State v. Fabian, 2022-NCCOA-793, ___ N.C. App. ___ (Dec. 6, 2022)

In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.

Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.

Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.

Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.

Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.

Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.