In this child sexual assault case, the court reversed the trial court’s order denying the defendant’s Motion for Appropriate Relief (MAR) seeking a new trial for ineffective assistance of counsel related to opinion testimony by the State’s expert. The defendant was convicted of sexual offenses against Kim. On appeal the defendant argued that the trial court should have granted his MAR based on ineffective assistance of both trial and appellate counsel regarding expert opinion testimony that the victim had in fact been sexually abused.

(1) The court began by concluding that the testimony offered by the State’s expert that Kim had, in fact, been sexually abused was inadmissible. The court reiterated the rule that where there is no physical evidence of abuse, an expert may not opine that sexual abuse has in fact occurred. In this case the State offered no physical evidence that Kim had been sexually abused. On direct examination the State’s expert testified consistent with governing law. On cross-examination, however, the expert expressed the opinion that Kim “had been sexually abused.” And on redirect the State’s expert again opined that Kim had been sexually abused. In the absence of physical evidence of sexual abuse, the expert’s testimony was inadmissible.

(2) The court went on to hold, however, that because the defendant failed to raise the issue on direct appeal, his claim that trial counsel was ineffective by failing to move to strike the expert’s opinion that victim Kim had in fact been sexually abused was procedurally defaulted. The record from the direct appeal was sufficient for the court to determine in that proceeding that trial counsel provided ineffective assistance of counsel. Defense counsel failed to object to testimony that was “clearly inadmissible” and the court could not “fathom any trial strategy or tactic which would involve allowing such opinion testimony to remain unchallenged.” And in fact, the trial transcript reveals that allowing the testimony to remain unchallenged was not part of any trial strategy. Moreover trial counsel’s failure to object to the opinion testimony was prejudicial. Because the “cold record” on direct appeal was sufficient for the court to rule on the ineffective assistance of counsel claim, the MAR claim was procedurally barred under G.S. 15A-1419(a)(3).

(3) The court continued, however, by holding that the defendant was denied effective assistance of appellate counsel in his first appeal when appellate counsel failed to argue that it was error to allow the expert’s testimony that Kim had, in fact, been sexually abused. The court noted that the ineffective assistance of appellate counsel claim was not procedurally barred. And, applying the Strickland attorney error standard, the court held that appellate counsel’s failure to raise the issue on direct appeal constituted ineffective assistance of counsel. The court thus reversed and remanded for entry of an order granting the defendant’s MAR.

One judge on the panel concurred with the majority “that appellate counsel was ineffective”; concurred in result only with the majority’s conclusion that the claim regarding trial counsel’s ineffectiveness was procedurally barred; but, concluding that the defendant was not prejudiced by the expert’s testimony, dissented from the remainder of the opinion.

In this Haywood County case, defendant appealed his convictions for multiple felony and misdemeanor child abuse offenses, arguing a range of issues related to sentencing and errors by the trial court, as well as possible ineffective assistance of counsel. The Court of Appeals agreed with defendant’s sentencing arguments and remanded for resentencing, but found no prejudicial or plain error. The court dismissed defendant’s ineffective assistance of counsel claim without prejudice to allow him to file a motion for appropriate relief with the trial court. 

Defendant came to trial in October of 2017 for abusing the children of his wife over the course of several years. Abuse included paddling one child victim so hard she suffered permanent injuries and required medical treatment. At trial, the jury found defendant guilty of all charges against him except for rape, and also found an aggravating factor that defendant took advantage of a position of trust or confidence. The trial court sentenced defendant to higher classifications of intentional child abuse inflicting serious bodily injury (“ICAISBI”) and intentional child abuse inflicting serious physical injury (“ICAISPI”) due to the aggravating factor.

The Court of Appeals first identified defendant’s meritorious issues, explaining that under applicable law, the evidence necessary to prove an element of the offense cannot be used as an aggravating factor. Here, “both misdemeanor and felony child abuse require showing the defendant is a ‘parent . . . or . . . other person providing care to or supervision of [a] child,’” meaning the aggravating factor could not be applied to defendant. Slip Op. at 10, quoting GS §§ 14-318.2 & -318.4. The state conceded this error, and the court remanded all convictions for resentencing. 

The court next considered defendant’s argument that his ICAISPI and ICAISBI convictions were ambiguous due to a change in the felony classifications on December 1, 2013. Because the abuse in question occurred between January 2009 and March 2014, and the jury did not perform a specific finding of the date of the offenses, the court found that the verdict was ambiguous. Noting that this seemed to be a matter of first impression, the court explained:

[W]e have not found, and the parties have not provided, a published case resolving whether a general verdict is rendered ambiguous by evidence showing the completed offense may have been committed on either temporal side of a statutory reclassification of the crime. . . . [W]e hold that the general verdict is ambiguous under these circumstances and a defendant, absent a determination by the jury by special verdict form as to the specific date of or date range of offense sufficient to determine which sentencing regime is applicable, must be sentenced under whichever statutory classification is lower.

Id. at 12. The court remanded for resentencing the ICAISPI and ICAISBI offenses at their lower pre-elevation levels because the court could not engage in speculation about which dates supported the jury’s decision to convict defendant. 

The court did not find merit in defendant’s argument that the scarring one victim suffered from paddling could not support a finding of serious bodily injury. Instead, the court drew a distinction between cases with “superficial” or “aesthetic” injuries with the more serious, permanent injuries suffered by the victim in this matter. Likewise, the court rejected defendant’s argument that the jury verdict sheet for ICAISBI represented error, as it asked the jury to determine if defendant was guilty of “inflicting permanent scarring to the buttocks and/or legs” of the victim. Id. at 23. The court explained that the indictment and jury instructions given by the trial court adequately explained all elements of the offense. 

The court also rejected defendant’s arguments regarding lesser included offenses. The court considered and rejected defendant’s argument regarding lawful corporal punishment, explaining that overwhelming evidence showed the acts were not within the bounds of lawful punishment. Finally, the court rejected defendant’s argument the trial court erred by preventing the disclosure of juvenile records. 

For defendant’s ineffective assistance of counsel claim, the court explained that the record was insufficient to determine whether defense counsel made certain strategic decisions, and “[w]hen the record is silent on that question of fact—as in this case—the appropriate action is to allow an evidentiary hearing by MAR.” Id. at 35. 

The court declined to address the defendant’s claim that he received ineffective assistance of counsel when his lawyer failed to object to and agreed to the admission of a hearsay statement and failed to request a jury instruction on the ultimate user exception to the Control Substances Act. The court noted that the record was insufficient to determine whether trial counsel was ineffective or whether there was a reasonable, strategic reason for counsel’s actions, and dismissed the claim without prejudice to the defendant’s right to assert it in a motion for appropriate relief.

Finding the record in this child sexual assault case insufficient to rule on the defendant’s ineffective assistance of counsel claim, the court denied the claim without prejudice to the defendant’s right to assert it in a MAR proceeding. The defendant argued that he received ineffective assistance of counsel when his lawyer elicited evidence of guilt that the State had not introduced. Specifically, he argued that while the State only elicited testimony from the victim about one instance of sexual intercourse with the defendant, defense counsel asked the victim a leading question implying that she had sex with the defendant on two occasions.