State v. Tabron

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-634
NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Edgecombe County
No. 11 CRS 53248
DONALD TABRON

Appeal by defendant from judgment entered 30 October 2012

by Judge W. Russell Duke, Jr., in Edgecombe County Superior

Court. Heard in the Court of Appeals 20 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Alexandra Gruber, for the State.

Unti & Lumsden LLP, by Margaret C. Lumsden, for defendant
appellant.

McCULLOUGH, Judge.

Donald Tabron (“defendant”) appeals from his conviction for

taking indecent liberties with a child. For the following

reasons, we find no prejudicial error.

I. Background

On 3 January 2012, defendant was indicted by an Edgecombe

County Grand Jury on one count of statutory rape and one count
 -2-
of taking indecent liberties with a child. These charges

originated from accusations by the alleged victim, S.A. A

superseding indictment was subsequently entered on 24 September

2012 to clarify the statutory rape charge.1 Defendant’s case

came on for trial on 29 October 2012 in Edgecombe County

Superior Court, the Honorable W. Russell Duke, Jr., Judge

presiding.

The State’s evidence at trial tended to show that, while

growing up, S.A. often stayed with Renee Tabron and defendant,

her grandmother and step-grandfather, respectively, on weekends

and over the summer. At some point in 2006, when S.A. was in

the ninth grade, S.A. moved in with Renee and defendant

permanently. Although Renee and defendant had a four bedroom

house, the house was often full because Renee was a licensed

therapeutic foster parent and cared for several children in

addition to S.A. As a result, S.A. would sometimes sleep on an

air mattress in the living room.

When questioned as to when her relationship with defendant

turned sexual, S.A. responded when she was thirteen. S.A. then

testified about the first time defendant inappropriately touched

1
The superseding indictment elevated the statutory rape charge
from a Class C felony to a Class B1 felony because “defendant
[was] at least six years older than the [alleged victim.]” N.C.
Gen. Stat. § 14-27.7A (2013).
 -3-
her. S.A. recalled that she was staying with Renee and

defendant for the weekend and was sleeping on the air mattress

when defendant entered the room, sat in a recliner, placed her

on his lap, and began rubbing her chest. It was late and

everyone else was in bed at the time.

Upon further questioning, S.A. testified that subsequent to

the initial touching, defendant had sexual intercourse with her

in the summer of 2006. S.A. was still thirteen at the time.

S.A. was able to describe the event in detail and recalled

defendant told her not to tell anyone because it would mess

everything up for her grandmother and herself. S.A. testified

similar acts continued until she was sixteen years old, at which

time she told defendant to stop because it was not right.

S.A. did not tell anyone about what had happened with

defendant until Renee confronted S.A. about her sexual

orientation in 2011. At that point, S.A. told Renee that

defendant had touched her and had sex with her.

In addition to S.A.’s testimony, Renee and one of Renee’s

daughters, Shawanna Battle, testified that defendant admitted to

what he had done. Renee first testified that when she

confronted defendant with S.A.’s accusations, defendant admitted

to a sexual relationship with S.A., but claimed S.A. was the
 -4-
aggressor and he was weak. Shawanna then testified that several

days after Renee informed her of S.A.’s accusations, defendant

and Renee unexpectedly visited her at her home, at which time

defendant proceeded to apologize for what he did wrong.

Although defendant did not specifically reference or detail his

sexual relationship with S.A., Shawanna testified she knew that

was what defendant was apologizing for because he referred to

S.A., said he was there to talk about what Renee told her about

S.A., and stated it was going to be a big mess when S.A.’s

mother found out.

Following the presentation of the State’s case, defendant

took the stand in his own defense and denied S.A.’s allegations.

Defendant further denied admitting anything to Renee or

Shawanna.

The case was given to the jury on 30 October 2012 and after

a brief period of deliberation, the jury returned a verdict

finding defendant not guilty of statutory rape and guilty of

taking indecent liberties with a child. At sentencing, the

trial court imposed a sentence of sixteen (16) to twenty (20)

months imprisonment. Additionally, because defendant was

convicted of a reportable conviction involving the sexual abuse

of a minor, the court ordered defendant to register as a sex
 -5-
offender for a period of thirty (30) years upon his release from

imprisonment.

Defendant gave oral notice of appeal in open court

immediately after he was sentenced.

II. Discussion

On appeal, defendant challenges his conviction for indecent

liberties with a child on the bases that the State’s closing

argument was improper, irrelevant and unfairly prejudicial

evidence was admitted for jury consideration, and he received

ineffective assistance of counsel.

(1) Closing Argument

In defendant’s first argument on appeal, defendant contends

the trial court erred in allowing the State to remark during

its’ closing argument that “[h]e admitted to some other affair

which he’s denying that other affair also now[.]” Specifically,

defendant argues the State’s statement was a mischaracterization

of the evidence and, in any event, was irrelevant and

inadmissible in the case.

At the outset, we note defendant failed to object to the

State’s closing argument at trial.

The standard of review for assessing alleged
improper closing arguments that fail to
provoke timely objection from opposing
counsel is whether the remarks were so
 -6-
grossly improper that the trial court
committed reversible error by failing to
intervene ex mero motu. In other words, the
reviewing court must determine whether the
argument in question strayed far enough from
the parameters of propriety that the trial
court, in order to protect the rights of the
parties and the sanctity of the proceedings,
should have intervened on its own accord
and: (1) precluded other similar remarks
from the offending attorney; and/or (2)
instructed the jury to disregard the
improper comments already made.

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)

(citation omitted); see also State v. Alford, 339 N.C. 562, 571,

453 S.E.2d 512, 516 (1995) (“[T]he standard of review to

determine whether the trial court should have intervened ex mero

motu is whether the allegedly improper argument was so

prejudicial and grossly improper as to interfere with

defendant's right to a fair trial.”).

“A lawyer's function during closing argument is to provide

the jury with a summation of the evidence, which in turn serves

to sharpen and clarify the issues for resolution by the trier of

fact, and should be limited to relevant legal issues.” Jones,

355 N.C. at 127, 558 S.E.2d at 103 (citations and quotation

marks omitted). “[C]ounsel are given wide latitude in arguments

to the jury and are permitted to argue the evidence that has

been presented and all reasonable inferences that can be drawn
 -7-
from that evidence.” State v. Richardson, 342 N.C. 772, 792-93,

467 S.E.2d 685, 697 (1996).

In the present case, the State remarked that “[defendant]

admitted to some other affair which he’s denying that other

affair also now[.]” As the State concedes, this statement was a

mischaracterization of the evidence. At trial, there was no

testimony that defendant had “some other affair[.]” Both

Renee’s and defendant’s testimony shows that when Renee

confronted defendant about cheating, defendant believed Renee

was referring to a woman that he had performed some work for.

Defendant, however, testified that he told Renee he was not

having an affair with the woman.

Now on appeal, defendant contends the trial court committed

reversible error by failing to intervene ex mero motu and

exclude the State’s mischaracterization of the evidence during

closing arguments. Defendant argues that absent the

mischaracterization, “the jury would have found him more

credible and would have been more likely to acquit him.” In

support of his argument defendant cites State v. Maxwell, 96

N.C. App. 19, 384 S.E.2d 553 (1989).

In Maxwell, the defendant “was convicted on one charge of

taking indecent liberties with a minor and two separate charges
 -8-
of first-degree statutory rape.” 96 N.C. App. at 20, 384 S.E.2d

at 554. On appeal, this Court considered “whether the trial

court erred in admitting testimony of alleged prior bad acts of

a sexual nature committed by [the] defendant[,]” Id. at 22, 384

S.E.2d at 555, and granted the defendant a new trial, holding

the inflammatory evidence was highly prejudicial and should not

have been admitted under N.C. Gen. Stat. § 8C-1, Rule 404. Id.

at 25, 384 S.E.2d at 557. Specifically regarding evidence of an

extramarital affair, this Court stated “[t]here was no

connection between evidence of defendant's alleged affair and

the crimes with which he was charged. This evidence . . . does

little more than impermissibly inject character evidence . . .

.” Id.

Relying on Maxwell, defendant argues the same result is

warranted in this case, adding that the prejudice is even worse

as a result of the State’s mischaracterization of the testimony.

While we acknowledge the Maxwell holding and agree that

evidence of an unrelated extramarital affair would be

inadmissible in this case to prove the charges against

defendant, the issue decided in Maxwell is not the same as the

issue presently before this Court. This first issue on appeal

concerns the State’s improper remark during its closing
 -9-
argument, not the admission of evidence at trial as in Maxwell.

Upon review of the State’s closing argument and the rest of the

evidence presented at trial, we hold the single remark by the

State, although a mischaracterization of the evidence and

erroneous, was not “so prejudicial and grossly improper as to

interfere with defendant's right to a fair trial.” Alford, 339

N.C. at 571, 453 S.E.2d at 516.

(2) Testimony

In the second and third issues on appeal, defendant

contends the trial court erred in admitting certain testimony

into evidence at trial. Specifically, defendant objects to the

admission of testimony regarding defendant’s bad character and

S.A.’s pregnancy on grounds that the testimony was irrelevant

and unfairly prejudicial.

Pursuant to N.C. Gen. Stat. § 8C-1, Rules 401 and 402,

“[t]he admissibility of evidence is governed by a threshold

inquiry into its relevance. In order to be relevant, the

evidence must have a logical tendency to prove any fact that is

of consequence in the case being litigated.” State v. Griffin,

136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (2000) (citation and

quotation marks omitted). Even when relevant, the trial court

may exclude evidence pursuant to N.C. Gen. Stat. § 8C-1, Rule
 -10-
403 when “its probative value is substantially outweighed by the

danger of unfair prejudice[.]” N.C. Gen. Stat. § 8C-1, Rule 403

(2013).

Relevancy is a question of law subject to de novo review.

State v. Kirby, 206 N.C. App. 446, 456, 697 S.E.2d 496, 503

(2010). Nevertheless, “‘the trial court's rulings on relevancy

. . . are given great deference on appeal[]’” because “the trial

court is better situated to evaluate whether a particular piece

of evidence tends to make the existence of a fact of consequence

more or less probable[.]” Dunn v. Custer, 162 N.C. App. 259,

266, 591 S.E.2d 11, 17 (2004) (quoting State v. Wallace, 104

N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991)). “We review a

trial court’s decision to exclude evidence under Rule 403 for

abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655

S.E.2d 388, 390 (2008)).

In the present case, however, defendant failed to object to

the admission of the testimony now challenged on appeal. Thus,

defendant has not preserved these issues for appellate review.

See N.C.R. App. P. 10(a)(1) (2014) (“In order to preserve an

issue for appellate review, a party must have presented to the

trial court a timely request, objection, or motion, stating the
 -11-
specific grounds for the ruling the party desired the court to

make . . . .”).

In criminal cases, [however,] an issue that
was not preserved by objection noted at
trial and that is not deemed preserved by
rule or law without any such action
nevertheless 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).

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. 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 jury's
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affects the fairness,
integrity or public reputation of judicial
proceedings[.]

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

(citations and quotation marks omitted).

As an initial matter, the State contends defendant failed

to “specifically and distinctly” allege plain error. Contrary

to the assertions in defendant’s reply brief, there is no

mention of “plain error” in defendant’s brief.2 Defendant does,

2
Defendant argues he specifically and distinctly asserted plain
 -12-
however, acknowledge that he failed to object to the admission

of the testimony at trial and cites State v. Odom, 307 N.C. 655,

300 S.E.2d 375 (1983), for the plain error standard of review.

Although the better practice is to explicitly assert the trial

court plainly erred, as defendant did in his initial brief,

given the circumstances in this case, we believe defendant has

sufficiently alleged plain error. Thus, we address defendant’s

arguments.

Bad Character Testimony

Throughout Renee’s testimony at trial, Renee described how

the events following S.A.’s allegations unfolded. During this

testimony, Renee made statements which defendant now claims

should have been excluded as irrelevant and highly prejudicial

evidence of his bad character. Specifically, defendant

identifies five statements by Renee that show the following:

(1) defendant cleaned out their bank account; (2) defendant

intended to have a girlfriend move into the house; (3) defendant

called the police to remove her from the house; (4) in 2010,

error and quotes portions of his brief filed on 23 July 2013.
However, by 26 August 2013 order, this Court allowed defendant’s
24 August 2013 motion designated Motion to Withdraw Defendant-
Appellant's Brief and to Submit a New Brief. Thus, defendant’s
23 July 2013 brief was stricken and a brief attached to
defendant’s motion was substituted.
 -13-
defendant began to tell her something had happened but did not

tell her what it was; and (5) the allegations against defendant

resulted in a loss of income from the foster care business.

Defendant further contends “this parade of horribles is certain

to have prejudiced the jury[]” and that absent the testimony,

the “jury would have weighed only the relevant evidence

regarding the charges against [d]efendant and would probably

have acquitted [defendant].”

In response, the State admits the testimony concerning the

bank account, defendant’s girlfriend, and the involvement of the

police is arguably irrelevant. Nevertheless, the State contends

the testimony does not rise to the level of plain error. In

regard to the remaining two statements, the State contends the

testimony was relevant to support Renee’s testimony that

defendant later admitted the alleged abuse and explain why S.A.

did not come forward immediately with the allegations.

Although we find merit to the State’s arguments that

portions of the challenged testimony were relevant, we need not

delve further into the issue. Assuming arguendo that all the

statements were irrelevant to any fact of consequence in the

case, we hold the admission of the testimony was not plain error

given the considerable evidence against defendant. With the
 -14-
exception of defendant’s conclusory statement, “[if] Renee

Tabron had been prevented from vilifying [d]efendant, a jury

would have weighed only the relevant evidence regarding the

charges against [d]efendant and would probably have acquitted

him[,]” defendant has failed to show “the error had a probable

impact on the jury's finding that the defendant was guilty.”

Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.

Evidence of Pregnancy

At trial, S.A. read a statement she provided to police

during their investigation. In the statement, S.A. stated that

“this started when I was thirteen-years-old and I had got

pregnant going on fourteen-years-old.” S.A. then indicated that

she lost the baby six to seven months into the pregnancy. On

cross-examination, defendant inquired further into the

pregnancy, questioning S.A. about statements she made concerning

the identity of the father. In response, S.A. acknowledged that

she told people that the father was a boy she was talking to;

yet, S.A. elaborated further on redirect that she told that to

people in order to protect defendant.

Defendant now claims that because there was no physical

evidence of sexual abuse and because S.A.’s testimony concerning

the number of incidents was not entirely credible, the State
 -15-
presented testimony about S.A.’s 2006 pregnancy and subsequent

miscarriage to bolster her accusations. Despite failing to

object at trial, defendant now objects to the suggestions that

the child was defendants and defendant had a role in having the

body cremated to cover up the sexual abuse. Specifically,

defendant argues that “to the extent the evidence was relevant,

its prejudicial effect outweighed its probative value.” Had the

jury not considered the testimony concerning the pregnancy,

defendant contends, the jury would have reached a different

verdict.

At the outset, we hold the evidence regarding S.A.’s

pregnancy relevant because if defendant was the father,

defendant inevitably committed the crime of statutory rape. See

N.C. Gen. Stat. § 14-27.7A(a) (“A defendant is guilty of a Class

B1 felony if the defendant engages in vaginal intercourse . . .

with another person who is 13, 14, or 15 years old and the

defendant is at least six years older than the person, except

when the defendant is lawfully married to the person.”).

Defendant’s argument, however, focuses on the prejudicial

nature of the testimony outweighing the probative value.

Defendant contends that while the prejudicial nature of the

evidence was great, the evidence had little probative value
 -16-
because “S.A. is the only source for the argument that the baby

was [d]efendant’s, and she made that allegation for the first

time in connection with [the] case.” Defendant further points

out that S.A. did not tell her mother who the father was and

told others that the father was a boyfriend. Based on what

defendant contends is “overwhelming” evidence that the defendant

was not the father, defendant contends the trial court should

not have admitted the testimony.

Although it is arguable that the evidence may have been

more prejudicial that probative, we do not address the argument.

Whether or not the trial court abused its discretion under N.C.

Gen. Stat. § 8C-1, Rule 403 when weighing the probative and

prejudicial values of the evidence is not reviewed by this Court

for plain error. See State v. Cunningham, 188 N.C. App. 832,

837, 656 S.E.2d 697, 700 (2008) (“The North Carolina Supreme

Court has specifically refused to apply the plain error standard

of review ‘to issues which fall within the realm of the trial

court's discretion[.]’” (quoting State v. Steen, 352 N.C. 227,

256, 536 S.E.2d 1, 18 (2000)).

Besides, assuming arguendo the trial court erred in

admitting the evidence of S.A.’s pregnancy, defendant has not

demonstrated the error amounts to plain error. Defendant merely
 -17-
states that the evidence was “inflammatory and doubtless led to

the jury’s convicting [him] under the influence of emotions. If

the jury had to rely only on S.A.’s questionable testimony, the

jury would have reached a different verdict.” As stated above,

there is considerable evidence of defendant’s guilt. Moreover,

it stands to reason that the jury did not believe defendant was

the father of the baby because if the jury believed defendant

was the father, the jury would have convicted defendant of

statutory rape. Thus, we hold it is not probable that the error

had an impact on the jury’s verdict.

(3) Ineffective Assistance of Counsel

In the final issue on appeal, defendant contends he

received ineffective assistance of counsel. Defendant’s

assertions of ineffective assistance of counsel stem from his

counsel’s failure to present testimony he claims would have been

beneficial to his defense and his counsel’s failure to object to

the testimony challenged on appeal.

“It 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.
 -18-
Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)), cert.

denied, 546 U.S. 830, 163 L. Ed. 2d 80 (2005).

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. 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

(citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L. Ed. 2d 116 (2006). This Court has recently

explained,

[a]s a general proposition, reviewing courts
do not second-guess the strategic or
tactical decisions made by a defendant's
counsel. For that reason, in evaluating
ineffective assistance claims stemming from
challenges to strategic and tactical
decisions made prior to and during trial, a
defendant's trial counsel is given wide
latitude . . . and the burden to show that
counsel's performance fell short of the
required standard is a heavy one for
defendant to bear. The deference shown to a
defense attorney's strategic and tactical
decisions stems from an acknowledgement that
[t]here are countless ways to provide
effective assistance in any given case and
 -19-
that [e]ven the best criminal defense
attorneys would not defend a particular
client in the same way. As a result, a
reviewing court must indulge a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance.

State v. Pemberton, _ N.C. App. _, _, 743 S.E.2d 719, 724-25

(2013) (citations and quotation marks omitted) (alterations in

original). “Relief should be granted only when counsel’s

assistance is so lacking that the trial becomes a ‘farce and

mockery of justice.’” State v. Pratt, 161 N.C. App 161, 163,

587 S.E.2d 437, 439 (2003) (quoting State v. Montford, 137 N.C.

App. 495, 502, 529 S.E.2d 247, 252 (2000)).

Failure To Offer Further Testimony Of Freda Noel

In defendant’s presentation of the evidence, defendant’s

counsel called Freda Noel, defendant’s ex-wife to the stand.

Defendant’s counsel then briefly questioned Freda about a

conversation she had with S.A. about the pregnancy. Freda

testified that S.A. told her the father was a boy at school.

Now on appeal, defendant claims that his counsel’s

performance was deficient because counsel failed to inquire

further into Freda’s conversation with S.A. Specifically,

defendant argues Freda gave compelling testimony during voir

dire that should have been elicited before the jury. This

testimony included statements by Freda that S.A. told her the
 -20-
pregnancy was planned with a boy at school and that she was

upset that the boy had left her. Defendant argues there is no

strategic reason for not presenting the testimony. We disagree.

A full review of the record indicates that the

admissibility of S.A.’s statements about the pregnancy and

father was argued to the trial court. During these arguments,

the State noted it did not object to the admission of testimony

that S.A. made statements that the father was someone other than

defendant. The State, however, was concerned that evidence of

outside acts would be admitted in violation of N.C. Gen. Stat. §

8C-1, Rule 412. In response, defendant’s counsel acknowledged

that he would not get into the specifics, but only wanted to

elicit testimony that S.A. told defendant and others that the

father was a boyfriend or a boy at school. The trial court

agreed to allow the testimony of S.A.’s statement only.

Considering the trial court’s ruling, we hold defendant’s

counsel did not fall below an objective standard of

reasonableness when he did not further inquire into Freda’s

conversation with S.A. Moreover, given the jury did not convict

defendant of statutory rape, we find it unlikely the admission

of additional testimony from Freda would have resulted in a

different result.
 -21-
Failure To Offer Evidence Of S.A.’s Sexual Orientation

Defendant further argues that his counsel’s performance was

deficient because trial counsel failed to present evidence of

S.A.’s sexual orientation after the State insinuated S.A.’s

homosexuality was the result of defendant’s wrongful conduct.

Defendant contends the evidence supported an alternative theory

that S.A. may have used the allegations against defendant to

distract Renee from her sexual orientation.

While the evidence may support an alternative theory of the

case or motive behind S.A.’s allegations, defendant has a heavy

burden to show that counsel’s strategic decision not to pursue

the theory or motive was error. Defendant has not met that

burden in this case where it is possible that further inquiry

into S.A.’s sexual orientation could have further harmed

defendant’s case.

Failure To Object To Evidence At Trial

In defendant’s final argument, defendant contends trial

counsel’s failure to object to the admission of the evidence

challenged above amounted to ineffective assistance of counsel.

Having determined that some of the admitted testimony was

irrelevant, it is arguable that defendant’s counsel’s

performance fell below an objective standard of reasonableness.
 -22-
Nevertheless, where there is compelling evidence of defendant’s

guilt and defendant has not shown the admission of the evidence

had a probable impact on the jury’s verdict, defendant cannot

show that but for his counsel’s failure to object, there is a

reasonable probability the result of the case would have been

different.

III. Conclusion

Based on the discussion above, we hold the improper closing

argument and the admission of the challenged evidence was not so

prejudicial, even considering the cumulative effect, to warrant

reversal of defendant’s conviction. Furthermore, we hold

defendant was not denied the effective assistance of counsel.

No prejudicial error.

Judges ELMORE and DAVIS concur.

Report per Rule 30(e).