State v. Jackson

748 S.E.2d 50, 229 N.C. App. 644, 2013 WL 5183980, 2013 N.C. App. LEXIS 962
CourtCourt of Appeals of North Carolina
DecidedSeptember 17, 2013
DocketNo. COA12-1533
StatusPublished
Cited by10 cases

This text of 748 S.E.2d 50 (State v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jackson, 748 S.E.2d 50, 229 N.C. App. 644, 2013 WL 5183980, 2013 N.C. App. LEXIS 962 (N.C. Ct. App. 2013).

Opinion

McCullough, Judge.

Damian D. Jackson (“defendant”) appeals from his convictions for simple assault, sexual battery, larceny from the person, and second-degree sexual offense. For the following reasons, we find no error.

1. BACKGROUND

Defendant was indicted by a Mecklenburg County Grand Jury on 24 August 2009 for one count each of simple assault, sexual battery, larceny from the person, and second-degree sexual offense. Defendant’s case came on for jury trial on 25 July 2012, during the Criminal Session of [646]*646Mecklenburg County Superior Court, the Honorable F. Lane Williamson presiding. The State’s evidence at trial tended to show the following.

At approximately 10:40 p.m. on 30 July 2009, the victim left her home on Blue Hampton Lane and walked up Kingville Drive in search of someone with a cigarette. When the victim noticed no one outside, the victim turned around to walk home. As the victim walked back down Kingville Drive towards Blue Hampton Lane, a “[bjlack male” with “dreadlocks” (the “assailant”) approached the victim from behind in the 600 block of Kingville Drive. The assailant first asked the victim if she had a man. The victim responded that she did. The assailant then touched the victim on the butt. The victim told the assailant not to touch her, but the assailant continued to walk beside her and touched her butt a second time. At that point, the victim told the assailant that she was going to call the police. The assailant then pushed the victim to the ground. While on top of the victim, the assailant put his hands under the victim’s shirt and down the victim’s pants. The victim testified that the assailant inserted several fingers into her vagina as far as they would go and touched her breasts. During the assault the victim fought back against the assailant by biting, punching, and yelling for help.

The assailant’s assault of the victim ended when the assailant jumped up, grabbed the victim’s phone, and ran away. At that time, the victim ran in the opposite direction to a neighbor’s house and called the police. The police responded within 10 minutes.

Once the police arrived, the victim informed the police of the sexual assault and described the assailant as a black male with dreadlocks, about 5 feet 9 inches tall, wearing a white tank top and gray sweat pants. Soon thereafter, a woman approached the police on the scene with additional information. The woman informed the police that she had heard a woman scream as she was walking down Kingville Drive and then saw a black male running through the woods and a black female walking out of the woods. The woman informed police that the black male looked similar to her neighbor and directed them to a residence at 416 Kingville Drive.

Following the tip, the police responded to 416 Kingville Drive and found defendant, who was wearing an electronic monitoring device. Due to the similarity between the description of the assailant provided by the victim and defendant’s appearance, the police performed a “showup” identification. The showup, which took place approximately one hour after the assault, resulted in a positive identification of defendant by the victim. Defendant was then arrested.

[647]*647In addition to the testimony from the victim and responding officers concerning the events that transpired on 30 July 2009, the victim identified defendant as the assailant a second time at trial and the State introduced evidence from defendant’s electronic monitoring device in order to place defendant at the scene of the assault.

On 27 July 2012, the jury returned verdicts finding defendant guilty of simple assault, sexual battery, larceny from the person, and second-degree sexual offense. Thereafter, judgments were entered sentencing defendant to consecutive terms totaling 102 to 133 months’ imprisonment; a term of 96 to 125 months’ imprisonment for the second-degree sexual offense conviction and a consecutive term of 6 to 8 months’ imprisonment for the remaining convictions that were consolidated for judgment. In addition, the trial court ordered defendant to register as a sex offender and enroll in satellite-based monitoring, both for the remainder of his natural life, upon release from prison. Defendant gave notice of appeal in open court.

II ANALYSIS

Now on appeal, defendant contends that the trial court committed plain error by admitting: (1) testimony and evidence of GPS tracking based on data from the electronic monitoring device worn by defendant; and (2) out-of-court and in-court identifications of defendant by the victim. Additionally, defendant contends that, to the extent his counsel failed to object to the admission of the tracking evidence and the identifications, he was denied the effective assistance of counsel.

Standards of Review

In regard to defendant’s assertions of plain error, “[i]n criminal cases, an issue that was not preserved by objection noted at trial . . . may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). The North Carolina Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge’s instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ ” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). “Under the plain error rule, defendant must convince this Court not only [648]*648that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

In regard to defendant’s claims of ineffective assistance of counsel, “[i]t is well established that ineffective assistance of counsel claims ‘brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required ....’” State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)). “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.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006).

Evidence of Tracking

Expanding on the background above, at trial, the State called Sergeant Dave Scheppegrell (“Sgt. Scheppegrell”) to testify concerning the electronic monitoring device worn by defendant and the data produced by that device. Sgt.

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Bluebook (online)
748 S.E.2d 50, 229 N.C. App. 644, 2013 WL 5183980, 2013 N.C. App. LEXIS 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jackson-ncctapp-2013.