Opinion
No. COA02-637
Filed 3 June 2003 This case not for publication
Appeal by defendant from judgment entered 15 March 2001 by Judge Richard L. Doughton in Lincoln County Superior Court. Heard in the Court of Appeals 12 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.
Lincoln County Nos. 00 CRS 50204, 01 CRS 45.
Jose Freddy Guillen Vega ("defendant") appeals from his conviction and resulting sentence entered upon a jury verdict finding him guilty of taking indecent liberties with a child and statutory sexual offense. For the reasons stated herein, we find no error by the trial court.
At trial, the State presented evidence tending to show the following: The alleged victim in this case was fourteen years old in April of 2000 when she first met defendant during a family vacation. Defendant was fifty years old at the time. When the victim's family returned to their residence in Lincolnton, North Carolina, defendant continued his friendship with the family by bringing his children to the victim's house on the weekends to play with her younger siblings. During one of the visits, defendant talked to the victim about potential summer employment for her working with computers. On 8 June 2000, the victim agreed to accompany defendant to the promised job site. Instead of taking the victim to the job site, defendant took her to a motel in Lincolnton. When they arrived at the motel, defendant told the victim that "this was her job" and ordered her to put on lingerie that he had brought with him. The victim testified that she was frightened of defendant and complied with his demands. After the victim dressed herself in the lingerie, defendant ordered her to lie on the bed. He then proceeded to touch the victim's breasts and put his tongue inside her vagina. Defendant later photographed the victim wearing "very sexy clothes for pornographic pictures." Defendant and the victim left the motel approximately thirty minutes later. Defendant assured the victim that "this was a normal thing that happened" and that she need not be afraid. Defendant then took the victim, her siblings, and his children to dine at a restaurant.
The victim did not immediately inform her mother because "she probably would want to kill him." Several days later, defendant again approached the victim, telling her that she should "believe in him, to give him another opportunity" and that he would take her to "where [her] real job was" located. Defendant took the victim to a second motel located in Gastonia. Once inside the motel room, the victim went to the bathroom. When she came out, defendant was naked and holding a bottle of red liquid. Defendant told the victim he "would not allow [the victim] to hurt because of what he was going to do." Defendant then took the victim's hand and placed it on his penis. The victim stated that she was "very afraid" and ran back into the bathroom. When she reemerged, defendant was dressed and told her that "it had been a wasted day and a waste of money." Later that evening, the victim told her mother of defendant's actions.
Jose Antonio Alfaro ("Alfaro") and his cousin, Dennis Soto ("Soto") gave further testimony on behalf of the State. Alfaro stated that he was self-employed as a mechanic and a notary public, and that defendant came to his business and asked him to notarize some documents. While Alfaro notarized the documents, defendant pulled out a video camera and offered to show a videotape to Alfaro. The videotape depicted defendant performing oral sex upon the victim. Soto was also present and viewed the videotape. According to Soto, defendant boasted that the victim was "only fourteen," and that he had recorded the videotape by concealing the camera inside a briefcase.
Alberto Calvo ("Calvo") further testified on behalf of the State. Calvo stated that he was a sales manager at an automobile supply store at which defendant was a regular customer. Calvo testified that, while visiting the store, defendant showed him photographs depicting the victim wearing lingerie.
Lieutenant Kent Lukach ("Lieutenant Lukach") of the Lincolnton Police Department interviewed defendant on 13 July 2000. Defendant told Lieutenant Lukach that the victim wanted his assistance in leaving her home in order to pursue "an alternative lifestyle." According to defendant, he rented the motel room on 8 June on behalf of the victim so that she could "have her lesbian friends over." When Lieutenant Lukach questioned defendant regarding the victim's possible motive in making such accusations against defendant, defendant asserted that the victim's mother was angry at him for refusing to obtain a false driver's license for her.
Defendant presented evidence at trial tending to show the following: Amy Castellanos ("Castellanos"), a former employer of the victim, testified that when she applied for employment, the victim submitted various documents listing her age as eighteen. A second witness, Letitia Trejo, testified that she was acquainted with the victim, who told her that she was eighteen years old and married. Defendant's last witness was Marco Penetio Areas, who testified that the victim's passport from Costa Rica appeared to be invalid, because it lacked a fingerprint stamp. On rebuttal, the victim's mother testified that her daughter's passport did not have a fingerprint stamp because it was not required of minors.
At the close of the evidence, the jury found defendant guilty of statutory sexual offense and of taking indecent liberties with a child. The trial court sentenced defendant to a minimum term of imprisonment of 240 months and a maximum term of 297 months. From his conviction and resulting sentence, defendant appeals.
Defendant presents four assignments of error on appeal, arguing that the trial court erred in (1) its instructions to the jury; (2) admitting evidence concerning illegal immigration documents; and (3) admitting evidence of other sexual acts between defendant and the victim. Defendant further contends that (4) he was denied effective assistance of counsel. For the reasons that follow, we find no error in the judgment of the trial court.
By his first assignment of error, defendant argues that the trial court erred in its instructions to the jury. Defendant asserts that the instructions were fatally ambiguous in that they did not specify the date or location of the charged offense, but rather informed the jury that if they found defendant committed a statutory sexual offense or took indecent liberties with a child "on or about the alleged date," it would be the jury's duty to return a verdict of guilty as to these charges. Because the State presented some evidence of sexual acts between defendant and the victim other than the 8 June incident for which defendant was charged, defendant contends that the jury might have convicted defendant based on acts other than those occurring on 8 June as charged in the indictment. Defendant asserts that the ambiguity was such as to require a new trial.
Because defendant did not object to the jury instructions at trial, he must show that the trial court committed plain error in order to gain a new trial. See State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983). The test for plain error is whether, absent the omission, the jury probably would have returned a different verdict. See id. at 661, 300 S.E.2d at 378; State v. Joplin, 318 N.C. 126, 132, 347 S.E.2d 421, 425 (1986).
At the outset of the trial, the trial judge informed the jury that defendant was charged with two offenses, both of which allegedly occurred on 8 June 2000. The victim specified eight times during her testimony that the acts for which defendant was charged occurred on 8 June 2000. Specifically, the victim testified that on 8 June 2000, defendant took her to a motel in Lincolnton, where he photographed her wearing lingerie, touched her breasts, and put his tongue inside her vagina. The victim then testified to a second motel visit in Gastonia occurring "two or three days" later during which defendant was naked and forced her to place her hand on his penis. The victim never testified as to a specific date regarding the motel visit in Gastonia.
Assuming arguendo that the trial court's failure during the jury charge to specifically instruct the jury as to the date and location of the alleged offenses was error, it was not plain error. During defendant's trial, the jury was repeatedly informed that the alleged offenses with which defendant was charged occurred on 8 June 2000. The 8 June date was the only date mentioned by the victim. Given these facts, together with the strong evidence of defendant's guilt, there is no reasonable probability that, had the trial court specifically included the date and location of the charged offense in the jury instruction, a different result would have ensued. We therefore overrule this assignment of error.
Defendant next argues that the trial court erred in admitting evidence concerning immigration documents found in defendant's possession. Defendant contends this evidence had no probative value other than to show defendant's propensity for crime and as such, was improperly admitted by the trial court. This argument is without merit.
Although the State introduced some evidence tending to show that defendant was involved in preparing false immigration documents, defendant also introduced substantial evidence to that effect. At trial, Lieutenant Lukach testified regarding a search of defendant's residence. During the search, the police confiscated numerous "immigration documents that were partially filled out." Police also seized a briefcase containing U.S. passport documents, Mexican driver's licenses, and federal immigration documents. Defendant did not object to this evidence, and during cross-examination by defense counsel, elicited from Lieutenant Lukach that defendant had three passports on his person at the time of his arrest. Defense counsel also elicited testimony by the victim that defendant had prepared documents for her for purposes of a job application. Defendant's own witness, Castellanos, testified extensively regarding these false documents prepared by defendant, which listed the victim's age as eighteen. Defendant cannot now complain about evidence elicited by him and admitted without objection. See State v. Rivers, 324 N.C. 573, 575-76, 380 S.E.2d 359, 360 (1989). We therefore overrule this assignment of error.
By his third assignment of error, defendant contends that the trial court erred in admitting evidence concerning the second motel visit in Gastonia during which defendant disrobed and forced the victim to touch his penis. Although defendant did not object to the evidence, he nevertheless asserts plain error by the trial court in admitting it. Defendant's argument is without merit.
Rule 404(b) of the North Carolina Rules of Evidence provides in pertinent part that:
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.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). Evidence that the defendant committed similar acts that are not too remote in time may be admitted to show that these acts and those for which the defendant is being tried all arose out of a common scheme or plan on the part of the defendant. State v. Rosier, 322 N.C. 826, 828, 370 S.E.2d 359, 360-61 (1988); State v. DeLeonardo, 315 N.C. 762, 770-71, 340 S.E.2d 350, 356-57 (1986). In Rosier, the defendant was charged with first-degree sexual offense. Over the defendant's objections, the trial court admitted evidence of similar sexual acts by the defendant with two other children. Upon appeal, our Supreme Court held that, because the other incidents were similar and occurred within three months of the incident for which the defendant was tried, such evidence was properly admitted to show a common scheme or plan by the defendant. See Rosier, 322 N.C. at 828, 370 S.E.2d at 361.
In the instant case, the evidence tended to show that defendant took the victim to a second motel two or three days after the incident for which defendant was charged occurred. Before each incident, defendant lured the victim into accompanying him with promises of legitimate employment. Once at the motel, defendant committed overtly sexual acts with the victim. As such, there was sufficient similarity and proximity in time between the two separate incidents to admit evidence of the second motel visit, and the trial court did not err in admitting this evidence. This assignment of error is overruled.
By his final assignment of error, defendant contends that he was denied effective assistance of counsel in violation of the Sixth Amendment. In order to substantiate a claim for ineffective assistance of counsel, a defendant must demonstrate that: (1) his counsel's performance was deficient such that his counsel was basically not functioning as legal "counsel" at all; and (2) he was prejudiced by his counsel's ineffectiveness in such a way that he was deprived of a fair trial. See State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). A stringent standard of proof is required to substantiate ineffective assistance claims. See State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871 (1974).
After a careful review of the transcript, we conclude that defendant has failed to demonstrate that his counsel's performance was deficient, or that he was prejudiced by any ineffectiveness on the part of counsel's performance. Defense counsel vigorously cross-examined the State's witnesses and presented several witnesses who testified that the victim had lied about her age. Defense counsel did not object to the introduction of evidence concerning illegal immigration documents, but clearly adopted the evidence as part of the defense, asserting that the victim's mother was angry with defendant because he refused to produce a false driver's license for her. Because strategic and tactical decisions are the exclusive province of the lawyer, trial counsel are granted wide latitude in matters of defense strategy. See State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979), overruled in part on other grounds, State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). Finally, we note that the State's case against defendant was strong. Defense counsel attempted to refute not only the victim's testimony, but the testimony of three other witnesses who testified that defendant bragged about the incident with the victim and showed them photographs and videotapes he made of her. We conclude that defendant received an able defense, and we overrule this assignment of error.
In conclusion, we hold that defendant received a trial free from prejudicial error.
No error.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).