State v. Helms, COA12–1436.

750 S.E.2d 918

STATE of North Carolina

v.Richard Ula HELMS, Jr., Defendant.

No. COA12–1436.

Court of Appeals of North Carolina.

Sept. 3, 2013.

Appeal by defendant from judgments entered 6 March 2012 by Judge Richard T. Brown in Hoke County Superior Court. Heard in the Court of Appeals 9 April 2013.

Roy Cooper, Attorney General, by David Gordon, Assistant Attorney General, for the State.

Kevin P. Bradley, for defendant-appellant.

DAVIS, Judge.

Defendant Richard Ula Helms, Jr. (“defendant”) appeals from his convictions for various sex offenses. After careful review, we reverse in part, vacate in part, and remand for resentencing.

Factual Background

At trial, the State presented evidence tending to establish the following facts: Defendant became a stepfather to “Jamie,” ¹ the victim, when he married her mother in 2001. Defendant began to sexually abuse Jamie in 2007, and at trial, Jamie testified about several specific instances of sexual abuse that she could recall.

The first incident of abuse occurred between 3 October 2007 and 31 October 2007, when Jamie was 14 years old. On that occasion, defendant came into her bedroom, blocked the door, and made Jamie take off her pants. He placed his tongue on both the inside and outside of her vagina and digitally penetrated her vagina. Jamie did not tell anyone at the time of the incident because she did not want to “ruin what little family” she had.

The second incident took place in either June or July of 2008, when Jamie was 15 years old. While taking her to practice driving, defendant drove the car behind a group of trees, told Jamie to remove her clothes, and ordered her to perform oral sex on him. Defendant then performed oral sex on Jamie, penetrated her vagina with his penis, and ejaculated on her chest.

A third incident occurred in August 2009. That particular morning, Jamie went into the bedroom shared by her mother and defendant to wake defendant up for work. Defendant threw her on the bed and “entered [her] vaginally with his penis, and he tried to do anal.” When Jamie yelled at him that it hurt, he put his penis back inside her vagina and ejaculated on her stomach.

The final incident took place in January 2010. Jamie's friend, “Alice,” was visiting Jamie at her house. Jamie and Alice were in Jamie's bedroom when defendant came to her door. Defendant told them both to lay on their stomachs. Defendant then placed a blanket under the door frame so that the door would not open. Defendant proceeded to unclasp the girls' bras and rub their breasts. He also unbuttoned their pants and digitally penetrated their vaginas.

Defendant was indicted on one count of statutory rape, eight counts of statutory sexual offense, sixteen counts of sexual activity by a substitute parent, one count of attempted sexual activity by a substitute parent, two counts of incest, nine counts of indecent liberties with a minor, and one count of disseminating obscenity to a minor under 16. A jury trial was held during the February and March 2011 Criminal Sessions of Hoke County Superior Court.

When asked at trial if any other incidents of sexual abuse occurred between October of 2007 and June of 2008, Jamie responded “I don't remember.... I believe he licked my vagina and fingered my vagina.” Jamie testified that she could not remember how many times this happened but that it occurred more than once. When similarly asked about the period of time between July 2008 and August 2009, Jamie testified that defendant “penetrated [her] with his penis” and had her watch pornography with him. She again testified that she could not remember how many times this occurred.

Dr. Laura Gutman testified at trial as an expert witness in the field of child sex abuse and general pediatrics. She testified that she performed a physical examination of Jamie on 4 February 2010 and observed tears to her hymen in two places, “all the way down to the level of the vaginal floor.” Dr. Gutman testified that these injuries were “diagnostic of penetrative trauma to the vaginal area .” Dr. Gutman also took a medical history, and Jamie told her about numerous incidents of sexual activity between her and defendant.

At the close of all the evidence, defendant moved to dismiss the charges against him for insufficient evidence, and the trial court dismissed one count of statutory sex offense, one count of incest, and four counts of sexual activity by a substitute parent. The jury found defendant guilty of one count of statutory rape, twelve counts of sexual activity by a substitute parent, one count of attempted sexual activity by a substitute parent, one count of disseminating obscenity to a minor under the age of 16, seven counts of statutory sex offense, nine counts of indecent liberties, and one count of incest.

The trial court arrested judgment on the attempted sexual activity by a substitute parent offense and consolidated the remaining offenses into four presumptive-range terms—two terms of 240–297 months and two terms of 25–39 months—to be served consecutively and one presumptive-range term of 240–297 months to be served concurrently. The trial court also entered orders requiring defendant to enroll in satellite-based monitoring (“SBM”) for the rest of his natural life. Defendant gave notice of appeal from both his convictions and the SBM orders.

Analysis

I. Ineffective Assistance of Counsel

Defendant asserts two separate ineffective assistance of counsel claims. First, he contends that his counsel violated his Sixth Amendment right to effective assistance of counsel by failing to argue that there was a fatal variance between the indictments and the evidence presented at trial in file numbers 10 CRS 937 and 10 CRS 50560. Second, he argues that his counsel was ineffective in failing to argue the lack of sufficient evidence of fellatio in connection with his motion to dismiss in file number 10 CRS 938. We discuss each in turn.

“In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147 N.C.App. 549, 553, 557 S .E.2d 544, 547 (2001), cert. denied,356 N.C. 623, 575 S.E.2d 758 (2002). This is so because this Court, in reviewing the record, is “without the benefit of information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor[,] that could be provided in a full evidentiary hearing on a motion for appropriate relief.” Id. at 554–55,557 S.E.2d at 547 (alteration in original) (citation and quotation marks omitted). However, ineffective assistance of counsel claims are appropriately reviewed on direct appeal “when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v.. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (citation and quotation marks omitted), cert. denied,546 U.S. 48, 163 L.Ed.2d 80 (2005).

Defendant's ineffective assistance of counsel claims here fall into this latter category because our analysis of his claims does not require additional evidence beyond what is contained in the record on appeal. See State v. Phillips, 365 N.C. 103, 144, 711 S.E.2d 122, 151 (2011) (“The incidents that defendant here argues constitute ineffective assistance of counsel may be determined from the record on appeal, so we can address them on the merits without the necessity to remand for an evidentiary hearing.”), cert. denied,––– U.S. ––––, 182 L.Ed.2d 176 (2012).

In order to establish ineffective assistance of counsel, “a defendant must show that (1) ‘counsel's performance was deficient’ and (2) ‘the deficient performance prejudiced the defense.’ “ Id . at 118,711 S.E.2d at 135 (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984)).

Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal citations and quotation marks omitted), cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006).

“A strong presumption exists that a counsel's conduct falls within the range of reasonable professional assistance.” State v.. Frazier, 142 N.C.App. 361, 367, 542 S.E.2d 682, 687 (2001). If “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, 152, 541 S.E.2d 803, 807 (2001) (citation and quotation marks omitted). However, counsel will be deemed ineffective if “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 80 L.Ed.2d at 692–93.

A. File Numbers 10 CRS 937 and 10 CRS 50560

Defendant argues that he received ineffective assistance of counsel by virtue of his attorney's failure to bring to the trial court's attention the fatal variance between the indictments for sexual activity by a substitute parent in file numbers 10 CRS 937 and 10 CRS 50560 and the evidence actually introduced at trial. We agree.

In the indictments in 10 CRS 937 and 10 CRS 50560, defendant was charged with “engag[ing] in a sexual act” with Jamie in violation of N.C. Gen.Stat. § 14–27.7(a) between 1 August 2009 and 31 August 2009 and between 1 June 2008 and 31 July 2009, respectively. Under N.C. Gen.Stat. § 14–27.7(a), “a defendant who has assumed the position of a parent in the home of a minor victim [and] engages in vaginal intercourse or...