Opinion
No. COA12–819.
2013-02-5
STATE of North Carolina v. David Michael WILSON, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Sherri G. Horner, for the State. John Keating Wiles for defendant.
Appeal by defendant from judgment entered 15 December 2011 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 8 January 2013. Attorney General Roy Cooper, by Assistant Attorney General Sherri G. Horner, for the State. John Keating Wiles for defendant.
ELMORE, Judge.
On 15 December 2011, a jury found David Michael Wilson (defendant) guilty of first-degree sex offense with a child, of taking indecent liberties with a child, and of attaining habitual felon status. Defendant was sentenced to between 483 to 589 months imprisonment; he now appeals. After careful consideration, we find no error.
I. Background
On 12 December 2011, a criminal trial against defendant was commenced before a Buncombe County Superior Court jury. Defendant was charged with two counts of taking indecent liberties with a child, one count of first-degree sex offense with a child, and habitual felon status. At the time of trial, the victim was a nine-year-old female.
At trial the State presented the following evidence: On 14 May 2012, the victim went to defendant's home to watch the age-appropriate movie “Bring it On.” During the movie, defendant requested that the victim sit on his lap. When she did, he “kept touching [her] bottom,” and “[h]e went up [her] pants and down [her] underwear” with his finger. When the victim made an excuse to leave, defendant said, “Don't tell anybody.” The victim reported the incident to her mother who then alerted the authorities.
Offered in corroboration, the victim's mother, the social worker, Christine Nicholson, Deputy Philip Conner, and Detective Ann Levi testified that the victim had informed him/her that defendant put his finger in her vagina. Additionally, Christine Nicholson, Deputy Conner, and Detective Levi testified that the victim said she had seen the covers of “nasty movies” inside defendant's home. Deputy Connor further testified that he visited defendant and defendant showed him a drawer containing the video “Bring it On” mixed with several pornographic videos.
Prior to resting, the State voluntarily dismissed one count of taking indecent liberties with a child in file number 11 CRS 407. The State recognized that it erroneously indicted defendant based on a mistaken belief that defendant had shown the victim a pornographic video.
II. Admission of Testimony
Defendant argues that the trial court erred by failing to strike from the jury's consideration the testimony regarding the pornography. We disagree.
As defendant did not make a motion to strike at trial or otherwise object to the admission of the testimony, we will review this issue for plain error. “[P]lain error review is available in criminal appeals, for challenges to jury instructions and evidentiary issues, ... [but] only in truly exceptional cases when absent the error the jury probably would have reached a different verdict.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (citations and quotation marks omitted).
Defendant specifically argues that the trial court erred by failing to strike the testimony regarding the pornography after the State dismissed the charge that supported the admission of said evidence; he does not assert that it was erroneously entered into evidence. Defendant also contends that the State “took advantage of the then irrelevant, but surely prejudicial, testimony about pornography” by reiterating it during closing arguments. Defendant goes on to suggest that “the court should have stricken that evidence from the record on its own motion and instructed the jury to disregard it.” In making this argument, defendant does not cite any case law where our courts have concluded that, absent a motion to strike, it is error for the trial court to fail to strike properly admitted testimony. Moreover, defendant failed to cite authority evidencing the State's alleged error during closing. An appellant's argument “shall contain citations of the authorities upon which the appellant relies.” N.C.R.App. P. 28(b)(6). As defendant has not provided any authority speaking directly to the crux of his argument, we deem this issue abandoned on appeal.
However, assuming arguendo that defendant contended that the testimony was inadmissible when admitted, we maintain that the trial court did not err.
“The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a logical tendency to prove any fact that is of consequence in the case being litigated.” State v. Griffin, 136 N.C.App. 531, 550, 525 S.E.2d 793, 806 (citation and quotation marks omitted), appeal dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000). “Decisions made under Rule 104(a) are addressed to the sound discretion of the trial court.” State v. Shuford, 337 N.C. 641, 649, 447 S.E.2d 742, 747 (1994). Rule 404(b) is a “general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990).
Here, the record reflects that the admission of the testimony alleging that defendant owned pornography was relevant for the purpose of establishing the foundation for the dismissed count of indecent liberties. Said evidence was not offered for the purpose of negatively illustrating defendant's character. As such, the testimony was admissible under both Rule 104(a) and Rule 404(b). Accordingly, we conclude that the trial court did not err in admitting the testimony.
II. Assistance of Counsel
Defendant next argues that he was denied effective assistance of counsel. We disagree.
We review de novo whether a defendant was denied effective assistance of counsel. See State v. Martin, 64 N.C.App. 180, 181, 306 S.E.2d 851, 852 (1983). “To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006).
Defendant's ineffective assistance claim rests on counsel's alleged failure to object to the admission of the testimony regarding defendant's possession of pornography. However, as we concluded above that the trial court did not err in admitting said testimony, we deem defendant's argument to be without merit.
VI. Conclusion
In sum, the contested testimony was properly admitted and the trial court did not err by failing to strike it once the State dismissed one count of taking indecent liberties with a child. Moreover, defendant's ineffective assistance of counsel argument is without merit. Accordingly, we conclude that the trial court did not err.
No error. Judges McGEE and HUNTER, ROBERT C. concur.
Report per Rule 30(e).