching her. In response, her mother wept.
O.O. testified further that, on 3 July 2000, she heard N.O. "screaming" from a room inside the house for defendant "not to hit her". O.O. ran out of the house, knocked on the window of the room where N.O. and defendant were, and said that she was "going to tell the police everything." O.O. ran to the Oakboro police station. There, she reported she was "scared her father was hitting her sister." Officer Terry DeRhodes escorted O.O. home, interviewed various family members and, after asking O.O. whether she felt safe, left the residence. Following this incident, O.O. no longer felt safe living at home. She left the family permanently to live with relatives, first in another town in North Carolina, and then in Mexico.
After O.O. had been living in Mexico for over a year, N.O. arranged for her to return to live with her and other relatives in Texas. Once back in Texas, O.O. told her aunt she was worried about the safety of her mother and siblings, who were then living with defendant in North Carolina. O.O. and N.O. traveled with their uncle and grandfather to North Carolina. On 29 July 2002, O.O. and N.O. reported defendant's sexual abuse to the Oakboro police. Until July 2002, O.O. had not informed anyone, other than her mother, that defendant rubbed her breasts.
Officers Donald Whitley and Terry DeRhodes of the Oakboro Police Department both testified regarding their investigation of the abuse charges which give rise to the instant appeal. Officer DeRhodes also testified to the events surrounding the July 2000 incident when O.O. first went to the Oakboro police department. Social worker Lora Umberger testified about her role in interviewing N.O. and O.O. pursuant to the investigation by the Oakboro Police Department initiated in July 2002.
Defendant's evidence consisted largely of the testimony of defendant and two additional witnesses. Defendant denied sexually abusing his daughters. He denied forcing N.O. onto the bed, spreading her legs, and inserting his penis into her vagina. He denied touching his daughters' breasts. He denied fathering N.O.'s baby. He stated he never had a good relationship with his wife's family because they did not accept him as a son-in-law.
N.O.'s mother testified for defendant. She stated that she had never seen defendant touch her daughters in an inappropriate way. She did not know of any sexual abuse by him of the girls. A third daughter, P.O., testified that statements she had previously made to social worker Lora Umberger, that defendant had touched her breasts on the outside of her clothing with his hand, were not true. P.O. stated that defendant had never touched her inappropriately and she had never seen him touch any of the other children inappropriately.
Defendant was convicted of four counts of first degree statutory rape of a child under the age of thirteen years, four counts of statutory rape of a person of the age of thirteen years, and eight counts of felony incest. From these convictions and judgments, defendant appeals.
In his first argument on appeal, defendant contends defense counsel's representation was so deficient that he was deprived of his constitutional right to a fair trial. Defendant contends that defense counsel's representation was deficient in that he (1) failed to object to testimony regarding alleged sexual abuse by defendant of N.O. and O.O. in Texas, (2) failed to make any pre-trial motions in limine to preclude testimony from N.O. and O.O. concerning defendant's alleged sexual abuse of them in Texas, and (3) elicited damaging testimony in his cross-examination of N.O. and O.O. regarding defendant's alleged sexual abuse of them in Texas. For the reasons which follow, we disagree.
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694 (1984). A "stringent standard of proof" is required to substantiate ineffective assistance of counsel claims. See State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871 (1974). "When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). Defendant must meet a two-part test when arguing his counsel provided ineffective assistance:
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 errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
Defendant's ineffective assistance of counsel argument is essentially based on the contention that trial counsel did not consistently seek to preclude evidence of defendant's sexual abuse of N.O. and O.O. in Texas on the grounds that such acts occurred outside the jurisdiction where the acts giving rise to the indictments arose. Defendant argues that the introduction of such evidence impermissibly "inflame[d] the jurors' sense of moral justice" and, in addition, confused the jurors, making it "impossible to determine how . . . [to] make distinctions between the acts committed by the [d]efendant in Texas and those in North Carolina."
While defense counsel did not object to evidence regarding defendant's alleged sexual abuse of N.O. and O.O in Texas because it occurred in Texas, defendant's attorney did seek to exclude O.O.'s testimony in toto following a voir dire examination. Defense counsel argued, in part, that the slight probative value of the evidence was far outweighed by its potential prejudice to defendant.
First, we observe that the evidence which is the subject of defendant's assertion of ineffective assistance fits squarely within the allowances of Rule 404(b) of the North Carolina Rules of Evidence. N.C.R. Evid. § 8C-404(b) (2003) ("Evidence of other crimes, wrongs, or acts is . . . admissible [as] proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. . . ."). "[T]he ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial[.]" State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988) (citations omitted). Defendant makes no argument that O.O.'s testimony should have been excluded because the alleged acts of sexual abuse were too remote in time or that the factual circumstances of the alleged acts against N.O. and O.O. in Texas were too dissimilar from those occurring in North Carlina.
The trial court admitted the evidence of defendant's prior alleged sexual abuse of his daughters O.O., P.O., Q.O. to prove opportunity, intent and plan to commit the sexual acts he was accused of against N.O.
At the least, the evidence concerning the abuse of N.O. in Texas helped demonstrate a continuing plan on the part of defendant to abuse N.O. See State v. Hobson, 310 N.C. 555, 561, 313 S.E.2d 546, 549 (1984) ("[W]e have held admissible evidence which tends to show prior offenses of the same kind committed by the defendant with the prosecuting witness[.]"). Furthermore, the testimony concerning acts of sexual abuse against O.O. in Texas had a number of parallels and similarities to the acts of sexual abuse perpetrated against N.O. for which he was being tried. Consequently, O.O.'s testimony helped establish a common plan orscheme on the part of defendant. See State v. Goforth, 59 N.C. App. 504, 506, 297 S.E.2d 128, 129 (1982), rev'd and remanded for resentencing on other grounds, 307 N.C. 699, 307 S.E.2d 162 (1983) (evidence defendant began sexually abusing his two other stepdaughters as they reached puberty, and evidence of nonconsensual intercourse with his eldest stepdaughter regularly from the time she was twelve years old, was admissible to show defendant's common scheme to "engage in nonconsensual sexual relations with his stepdaughters as they matured physically, a pattern of conduct embracing the offense charged.").
We are wholly unpersuaded by defendant's argument that his trial counsel's failure to seek to preclude evidence of abuse against N.O. in O.O. occurring in Texas constituted ineffective assistance of counsel. "[C]ounsel's failure to object to evidence which is in fact admissible does not amount to deficient representation." State v. Frazier, 142 N.C. App. 361, 368, 542 S.E.2d 682 (2001) (citing State v. Lee, 348 N.C. 474, 492-93, 501 S.E.2d 334, 346 (1998)).
Moreover, defense counsel's failure to seek to preclude evidence concerning defendant's abuse of N.O. and O.O. in Texas was part of a trial strategy to discredit them.
The decisions on what witnesses to call, whether and how to conduct cross-examination, . . . what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. Trial counsel are necessarily given wide latitude in these matters. Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.
State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983) (internal quotation marks omitted).
Defense counsel repeatedly questioned both N.O. and O.O. concerning whether they told anyone of the alleged sexual abuse, specifically while they were living in Texas. Both denied telling anyone about the alleged abuse in Texas. While the Ocampo family was living in Texas, the girls' grandparents lived nearby. Defense counsel's strategy was to imply that, had the alleged acts in Texas occurred, the girls would have told their grandparents. Attempting to discredit a witness's testimony is a reasonable trial strategy. "Where the strategy of trial counsel is `well within the range of professionally reasonable judgments,' the action of counsel is not constitutionally ineffective." State v. Campbell, 142 N.C. App. 145, 541 S.E.2d 803 (2001) (quoting Strickland, 466 U.S. at 699, 80 L. Ed. 2d at 701). Defense counsel had wide latitude to determine the manner in which he presented evidence and conducted cross-examinations. We will not engage in "second-guessing on questions of strategy[.]" Milano, 297 N.C. at 495, 256 S.E.2d at 160. This assignment of error is overruled.
Defendant next argues that the trial court erred in allowing the State to introduce evidence of other sexual acts allegedly committed by defendant against his daughters O.O., P.O., and Q.O.in violation of Rule 404(b) of the North Carolina Rules of Evidence.
N.C.R. Evid. 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. . . .
The trial court allowed a voir dire examination of O.O. regarding her testimony that defendant sexually abused her, P.O., and Q.O.O.O. testified on voir dire that defendant began rubbing her breasts when she was ten years old. Defendant would rub her breasts under her clothes and unbutton her pants to rub her "private" below her stomach with his hand. Once, when her mother was at work, defendant pulled up O.O.'s skirt, tried to remove her underwear, and tried to pry her legs open. Defendant stopped when O.O. stated, "God would punish him for everything he was doing." O.O. believed defendant was attempting to have sexual intercourse with her. O.O. observed defendant rub the breasts of her sisters P.O. and Q.O. when they were approximately ten or eleven years of age. The trial court admitted O.O.'s testimony for the purpose of proving defendant's opportunity, intent, and plan to sexually abuse his daughters, including N.O.
Both this Court and our Supreme Court have held that the testimony of siblings concerning the perpetration of similar sex acts by their father against them is admissible to show a common scheme or plan of sexual abuse. See State v. DeLeonardo, 315 N.C. 762, 771, 340 S.E.2d 350, 357 (1986) (evidence relating to father's sexual activity with his three-year-old daughter admissible to establish common plan or scheme on the part of father to sexually abuse his children); State v. McCarty, 326 N.C. App. 782, 785, 392 S.E.2d 359, 361 (1990) (testimony of victim's half-sister of similar sexual abuse was properly admitted to show father's common scheme or plan to sexually abuse both stepdaughter and daughter); State v. Jacob, 113 N.C. App. 605, 608, 439 S.E.2d 812, 813 (1994) (evidence of sister's similar testimony regarding sexual abuse by father was properly admitted to show a common plan or scheme of sexual abuse). Here, the sexual acts defendant allegedly perpetrated against N.O. were similar in that he began rubbing the breasts of all four girls when they reached ten to twelve years of age; he rubbed the breasts of N.O. and O.O on the outside of and underneath their clothing; rubbed the breasts of P.O. and Q.O. on the outside of their clothing; and had sexual intercourse with N.O. and attempted to do the same with O.O. Much of defendant's abuse occurred when the girls' mother was at work and the children were left at home in his care.
The trial court did not err by admitting evidence of other sexual acts allegedly committed by defendant against O.O., P.O., and Q.O. This assignment of error is overruled.
Defendant's final argument is that the trial court erred by not declaring a mistrial ex mero motu after learning that witness P.O. spoke to a juror outside of the courtroom during the trial.
On the second day of jury deliberations, the bailiff informed the trial court that P.O. spoke with a juror a few days earlier. The trial court called the juror into the courtroom and questioned her on the record regarding what transpired between her and P.O.
According to the juror, P.O. entered the women's restroom as she was washing her hands and preparing to leave. P.O. asked her to tell her "what was going on" and inquired about whether the jury had decided "what they were gonna [sic] do with her father." The juror told P.O. that she "[could not] discuss this with her." P.O. began to weep. As the juror walked over to the door to leave the restroom, P.O. moved between her and the door and wept harder, begging the juror to tell her what the jury had decided. P.O. said she "couldn't go back to Texas until she found out." Again, the juror stated she could not discuss this with her. P.O. blocked the door "for a few more minutes," then moved aside at the juror's request and allowed her to exit. The following inquiry was conducted by the trial court on the record:
THE COURT: Have you discussed this with the other jurors?
[JUROR]: No.
THE COURT: They don't know about this?
[JUROR]: No.
THE COURT: Well, I guess the really important question is, do you think that this encounter with [P.O.] would affect your ability to be fair and impartial in this case at all?
[JUROR]: No.
THE COURT: She didn't discuss any facts about the case?
[JUROR]: No.
THE COURT: Just wanted you to tell her —
[JUROR]: Yes.
THE COURT: — what was happening?
[JUROR]: She basically just wanted to know what was going on before she — I guess she was going back home or whatever.
THE COURT: Do either of the attorneys want me to ask her any additional questions?
[DEFENSE COUNSEL]: I don't, if Your Honor please.
THE COURT: Ms. Edwards?
[PROSECUTOR]: No. No, Your Honor.
THE COURT: All right. Thank you, ma'am. You can go back. And I would appreciate if you'd not tell the other jurors about this.
[JUROR]: Oh, I won't.
(Juror exits the courtroom.)
THE COURT: Are both of the attorneys satisfied with the proceeding of jury deliberations?
[DEFENSE COUNSEL]: If Your Honor please, I am.
THE COURT: Ms. Edwards?
[PROSECUTOR]: (Nods head affirmatively.)
THE COURT: Is that a yes?
[PROSECUTOR]: Yes, ma'am. I'm sorry.
THE COURT: Go ahead and bring the jury in, please.
N.C.G.S. § 15A-1063(1) (2003) provides: "Upon . . . his own motion, a judge may declare a mistrial if: (1)[i]t is impossible for the trial to proceed in conformity with law[.]" "This statute allows a judge . . . to grant a mistrial where he could reasonably conclude that the trial will not be fair and impartial." State v. Lyons, 77 N.C. App. 565, 566, 335 S.E.2d 532, 533 (1985). "An order of a mistrial on a motion of the court is `addressed to the sound discretion of the trial judge, and his ruling on the motion will not be disturbed on appeal absent a gross abuse of that discretion.'" Id. at 566, 335 S.E.2d at 533-34 (quoting State v. Malone, 65 N.C. App. 782, 785, 310 S.E.2d 385, 387 (1984) (citations omitted)). "[C]ontact between a juror and an outside influence may be improper". State v. Roache, 358 N.C. 243, 275, 595 S.E.2d 381, 403 (2004) (citing State v. Willis, 332 N.C. 151, 172-73, 420 S.E.2d 158, 168 (1992), and State v. Barnes, 345 N.C. 184, 224-25, 481 S.E.2d 44, 66 (1997)).
In the event of some contact with a juror it is the duty of the trial judge to determine whether such contact resulted in substantial and irreparable prejudice to the defendant. It is within the discretion of the trial judge as to what inquiry to make.
Willis, 332 N.C. at 173, 420 S.E.2d at 168 (citations omitted). "The scope of the inquiry is within the trial judge's discretion." State v. Garner, 340 N.C. 573, 601, 459 S.E.2d 718, 733 (1995) (quoting State v. Harrington, 335 N.C. 105, 436 S.E.2d 235 (1993)). Determining the credibility of the juror during the inquiry is within the trial court's discretion as well. See Barnes, 345 N.C. at 225, 481 S.E.2d at 66 ("The trial court was in a position to observe and scrutinize the juror's credibility with respect to the juror's response to the question and was satisfied that the juror had not been tainted by the [outside] contact[.]")
In the instant case, the trial court immediately informed trial counsel when it discovered that a juror had contact with a witness. The trial court questioned the juror on the record regarding the outside contact she had with the witness and the potential impact, if any, such contact would have on her ability to continue to serve on the jury. The juror described the nature and extent of her contact with P.O. and stated that she had refused to speak to P.O. about the case. In addition, the juror assured the trial court she had not discussed the incident with other jurors and that the encounter would not affect her ability to be fair and impartial. The trial court asked the attorneys if they had any questions for the juror and, once the juror was excused from the courtroom, asked if they had any objection to the jury continuing its deliberations with the juror. Neither defense counsel nor the State had any questions for the juror and lodged no objections to the jury continuing its deliberations with the juror. Neither defense counsel nor the State moved for a mistrial pursuant to N.C.G.S. § 15A-1061 (2003). Under these circumstances, the trial court did not abuse its discretion in failing to declare a mistrial ex mero motu. This assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).