IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-261
Filed 3 December 2024
Rowan County, Nos. 19CRS50541-44
STATE OF NORTH CAROLINA
v.
DAVID NEIL BROWN
Appeal by defendant from judgment entered 10 April 2023 by Judge Patrick
Thomas Nadolski in Rowan County Superior Court. Heard in the Court of Appeals
23 October 2024.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sondra C. Panico, for the State.
Appellate Defender Glenn Gerding by Assistant Appellate Defender, John F. Carella, for the defendant-appellant.
TYSON, Judge.
David Neil Brown (“Defendant”), a fifty-one-year-old man, and Helen, a fifteen-
year-old girl, engaged in a sexual relationship spanning several months. See N.C. R.
App. P. 42(b) (pseudonyms used to protect the identity of minors). Defendant appeals
from judgment entered upon the jury’s verdicts of guilty for one count of statutory
rape of a child fifteen years old or younger, two counts of statutory sex offense with a
child fifteen years old or younger, and three counts of indecent liberties with a child.
Our review discerns no error in the jury’s verdicts or in the judgments entered STATE V. BROWN
Opinion of the Court
thereon.
I. Background
Helen and her family attended the same church as Defendant and his family.
At some point, Helen’s family stopped attending church services. When Helen was
thirteen or fourteen years old, Helen befriended Defendant’s daughter and started
riding to church with Defendant’s family. In March 2017, Helen started staying over
with Defendant’s daughter, his wife, and Defendant on Saturday nights at
Defendant’s house and riding with his family to church on Sunday mornings.
Helen testified she developed a “crush” on Defendant. By the fall of 2017,
Helen, Defendant, and Defendant’s daughter participated in the church’s praise
band, which practiced on Tuesday nights. On some Tuesday nights, Defendant would
drive Helen back to her home by himself.
During one of those car rides in the fall of 2017, Defendant said he noticed the
way Helen had looked at him and asked Helen if she had a crush on him. Defendant
also told her to keep her “britches on” and to not have sex because she was “so young.”
Helen lied and told him she had already had sex because she “did have a crush on
him and [she] wanted him to think [she] had had experience.” During another one of
those car rides in the fall of 2017, Defendant kissed her in his truck when they were
parked in front of Helen’s house.
A few days before Helen’s fifteenth birthday, she attended a wedding along
with Defendant and his family. Helen spent that night at Defendant’s house. Helen
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testified Defendant turned her around and started to touch her body over her clothes
while they poked each other and played around. Defendant’s wife was in the shower,
and his daughter, Helen’s friend, was asleep. The next morning, Defendant again
turned her around and touched her over her clothes, placed her hand over his penis
on the outside of his clothes, and said he would “rock her world.”
After the wedding weekend, Helen testified “it was almost every Saturday that
something had happened between me and him whether it was us making out or him
– it eventually progressed to where he was fingering me” and that was “really all that
we did” for a while. She testified and reaffirmed the first time Defendant had
digitally penetrated her was after the wedding in October 2017, when she was fifteen
years old. Although Helen could not remember the specific occasion, Helen testified
she performed fellatio on Defendant in November 2017.
In the months preceding April 2018, Helen and Defendant had discussed
having sexual intercourse. On 1 April 2018, Easter Sunday, Helen went to church
with Defendant’s family and then went home with them for dinner. Helen asked to
stay the night at Defendant’s house because she did not have school the next day.
Defendant and Helen were the only ones awake in Defendant’s home that
evening. Helen testified she had a conversation with Defendant, during which she
expressed her fear of becoming pregnant if they had sexual intercourse. Defendant
told her he previously had a vasectomy and was “shooting blanks.” She did not testify
Defendant showed her a picture or gave her any evidence of the vasectomy. Helen
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later researched what a vasectomy entails.
Helen testified she had sexual intercourse with Defendant that night in the
bathroom, and clarified he had inserted his penis into her vagina. According to Helen,
they also had sexual intercourse the next day while Defendant’s wife and daughter
were not at the house. In total, Helen claimed she and Defendant had sexual
intercourse probably five more times in various locations in the house, but she could
not remember specific details of those encounters. Helen also testified Defendant
performed oral sex on her one time in the bathroom, but she thought this was after
they had sexual intercourse in April 2018.
Helen and Defendant’s relationship ended on 23 December 2018, which was
the last time they engaged in any sexual activity. Helen testified she was angry with
Defendant “because he wouldn’t do anything with me one day.”
Helen confided in her friend, Mallory, about her relationship with Defendant.
Helen told Mallory she was angry after Helen had found out Defendant had sexual
intercourse with his wife. Helen asked Mallory to pretend to be Defendant’s wife,
and Helen sent Mallory messages to “try to scare him and think that I’m telling [his
wife] what he’s been doing with me.” Mallory “got in trouble, got her phone taken,
and her mom found those messages and told [Helen’s] mom.”
Law enforcement was notified of Helen’s and Defendant’s relationship and
began to investigate. Helen later sat for a recorded interview at the Terrie Hess Child
Advocacy Center (“Terrie Hess”) with forensic interviewer Beth McKeithan
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(“McKeithan”).
Defendant was indicted for three counts of indecent liberties with a child, two
counts of statutory sex offense with a child fifteen years old or younger, and seven
counts of statutory rape of a child fifteen years old or younger.
A. Trial
The State forecasted the evidence they intended to present at trial during
opening statements, which included the video recording taken at Terrie Hess
“recounting everything that had transpired between her and [Defendant].”
McKeithan testified for the State and recalled interviewing Helen in February 2019.
McKeithan testified Helen was referred to Terrie Hess because there was an “active
investigation.” McKeithan conducted the interview in a small room with “a closed-
circuit TV into another small room where law enforcement and Department of Social
Services can come and watch while the child[ ] [is] being interviewed.”
When the State first attempted to introduce State’s Exhibit 2, a DVD of the
interview, defense counsel objected based on lack of foundation and to the
admissibility of the recording as substantive evidence. The trial court allowed the
State to examine McKeithan further, who testified a physical medical examination
was conducted after the forensic interview.
McKeithan testified interviews came first “so that any concerns that come up
during the interview can be addressed in the medical [exam] afterwards.” The State
attempted to again introduce the interview as substantive evidence, and defense
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counsel again objected and requested to voir dire the witness.
The trial court allowed defense counsel to voir dire McKeithan. Defense
counsel renewed and continued to object based on lack of foundation and to its
admissibility as substantive evidence. The prosecutor argued the video was
admissible under the “statements to medical personnel for medical treatment”
exception to hearsay.
In response to questioning from the trial court, McKeithan explained she did
not personally explain to Helen the entire process at Terrie Hess, which included a
forensic interview and medical examination, because that’s “already been covered”
prior to the interview. McKeithan testified Terrie Hess’s protocol provides the family
advocate must inform the child a medical exam follows the forensic interview, and
law enforcement should inform the child the contents of the forensic interview and
medical exam may be used as evidence in a criminal case. McKeithan said the law
enforcement officer who referred the case to Terrie Hess was provided a copy of the
DVD of the interview.
The trial court ruled the interview could “come in under the hearsay exception
of 803(4)” and its admission was not outweighed by the risk of unfair prejudice.
Defense counsel again objected and excepted to the ruling. The interview DVD was
admitted into evidence and played in full for the jury.
The video lasted for over an hour. Forty minutes into the interview,
McKeithan left the room for over thirteen minutes before returning to answer further
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questions. Detective Ryan Barkley, the State’s lead investigator, was present for the
interview and had watched from another room. During the thirteen minutes
McKeithan had stepped outside of the interview room, he had asked McKeithan to
clarify several details about Helen’s relationship with Defendant.
Detective Barkley testified regarding his search of Defendant’s house pursuant
to a warrant, his arrest of Defendant, and his search of Defendant’s cell phone.
Barkley said the cell phone was searched by a forensic analyzer, who used an
electronic program to retrieve all the data on Defendant’s phone. The program
prepares a report Barkley later reviewed.
Barkley testified he saw an image of “a home vasectomy test” while searching
through the results of the report. The State introduced the photograph as State’s
Exhibit 3 without objection. The photograph was admitted solely for illustrative
purposes. On cross-examination, Barkley admitted he had no idea when the
photograph was made or how it was stored on the device. The State did not introduce
text messages or any other information obtained from Defendant’s phone explaining
why he may have taken an image of the at-home vasectomy test.
During the State’s closing argument, the prosecutor said the following
regarding State’s Exhibit 3, the photograph of the vasectomy test:
This is also really important. The state introduced a photo of a vasectomy test strip, right, from the defendant’s phone. So let’s talk about a couple of things. One, why would a 15- year-old know that her best friend’s father has had a vasectomy? How does that just come up? Two, if the
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defendant has had a vasectomy, why is there a test strip on his phone? He’s married. Presumably his wife knows he’s had a vasectomy. Why is there a photo of a test strip? And the photo of the te[s]t strip is on the phone, again, there’s no date stamp, I recognize that, but it’s on the phone during the time that Detective Barkley is doing his investigation. He gave you a narrow window of when this was reported, when his investigation started, and when they did the dump on the defendant’s cell phone.
Why would that test strip be there if your wife knows you’ve had a vasectomy? What does your common sense and everyday reasoning tell you? Does it tell you that, if someone’s having sex with someone else who’s not comfortable with being ejaculate[ed] inside of, does it tell you that that person would take a photo to alleviate those concerns? Or would you just have the photo of the test strip just to have it? What does your everyday common sense and reasoning tell you? That is very important. And, again, she is 15 years old and knows her best friend’s father has had a vasectomy. How does that happen? These are facts that you put together and you use your everyday common sense and reasoning to arrive at your conclusion.
Defendant failed to object during the State’s closing argument. Defendant
argued during his closing argument no date was shown on the photograph, the photo
had nothing to do with the case, and “the [S]tate would have you supply a reason that
fits its side of the story.”
B. Verdict and Sentencing
The jury convicted Defendant of all three counts of indecent liberties with a
child, both statutory sex offenses, but only one count of statutory rape of a child fifteen
years old or younger. Defendant was sentenced to an active term of 192 to 291
months’ imprisonment for one of his statutory sex offense with a child fifteen years
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old or younger convictions and one indecent liberties with a child convictions. He was
sentenced to a second, consecutive sentence for 192 to 291 months’ imprisonment for
his second statutory sex offense with a child fifteen years old or younger conviction.
Lastly, he was sentenced for 192 to 291 months’ imprisonment for his statutory rape
of a child fifteen years older or younger conviction. Judgment was arrested for his
two remaining indecent liberties with a child convictions. Defendant entered timely
notice of appeal.
II. Jurisdiction
This Court possesses jurisdiction to review a final judgment entered in a
criminal case pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2023).
III. Issues
Defendant argues the trial court erred by admitting State’s Exhibit 2, an hour-
long video interview of the alleged victim coordinated with law enforcement, as
substantive evidence over Defendant’s hearsay objections. Defendant additionally
argues he received ineffective assistance of counsel when his attorney failed to object
to either the admission of State’s Exhibit 3, an undated photograph of a test strip
allegedly taken from Defendant’s phone, or the State’s alleged improper closing
argument asking the jury to consider the photograph as substantive evidence.
IV. Hearsay
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Defendant argues the trial court erred by admitting State’s Exhibit 2, an hour-
long video interview of the alleged victim coordinated with law enforcement, as
substantive evidence over Defendant’s hearsay objections.
A. Standard of Review
“When preserved by an objection, a trial court’s decision with regard to the
admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson,
209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011) (citation omitted).
B. Analysis
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2023). “Hearsay is not admissible,
except as provided by statute[.]” N.C. Gen. Stat. § 8C-1, Rule 802 (2023).
One such exception pertains to “statements for purposes of medical diagnosis
or treatment.” N.C. Gen. Stat. § 8C-1, Rule 803(4) (2023). This exception applies to
“[s]tatements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.” Id.
“Rule 803(4) requires a two-part inquiry: (1) whether the declarant’s
statements were made for purposes of medical diagnosis or treatment; and (2)
whether the declarant’s statements were reasonably pertinent to diagnosis or
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treatment.” State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000) (citations
omitted). “Testimony meeting this test ‘is considered inherently reliable because of
the declarant’s motivation to tell the truth in order to receive proper treatment.’”
State v. Burgess, 181 N.C.App. 27, 35, 639 S.E.2d 68, 74 (2007) (quoting Hinnant, 351
N.C. 277, 286, 523 S.E.2d 663, 669). “In ascertaining the intent of the declarant, ‘all
objective circumstances of record surrounding declarant’s statements’ should be
considered.” State v. Thornton, 158 N.C. App. 645, 650, 582 S.E.2d 308, 311 (2003)
(quoting Hinnant, 351 N.C. 277, 288, 523 S.E.2d 663, 670).
1. State v. McLaughlin
In State v. McLaughlin this Court held statements made by a child victim
during a videotaped interview to a nurse at a child advocacy center were admissible
hearsay under the medical diagnosis and treatment exception. The “interview
reflected the primary purpose of attending to the victim’s physical and mental health
and his safety[.]” State v. McLaughlin, 246 N.C. App. 306, 321 786 S.E.2d 269, 281
(2016).
This Court reasoned the nurse had “explained to [the victim] that he was there
for a checkup[,]” and “she asked [the victim] if he had any health issues[.]” Id. The
nurse “emphasized to [the victim] the importance of knowing what had happened
from beginning to end so they could make sure he did not have any diseases or other
issues that could affect him for the rest of his life.” Id. This Court further stated,
“having the victim relate the details from beginning to end helped the medical
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practitioners [ ] evaluate the extent of the mental and physical trauma to which the
victim was exposed, inquire as to whether the victim was out of danger, and discover
whether other abusers or victims may have been involved.” Id.
2. State v. Thornton
Similarly, in State v. Thornton, this Court held a child’s statements to a social
worker before a medical evaluation were admissible hearsay under the medical
diagnosis and treatment exception because the child had “made her statements to
[the social worker] with the understanding that they would lead to medical diagnosis
or treatment and that the statements were reasonably pertinent to diagnosis or
treatment.” State v. Thornton, 158 N.C. App. 645, 651, 582 S.E.2d 308, 311 (2003).
This Court noted the interview with the social worker and the medical
evaluation occurred on the same day. Id. at 650-51, 582 S.E.2d at 311. The social
worker had “asked [the child] very general questions about her home life, and ‘very
general and nonleading’ questions about any touching that may have occurred.” Id.
The social worker testified the child knew she was in a doctor’s office and was aware
the social worker interviewing her worked with the doctor. Id. The child also was
told she needed to be truthful. Id.
3. State v. Coffey
Likewise, in State v. Coffey, this Court held a child sexual assault victim’s
videotaped interview with a forensic interviewer was admissible hearsay under the
medical diagnosis and treatment exception because the sexual assault victim’s
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“statements were made for the purposes of medical diagnosis or treatment, and the
statements were reasonably pertinent to diagnosis or treatment.” State v. Coffey, 275
N.C. App. 199, 205, 853 S.E.2d 469, 475 (2020).
In Coffey, the “forensic interviewer testified about the standard procedure at
SafeChild, which include[d] conducting a forensic interview and a medical exam for
a child-victim’s diagnosis.” Id. at 204, 853 S.E.2d at 475. In addition, “prior to an
interview with a child-victim, the child-victim is given a tour, so the child knows ‘[it]
is really important for their health, that we are going to talk about today, we need to
kind of know what happened, make sure we are telling the truth, and you are going
to see the doctor today for anything that you are worried about with your body.’” Id.
at 205, 853 S.E.2d at 475. Given the forensic interviewer’s testimony, this Court held
the videotaped interview was properly admitted under Rule 803(4). Id.
4. State v. Hinnant
In contrast, the Supreme Court of North Carolina held in State v. Hinnant that
a child-victim’s statements to a psychologist during an interview were not admissible
hearsay under the medical diagnosis and treatment exception because the statements
“were not reasonably pertinent to medical diagnosis or treatment.” Hinnant, 351
N.C. at 290, 523 S.E.2d at 671.
In Hinnant, the interview was held “approximately two weeks after [the child-
victim] had received her initial medical examination.” Id. The Court did not find
evidence in the record the child-victim was informed of “the medical purpose of the
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interview or the importance of truthful answers.” Id. at 289-90, 523 S.E.2d at 671.
The Court explained the child-victim could not have understood the interview was for
medical purposes because the room the interview was held in was “a ‘child-friendly’
room” instead of a medical environment. Id. at 290, 523 S.E.2d at 671.
5. State v. Waddell
Following Hinnant, the Court also held a child sexual abuse victim’s
statements to a clinical psychologist were not admissible hearsay under the medical
diagnosis and treatment exception because “[t]he interview took place after the initial
medical examination, in a “child-friendly” room, in a nonmedical environment, and
with a series of leading questions.” State v. Waddell, 351 N.C. 413, 418, 527 S.E.2d
644, 648 (2000). The Court noted “the record also lacks any evidence that there was
a medical treatment motivation on the part of the child declarant or that [the clinical
psychologist] or anyone else explained to the child the medical purpose of the
interview or the importance of truthful answers.” Id.
6. State v. Watts
Likewise, in State v. Watts, this Court held testimony from a child’s statements
to an emergency room nurse and two doctors were not admissible hearsay under the
medical diagnosis and treatment exception because no evidence showed the child
“understood she was making the statements to any of the three for medical purposes,
or that the medical purpose of the examination and importance of truthful answers
were adequately explained to her.” State v. Watts, 141 N.C. App. 104, 108, 539 S.E.2d
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37, 40 (2000). The Court reasoned, based on the emergency room nurse’s testimony,
the child did not understand why she was at the hospital or what was happening
when she made statements to the emergency room nurse. See id. The Court also
pointed out the doctors examined the child “three months after her initial medical
examination . . . .” Id.
Here, Helen was aware she would be having a physical medical examination
after the interview and made her statements for the purposes of medical diagnosis or
treatment. Forensic interviewer McKeithan asked Helen if she was “worried or
concerned about anything, [or] scared of anybody?” In response Helen stated, “One
thing I’m scared about is like my dad. My dad doesn’t know it yet. . . . I’m on his
insurance . . . He will get a letter that I’ve been here.” This evidence indicating Helen
was worried about the visit being billed to her father’s health insurance tends to show
Helen was aware she was undergoing a medical examination after the interview.
Helen’s forensic interview occurred immediately before her medical
examination on the same day. McKeithan asked Helen “‘very general and nonleading’
questions” about her relationship with Defendant. Thornton, 158 N.C. App. 645, 650-
51, 582 S.E.2d 308, 311. McKeithan testified Terri Hess’s protocol requires the family
advocate to explain the forensic interview is followed by a medical examination and
for law enforcement to inform the victim that any information collected during the
forensic interview or medical examination may be used as evidence in a criminal case.
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McKeithan also testified, when she spoke with Helen, Helen was aware a medical
exam would follow her interview.
Helen’s statements were reasonably pertinent to her diagnosis and treatment.
McKeithan pointed out the camera to Helen and explained, “I can go back and watch
all the things we talked about because I talk with a lot of kids. I want to keep
everything straight.” McKeithan told Helen, “I . . . need . . . as much detail as you
can give me, ‘cause the whole point of this is so you don’t have to keep talking about
it over and over.”
McKeithan explained to Helen the importance of telling the truth and asked
Helen, “is there anything with your body that you’re concerned about or anything?”
McKeithan also asked Helen if “anything else like this ever happened with anybody
else besides [Defendant]?”, if she and Defendant had similar relationships with other
people, if Defendant ever hurt her body, or if Defendant ever asked for pictures of her
body.
All of McKeithan’s statements and questions “reflected the primary purpose of
attending to [Helen]’s physical and mental health and [her] safety.” McLaughlin, 246
N.C. App. at 321, 786 S.E.2d at 281. Similarly, “having [Helen] relate the details
from beginning to end helped [McKeithan] to evaluate the extent of the mental and
physical trauma to which [Helen] was exposed, inquire as to whether [Helen] was out
of danger, and discover whether other abusers or victims may have been involved.”
Id.
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The trial court did not err by admitting the recording under the statements for
purposes of medical diagnosis or treatment exception to hearsay. Id. Defendant’s
argument is without merit.
V. Ineffective Assistance of Counsel
Defendant argues he was provided ineffective assistance of counsel when his
attorney failed to object to: (1) the admission of State’s Exhibit 3, an undated
photograph of a test strip allegedly taken from Defendant’s phone; and (2) the State’s
alleged improper closing argument asking the jury to consider the photograph as
substantive evidence.
To demonstrate ineffective assistance of counsel, a defendant must show
counsel’s performance was deficient and Defendant was prejudiced. See State v.
Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted). A deficient
performance falls below an objective standard of reasonableness and is so serious it
effectively denies the defendant his due process rights. Id. “[J]udicial review of
counsel’s performance must be highly deferential.” State v. Gainey, 355 N.C. 73, 113,
558 S.E.2d 463, 488 (2002) (citation omitted).
Counsel’s performance prejudices a defendant only when, “looking at the
totality of the evidence, there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” State
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v. Phillips, 365 N.C. 103, 122, 711 S.E.2d 122, 138 (2011) (citation and quotation
omitted).
There is “a strong presumption that counsel’s conduct falls within the broad
range of what is reasonable assistance.” State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d
334, 346 (1986) (citation omitted). “[W]hen this Court is able to determine that
defendant has not been prejudiced by any alleged ineffectiveness of counsel, we need
not consider whether counsel’s performance was deficient.” State v. Augustine, 359
N.C. 709, 719, 616 S.E.2d 515, 524 (2005) (citations omitted).
1. Admission of Photograph
Defendant argues that his counsel failed to object to the admission of a
photograph of a home vasectomy test, and as a result, he was provided ineffective
assistance of counsel. A defendant is not prejudiced by their counsel’s failure to raise
a claim that would have been unsuccessful. State v. Waring, 364 N.C. 443, 513-14,
701 S.E.2d 615, 659 (2010); State v. Banks, 367 N.C. 652, 653, 766 S.E.2d 334, 336
(2014).
Here, Defendant’s objection to the admission the photograph of a home
vasectomy test would have been unsuccessful. Our General Statutes provide:
Any party may introduce a photograph: video tape, motion picture, X-ray or other photographic representation as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. This section does not prohibit a party from introducing a photograph or other pictorial representation solely for the purpose of illustrating the testimony of a witness.
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N.C. Gen. Stat. § 8-97 (2023).
Rule 403 of the Rules of Evidence provides: “Although relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” N.C.
Gen. Stat. § 8C-1, Rule 403 (2023).
“The decision whether to exclude evidence under Rule 403 of the Rules of
Evidence is within the discretion of the trial court and will not be overturned absent
an abuse of discretion.” State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005)
(citations omitted). “[T]he trial court’s ruling should not be overturned on appeal
unless the ruling was manifestly unsupported by reason or [was] so arbitrary that it
could not have been the result of a reasoned decision.” State v. Hyde, 352 N.C. 37, 55,
530 S.E.2d 281, 293 (2000) (citation and quotation marks omitted).
The trial court properly acted within its discretion in admitting the
photograph. The photograph was admitted for illustrative purposes only and was
corroborative of Helen’s testimony that Defendant had a vasectomy. The trial court’s
decision was not so arbitrary that it could not have been supported by reason.
Additionally, defense counsel extensively cross-examined Detective Barkley
about the photograph, highlighting the absence of a date on the photograph and the
State’s reliance on one photograph out of many on Defendant’s phone. There is no
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reasonable probability in the absence of the defense counsel’s alleged error, the result
of the proceeding would have been different.
2. Closing Statement
Defense counsel’s failure to object to the State’s closing argument did not
deprive defendant of effective assistance of counsel. To succeed on an ineffective
assistance of counsel argument, the defendant must demonstrate counsel’s failure to
object was both deficient and “infected the trial with unfairness and thus rendered
the conviction fundamentally unfair.” State v. Augustine, 359 N.C. 709, 727, 616
S.E.2d 515, 529 (2005) (quoting State v. Carroll, 356 N.C. 526, 537, 573 S.E.2d 899,
907 (2002)).
The argument presented by the State surrounded Helen’s knowledge of
Defendant’s prior vasectomy. The State argued a fifteen-year-old’s knowledge of her
best friend’s dad’s vasectomy supports the inference the two were involved in a sexual
relationship. The State may, during its closing argument, “create a scenario of the
crime committed as long [as] the record contains sufficient evidence from which the
scenario is reasonably inferable.” State v. Frye, 341 N.C. 470, 498, 461 S.E.2d 664,
678 (1995).
Both the photograph of the vasectomy test strip found on Defendant’s phone
and Helen’s testimony of her knowledge of the vasectomy were admitted into evidence
at the time of the State’s closing argument. An adequate evidentiary basis supported
the State’s argument.
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Even excluding the vasectomy test strip, Helen’s testimony was properly
admitted and supported the State’s argument. This supplemental source of evidence
indicating Helen was aware of Defendant’s purported vasectomy tends to show it was
unlikely an objection to the State’s arguments would have materially influenced the
verdict or prejudiced Defendant. Defendant has failed to show his counsel’s
performance was deficient or prejudicial. Defendant was not deprived of his right to
effective assistance of counsel. See id.
VI. Conclusion
The trial court did not err by admitting the Terrie Hess Center’s video
interview of Helen under the “statements for purposes of medical diagnosis or
treatment” exception to hearsay. Defendant was not prejudiced by any purported
ineffective assistance of counsel.
Defendant received a fair trial, free from prejudicial errors he preserved and
argued on appeal. We discern no error in the jury’s verdicts or in the judgments
entered thereon. It is so ordered.
NO ERROR.
Chief Judge DILLON and Judge HAMPSON concur.
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