State v. Dinan

NO. COA13-1022

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Onslow County
No. 10 CRS 52727
COREY DINAN

Appeal by defendant from judgments entered 8 March 2013 by

Judge Jack W. Jenkins in Onslow County Superior Court. Heard in

the Court of Appeals 17 February 2014.

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

James Goldsmith, Jr. for defendant.

ELMORE, Judge.

Corey Dinan (defendant) appeals his convictions of

intentional child abuse resulting in serious bodily injury under

N.C. Gen. Stat. § 14-318.4(a3) and of assault on a child under

the age of twelve in violation pursuant to N.C. Gen. Stat. § 14-

33(c)(3). We hold that defendant received a trial free from

error in part. Defendant’s final issue is dismissed without

prejudice and allows defendant the opportunity to file

appropriate motions with the trial court.
 -2-
I. Factual Background

Abby1, the victim in this case, is the biological daughter

of defendant and Sarah F., defendant’s now ex-wife. Abby was

born 17 February 2010 and was approximately six-weeks-old at the

time of the requisite child-abuse incident. At defendant’s

trial, Ms. F. testified that on 4 April 2010, defendant gave

Abby her early-morning bottle. When Ms. F. woke, she went to

the family room and saw Abby in her “princess swing” and

defendant sitting “Indian style” on the floor. Abby was

struggling to breathe. Ms. F. asked, “what’s wrong with my

baby?” Defendant responded, “I don’t know. I don’t know.

She’s been like that all morning.” Ms. F. demanded that they

take Abby to Onslow Memorial Hospital (Onslow). Abby was kept

over-night at Onslow before being transferred to Pitt Memorial

Hospital (now Vidant) for additional treatment.

Dr. Coral Steffey (Dr. Steffey), pediatrician and expert

in the field of pediatrics and child abuse, testified that on 5

April 2010 she was called to Vidant to consult on Abby’s

condition. She testified that Abby was transferred from Onslow

to Vidant for additional treatment after physicians discovered

that Abby’s oxygen saturations were low, that she was having

1
Pseudonyms are used throughout the opinion to protect the
identities of minors and other persons involved in this action.
 -3-
difficulty breathing, that she was dehydrated, and that x-rays

showed multiple rib fractures and a hemothorax. In fact, Abby

had 24 identifiable rib fractures, both new and healing. X-rays

taken of Abby’s ribs 17 days prior did not reveal any rib

fractures. Accordingly, Dr. Steffey opined that between 18

March and 4 April 2010, someone injured Abby on at least two

occasions to the point that she sustained multiple rib

fractures. Dr. Steffey read the opinion from her medical report

into the record, as follows: “There is no medical explanation

for Abby’s constellation of injuries, which include healing and

acute rib fractures with hemothorax, intra-cranial hemorrhage,

subconjunctival hemorrhages and bruising to her ankle. No

history of trauma has been provided to explain Abby’s injuries.

The constellation of inexplicable injuries is consistent with a

diagnosis of child physical abuse with inflicted injuries, on

more than one occasion.”

Elizabeth Pogroszewski, social worker for Onslow County

Department of Social Services, testified that on 4 April 2010

she asked defendant his opinion as to what contributed to Abby’s

injuries. He responded, “[I] must have held her too tight.”

Additionally, four officers with the Jacksonville Police

Department testified at trial. Officer Timothy Sawyer testified
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that defendant made a written statement in which he admitted to

holding Abby too tight. Detective Anthony Ramirez testified

that defendant demonstrated for him how he picked up Abby and

held her with his elbows locked. Detective Trudy Allen

testified that when she asked defendant how Abby was injured, he

made “a shaking motion, just as if he would shake up the

contents of a canister.” At that point, she arrested defendant

for felony child abuse. Officer Jason Lagana testified that

defendant made the following spontaneous statement to him: “I

guess you get charged for holding your kid too tight.”

At trial, defendant sought to exclude the testimony of

Brent Cross, defendant’s friend and fellow Marine, and Megan

Dinan, defendant’s former ex-wife. After voir dire, the trial

court denied defendant’s motions in limine, finding that the

proffered testimony was relevant as it went to the issue of

“knowledge, absence of mistake and intent.” Further, the trial

court found that the probative value of the 404(b) testimony was

not substantially outweighed by its prejudicial effect.

Brent Cross testified that in 2006 he was helping defendant

with a home-improvement project when defendant’s then wife,

Megan Dinan, left the couple’s napping infant son in defendant’s

care. When the baby woke crying, Mr. Cross testified that
 -5-
defendant became “agitated.” Defendant went to the baby’s room

and, through the monitor, told Mr. Cross, “I got the baby now.

You can go ahead and shut the baby monitor off. I got it.” Mr.

Cross had an “instinct” to keep the monitor on. When the baby

was picked up, Mr. Cross testified that he heard the baby’s cry

become “hysterical” and he heard defendant’s tone change from

“upset” to “just anger.”

Megan Dinan testified that she and defendant had two

biological sons together, Ian and Sam. However, after

divorcing, defendant relinquished his parental rights. She

testified that when Ian was approximately eight-weeks old, he

woke one morning with “one tiny little bruise” on his chest.

Defendant was responsible for feeding Ian during the night. The

following morning, Ian woke “covered in bruises, head to toe.

He was so bruised that his earlobes were bruised.” Ian was

hospitalized and diagnosed as having a virus, which doctors

thought could account for his severe bruising. After Ian was

released from the hospital, Ms. Dinan noted subsequent bruising

in the shape of finger prints on Ian. Ms. Dinan testified that

when she confronted defendant, he responded, “it is my

handprint, [] I was holding him last night and I think I held

him too tight.”
 -6-
Defendant testified on his own behalf at trial. He alleged

that he never “mistreated” Abby on 4 April 2010 or any time

prior. He admitted to accidentally treating her like a one-year

old instead of a six-week old. After the defense rested, the

jury found defendant guilty of intentional child abuse resulting

in serious bodily injury and of assault on a child under the age

of twelve. The trial court sentenced defendant on 8 March 2013

to a term of 73 months to 97 months imprisonment, plus 60 days.

II. Analysis

A. Rule Violation

Initially, we direct defense counsel’s attention to Rule 28

of the North Carolina Rules of Appellate Procedure. Rule

28(b)(4) requires counsel to include “a statement of the grounds

for appellate review. Such statement shall include citation of

the statute or statutes permitting appellate review.” N.C.R.

App. P. 28(b)(4). In his brief, defense counsel provides:

This Court is called upon to determine
whether [defendant] was deprived of his
fundamental right to a fair trial where
evidence of uncharged prior bad acts were
introduced to establish criminal propensity,
and where the trial court failed to make a
determination that the probative value
outweighed any prejudice. . . . Further,
this Court is called upon to determine
whether [defendant] received ineffective
assistance of counsel[.]
 -7-
Defense counsel has violated Rule 28(b)(4). The above

“statement” fails to reference any statute which would allow for

appellate review—defense counsel has merely reiterated the

issues he raises on appeal. Here, defense counsel is licensed

in Florida. Nevertheless, we urge defense counsel and all

counsel to be mindful of our Rules of Appellate Procedure.

Defendant first argues that the trial court erred in

admitting testimony relating to his “uncharged prior bad acts”

under Rule 404(b). We are unable to address the merits of this

issue because defendant offers no clear or reasoned argument in

support of his position as required by Rule 28(b)(6). See

N.C.R. App. P. 28(b)(6). Specifically, in defendant’s first

issue he fails to direct us to the testimony that he argues it

was error for the trial court to admit. We assume that

defendant challenges the testimony of Mr. Cross and Ms. Dinan

pursuant to Rules 404(b) and 403, as these witnesses are

referenced in this issue. Further, defendant’s argument is

presented in a nonsensical manner. At the very least, defendant

is required to direct us to the challenged testimony—it is not

this Court’s duty to craft defendant’s argument for him.

Accordingly, defendant’s first argument is abandoned on appeal

pursuant to Rule 28(b)(6).
 -8-
B. Admission of 404(b) Evidence

Alternatively, based on defendant’s recitation of the facts

and a review of the transcript, we assume arguendo that in his

first issue, defendant is objecting to the admission of the

unfavorable character evidence offered by Mr. Cross and Ms.

Dinan. Nevertheless, we remain unable to address the merits as

defendant has failed to preserve this issue for our review.

“[T]o preserve for appellate review a trial court’s

decision to admit testimony, objections to [that] testimony must

be contemporaneous with the time such testimony is offered into

evidence and not made only during a hearing out of the jury’s

presence prior to the actual introduction of the testimony.”

State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010)

(citations and quotations marks omitted). At trial, defendant

did not object to the admission of what we believe constitutes

the challenged testimony of Mr. Cross and Ms. Dinan. Therefore,

he did not preserve the issue of the admissibility of this

testimony for our review. Id.

Failure to properly preserve an argument restricts this

Court’s review on appeal to plain error. However, Rule 10(a)(4)

states that such review is only available “when the judicial

action questioned is specifically and distinctly contended to
 -9-
amount to plain error.” N.C.R. App. P. 10(a)(4). In his brief,

defendant does not ask this Court to review the issue under the

plain error standard. When the State noted defendant’s failure

to argue plain error in the State’s brief, defendant attempted

to cure this deficiency by mentioning plain error in defendant’s

reply brief. However, a reply brief is not an avenue to correct

the deficiencies contained in the original brief. See N.C.R.

App. P. 28(b)(6); see also State v. Davis, 202 N.C. App. 490,

497, 688 S.E.2d 829, 834 (2010) (“[B]ecause [d]efendant did not

‘specifically and distinctly’ allege plain error as required by

[our appellate rules], [d]efendant is not entitled to plain

error review of this issue.”).

C. Scope of Prosecutor’s Cross-Examination

Defendant next contends that the prosecutor’s improper

cross-examination deprived him of a fair trial. We are not

persuaded that the prosecutor questioned defendant in an

unreasonable manner.

Generally, “[t]he scope of cross-examination . . . is

within the sound discretion of the trial court, and its ruling

thereon will not be disturbed absent a showing of abuse of

discretion.” State v. Herring, 322 N.C. 733, 743, 370 S.E.2d

363, 370 (1988) (citation omitted). However, here defendant
 -10-
argues that we should review this issue under the plain error

standard of review. We agree. As such, defendant “must

demonstrate that a fundamental error occurred at trial.” State

v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “To

show that an error was fundamental, a defendant must establish

prejudice that, after examination of the entire record, the

error had a probable impact on the jurys finding that the

defendant was guilty.” Id. (citation and quotation omitted).

In the instant case, defendant takes issue with the

prosecutor’s line of questioning in three specific instances2.

First, he contends that the prosecutor inappropriately tried to

“place him at odds” with Sarah F. by asking, “[y]ou don’t

believe Sarah caused these injuries at all, do you?” and “[d]o

you believe that Sarah F. caused these injuries to Abby?”

Second, defendant argues that it was error for the prosecutor to

“challenge[] defendant to call [Detective Allen] a liar[.]” We

assume that defendant is referencing the following question:

“So Detective Allen, then, is lying about you [showing her how

you shook Abby]?” Defendant replied, “I wouldn’t say lie, just

changing facts about who said what.” Third, defendant argues

2
Defendant also argues that the prosecutor improperly questioned
Megan Dinan. However, we cannot address the merits of this
argument as counsel’s argument lacks sufficient specificity.
 -11-
that it was inappropriate for the prosecutor to ask, “how long

are you going to wait with that infant before you begin holding

him or her too tightly?” However, as to this last question, the

record shows that the trial judge sustained defense counsel’s

objection to the question and instructed the jury to disregard

it. In addition, the prosecutor withdrew the question. Thus,

defendant’s argument as to this question is moot.

Further, defendant makes no argument as to how he was

prejudiced by these questions; he merely contends that he was

“highly prejudiced by this impossible questioning[.]” Without a

showing of prejudice, defendant cannot establish that any

alleged error was a fundamental error. See State v. Cummings,

352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532

U.S. 997, 121 S. Ct. 1660, 149 L. Ed. 2d 641 (2001) (“[An] empty

assertion of plain error, without supporting argument or

analysis of prejudicial impact, does not meet the spirit or

intent of the plain error rule.”). Therefore, defendant’s

argument must be overruled. Assuming arguendo that defendant

made a showing of prejudice, defendant has not convinced this

Court that absent the prosecutor’s questions, the jury probably

would have reached a different verdict. The record contains

additional evidence of defendant’s guilt.
 -12-
D. Ineffective Assistance of Counsel

Lastly, defendant contends that defense counsel was

ineffective because he 1) completely misapprehended the law with

respect to the element of “intent,” 2) elicited damaging

testimony from the State’s witnesses and defendant, and 3)

permitted “prosecutorial misconduct” by failing to object to the

prosecutor’s questions. Given our conclusion in section “C,”

defendant’s third contention moot. We dismiss defendant’s

remaining arguments without prejudice to defendant’s right to

file appropriate motions in the trial court.

When raising claims of ineffective assistance of counsel,

the “accepted practice” is to bring these claims in post-

conviction proceedings, rather than on direct appeal. State v.

Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985).

Here, defendant has “prematurely asserted his ineffective

assistance of counsel claim” by directly appealing to this

Court. State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d 544,

548 (2001) (quotation and citation omitted).

Defendant raises potential questions regarding defense

counsel’s trial strategy. However, it is unclear from

defendant’s brief what specific conduct he challenges as being

ineffective. As such, we are unable to address the merits of
 -13-
defendant’s argument. To best resolve this issue, an

evidentiary hearing available through a motion for appropriate

relief is our suggested mechanism. Id.; see also State v. Ware,

125 N.C. App. 695, 697, 482 S.E.2d 14, 16 (1997) (dismissing the

defendant’s appeal where the issues could not be determined from

the record and concluding that “[t]o properly advance these

arguments, defendant must move for appropriate relief pursuant

to G.S. 15A–1415[ ] and G.S. 15A-1420[ ]”). “Upon the filing of

a motion for appropriate relief, the trial court will determine

the motion and make appropriate findings of fact.” Ware, 125

N.C. App. at 697, 482 S.E.2d at 16.

III. Conclusion

In sum, we deem defendant’s first issue abandoned on

appeal. Assuming arguendo that it is not abandoned, defendant

failed to properly preserve it for our review. We overrule

defendant’s second issue that he was prejudiced by the

prosecutor’s line of questioning. Finally, defendant’s

ineffective assistance of counsel claim is dismissed without

prejudice so that he may file appropriate motions in the trial

court.

No error in part; dismissed in part.

Chief Judge MARTIN and HUNTER, Robert N., concur.