               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-52

                              Filed: 1 November 2016

Mecklenburg County, Nos. 13 CRS 226486–89

STATE OF NORTH CAROLINA

             v.

STEPHEN LAMONT WARD


      Appeal by defendant from judgment entered 29 April 2015 by Judge Robert T.

Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals 9

August 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for
      the State.

      Tarlton Law PLLC, by Raymond C. Tarlton, for defendant-appellant.


      BRYANT, Judge.


      Where defendant and defense counsel reached an impasse as to whether to

cross-examine the State’s witness on an issue of sample contamination, we affirm the

trial court’s ruling that it would be improper for the attorney to pursue a frivolous

line of questioning. And where, as defendant concedes, our laws do not support a jury

instruction for mistake of age or consent on facts such as these, we overrule

defendant’s argument.

      On 15 July 2013, a Mecklenburg County grand jury indicted defendant

Stephen Lamont Ward on two counts of statutory rape of a person thirteen, fourteen,
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or fifteen years old and two counts of taking indecent liberties with a child. These

matters were brought to trial during the 28 April 2015 Criminal Session of

Mecklenburg County Superior Court, the Honorable Robert T. Sumner, Judge

presiding.

       At trial, the evidence tended to show that in June 2013, fourteen-year-old

Rebecca1,2 a Mecklenburg County resident, received a message via the social

networking site Facebook inviting her to apply for a modeling opportunity with

Fourth Ward Foto. At trial, Rebecca identified defendant as the person in the profile

picture for the webpage. Rebecca corresponded with defendant by messages sent via

Facebook and by phone for two days, and then agreed to meet him. On 28 June 2013,

after her stepfather dropped her off at a library, Rebecca walked to meet defendant

at a local pizzeria.

                 Q.      What did you think you were meeting him to do?

                 A.      Just take pictures, you know, what models do, just
                         things like that. Like, you know, face shots and all
                         that kind of stuff.

       Rebecca got into defendant’s black Durango SUV and traveled with him to a

motel on Nations Ford Road. Defendant had not previously told Rebecca he was

taking her to a motel. Rebecca testified that en route, defendant stopped at a gas




       1   Rebecca was sixteen at the time of trial.
       2   A pseudonym has been used to protect the juvenile’s identity.

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station and purchased two cigars and a grape juice drink. Once in his motel room,

Rebecca and defendant talked while she drank grape juice, which defendant later told

her contained vodka. Defendant undressed Rebecca, kissed and fondled her body,

then performed cunnilingus and twice engaged her in sexual intercourse.

Afterwards, defendant directed her to pose in various positions for photographs.

Rebecca was in defendant’s motel room for three to four hours. During that time, her

parents’ numerous calls to her cellphone went unanswered.

      When defendant returned Rebecca to the library, she contacted her parents

and, over the course of the night, eventually disclosed where she had been. The next

day, Rebecca directed her parents to the motel where defendant had taken her, and

there, Rebecca’s mother and step father confronted defendant. Rebecca was then

taken to Novant Health, a hospital, and her parents reported to law enforcement

officers in the Charlotte Mecklenburg County Police Department that their daughter

had been kidnapped and sexually assaulted. Officer David Wright was among the

officers that arrived at the motel to investigate.

      Officer Wright testified that a search warrant was issued for the room to which

Rebecca was taken, as well as for the black Durango SUV in the motel parking lot.

In the vehicle, officers found a vehicle registration card, a visa card with defendant’s

picture on it, and a bottle of Smirnoff Vodka. It was also confirmed that the room

Rebecca had been taken to had been rented by defendant.



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      Following his arrest, defendant was transported to the Charlotte Mecklenburg

Police Department. There, he waived his Miranda rights and agreed to speak with

Officer Wright. Defendant gave his date of birth as 12 October 1972, making him

forty years old at the time of his arrest. Defendant stated that he made contact with

Rebecca on 28 June 2016 by “face messaging” her through Facebook for the purpose

of making arrangements to take her photograph.          He met Rebecca at a local

restaurant and then drove her to the motel on Nations Ford Road. Defendant stated

that Rebecca agreed to take nude pictures for him, and he took fifteen nude or

partially nude photographs. But after the confrontation with Rebecca’s mother and

step-father, he deleted the photos. Defendant denied having sex with Rebecca. After

the interview, defendant submitted to a cheek scraping for the collection of his DNA.

      At trial, a certified Sexual Assault Nurse Examiner (SANE) with Novant

Health testified about her examination of Rebecca. On 29 June 2013, the nurse

collected specimen samples from Rebecca for a rape kit and recorded Rebecca’s

medical history. In testimony admitted for the purpose of corroboration, the SANE

nurse testified to the statement Rebecca gave in her medical history regarding the

events which brought her to the motel room on 28 June and the conduct that occurred

inside. The testimony was substantially similar to Rebecca’s trial testimony.

      The last witness the State called was a DNA analyst working with the

Charlotte Mecklenburg Police Crime Lab. Prior to her testimony, the trial court



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heard ex parte arguments, out of the presence of the jury and the prosecutor, from

defendant and his trial counsel to resolve an impasse regarding a proposed line of

questioning intended for cross-examination.         The trial court ruled in favor of

defendant’s trial counsel, and the trial resumed.

      DNA analyst Aby Moeykens, with the Charlotte Mecklenburg Police Crime

Lab, had been a DNA analyst for twelve years and after stating her credentials was

accepted without objection as an expert in DNA analysis and forensic DNA analysis.

Moeykens testified that she “was asked to analyze a buccal standard from [defendant]

and . . . [a] buccal standard from [Rebecca], vaginal swabs, external genitalia swabs,

crotch with stains from the underpants, . . . [as well as] fingernail swabs.” “[T]he

DNA profile obtained from [defendant] matched the major DNA profile obtained from

the vaginal swabs.” Moeykins testified that the probability of selecting another

individual who would match the DNA profile was “approximately 1 in 2.54

quadrillion.” Moeykens further testified that defendant’s DNA profile matched the

DNA profile obtained from sperm cell fractions taken from Rebecca’s external

genitalia, as well as her underwear.

      Defendant did not present any evidence.

      The jury returned guilty verdicts against defendant as charged: two counts of

statutory rape; and two counts of indecent liberties with a child. In accordance with

the jury verdicts, the trial court entered a consolidated judgment against defendant



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on the charges of one count of statutory rape and one count of indecent liberties with

a child, imposing an active sentence of 240 to 348 months and a second consolidated

judgment reflecting the remaining counts of those charges, imposing a sentence of

150 to 240 months, to be served consecutively. Defendant appeals.

                   _____________________________________________

      On appeal, defendant raises two issues: whether the trial court erred by (I)

settling an impasse between defendant and defense counsel in favor of defense

counsel; and (II) denying defendant’s request for an instruction on mistake of age as

well as consent.

                                           I

      Defendant first argues the trial court erred by ruling that defense counsel’s

trial strategy determined whether a witness would be cross-examined despite

defendant’s objection to counsel’s strategy. Defendant contends that the trial court’s

ruling violated his Sixth Amendment right to assistance of counsel and on the

evidence presented before the trial court, entitles defendant to a new trial. We

disagree.

                                 Standard of review

      We note defendant contends that our standard of review is de novo, while the

State seems to argue the standard is abuse of discretion. As defendant raises a

constitutional issue, we will review the matter de novo. State v. Whitaker, 201 N.C.



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App. 190, 192, 689 S.E.2d 395, 396 (2009) (“The standard of review for questions

concerning constitutional rights is de novo.” (citation and quotation marks omitted)),

aff'd, 364 N.C. 404, 700 S.E.2d 215 (2010).

                                         Analysis

       In our review of the issue, we find guidance from our Supreme Court in State

v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991). At trial, the defendant and his trial

counsel reached an impasse during jury voir dire. Namely, the defendant wanted to

accept a juror that counsel recommended be excused. Ali, 329 N.C. at 402, 407 S.E.2d

at 188–89. Out of the presence of the jury and for the record, trial counsel noted his

exception to the juror, but speaking for the defendant, accepted the juror. Id. at 402,

407 S.E.2d at 188–89. Following his conviction, the defendant appealed, arguing that

his trial counsel should have made the final determination as to whether the juror

would be accepted, and that trial counsel’s failure to make that determination

deprived the defendant of his Sixth Amendment right to counsel. Id. Our Supreme

Court noted that “[t]he attorney-client relationship ‘rests on principles of agency, and

not guardian and ward.’ ” Id. at 403, 407 S.E.2d at 189 (quoting State v. Barley, 240

N.C. 253, 255, 81 S.E.2d 772, 773 (1954)). The Ali Court acknowledged the prior

holding of this Court while clarifying the duty of an attorney who reaches an impasse

with the client, as to tactical trial strategy.

              [T]actical decisions, such as which witnesses to call,
              “whether and how to conduct cross-examinations, what


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             jurors to accept or strike, and what trial motions to make
             are ultimately the province of the lawyer . . . .” State v.
             Luker, 65 N.C. App. 644, 649, 310 S.E.2d 63, 66 (1983),
             aff'd as to error, rev'd as to harmlessness of error, 311 N.C.
             301, 316 S.E.2d 309 (1984). However, when counsel and a
             fully informed criminal defendant client reach an absolute
             impasse as to such tactical decisions, the client's wishes
             must control; this rule is in accord with the principal-agent
             nature of the attorney-client relationship.

Id. at 404, 407 S.E.2d at 189 (alteration in original). In such a conflict, the Ali Court

recommended that the attorney make a record of the circumstances, her advice to the

defendant, her reasons for the advice, the defendant’s decision, and the conclusion

reached. Id.; accord State v. Floyd, 238 N.C. App. 110, 125-26, 766 S.E.2d 361, 372–

73 (2014) (holding the defendant was entitled to a new trial where an impasse was

reached between the defendant and his trial counsel as to the extent of cross-

examination, the trial court failed to inquire into the nature of the impasse or rule on

the dispute, and on appeal, the State failed to assert that the violation was harmless

error), review allowed, writ allowed, ___ N.C. ___, 771 S.E.2d 295 (2015).

      Given this procedure, we note that this Court has held that despite a conflict,

trial counsel is not compelled to pursue strategy or tactical decisions based on

frivolous or unsupported claims.

             [The] [d]efendant in this case sought to have his attorneys
             follow instructions to present claims that they felt “ha[d]
             no merit.” Thus, the impasse was not over “tactical
             decisions,” but rather over whether [the] Defendant could
             compel his counsel to file frivolous motions and assert
             theories that lacked any basis in fact. Nothing in Ali or our


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             Sixth Amendment jurisprudence requires an attorney to
             comply with a client's request to assert frivolous or
             unsupported claims. In fact, to do so would be a violation
             of an attorney's professional ethics: “A lawyer shall not
             bring or defend a proceeding, or assert or controvert an
             issue therein, unless there is a basis in law or fact for doing
             so that is not frivolous . . . [.]” N.C. St. B. Rev. R. Prof.
             Conduct 3.1 (emphasis added).

State v. Jones, 220 N.C. App. 392, 395, 725 S.E.2d 415, 417 (2012) (alteration in

original).

       Here, we consider whether defendant’s direction to his trial counsel to cross-

examine the State’s DNA expert on the extent of a mold contamination in the testing

laboratory amounted to a tactical decision or a frivolous act.

             [Defense Counsel]: What the issue is in this case, the State
             is going to be calling a DNA expert on this matter and that
             expert's going to be testifying to the results of some
             laboratory tests that were performed in the Charlotte
             Mecklenburg Police Department laboratory. As part of the
             Discovery, the State disclosed that there had been
             contamination of a freezer in the laboratory with mold and
             that mold was found in the vicinity of and apparently on
             some DNA samples. They took quality control steps to
             determine whether there was actual contamination and
             they did not find any and they informed the effected [sic]
             parties, the defense counsel, of the contamination issue.

             ...

             Normally saying that there could be errors is not relevant
             unless you have evidence of errors. Now, in this case
             something did happen, but it is my concern that there is
             nothing from what I see of the DNA electropherogram, the
             actual results, to indicate that there was any damage in
             this case. And by the way, if DNA is degraded there is a


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              characteristic pattern that appears, it's called a ski slope,
              and [I] did not see that. The larger pieces of DNA are going
              to get damaged first, we don't see that in this case. So it's
              not just that the results were there, the normal signs of
              degradation aren't even there. . . .

              ...

              THE COURT: . . . Now, does your client care to be heard
              with regard to this?

              THE DEFENDANT: Your Honor, my question was
              basically surrounding the fact that they had to prove their
              case beyond a reasonable doubt and I feel like if there is
              any doubt surrounding the DNA then that should be heard
              by the jury. . . .

       Denying defendant’s request to compel his trial counsel to examine the State’s

DNA expert regarding the contamination reported in the lab’s freezer, the trial court

made the following remark: “[Defense counsel] has an obligation not to -- as he

indicated, I think I've alluded to and I certainly agree with him, that raising an issue

that is not an issue just when you know it's not an issue is improper.” This reasoning

and ruling by the trial court in the instant case is in line with the Court’s reasoning

in Jones. 220 N.C. App. at 395, 725 S.E.2d at 417 (“Nothing in Ali or our Sixth

Amendment jurisprudence requires an attorney to comply with a client's request to

assert frivolous or unsupported claims. In fact, to do so would be a violation of an

attorney's professional ethics[.]”).

       On the record before us, it appears that the proposed challenge to the DNA

analysis performed by the Charlotte Mecklenburg Police Crime Lab on the basis of


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contamination was not a challenge rooted in relevant facts. Rather, the matter was

properly considered one which is governed by rules of professional ethics for

attorneys. The trial court properly denied defendant’s request to compel trial counsel

to pursue a line of questioning to elicit irrelevant facts.    See id.   Accordingly,

defendant’s argument is overruled.

      Moreover, even were we to presume the trial court erred by failing to instruct

defense counsel to cross-examine the State’s forensic DNA expert in the manner

directed by defendant, such error would be harmless in light of the other

overwhelming evidence of defendant’s guilt.

      “A violation of the defendant's rights under the Constitution of the United

States is prejudicial unless the appellate court finds that it was harmless beyond a

reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable

doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2015). “This

Court has previously applied harmless error analysis to constitutional errors arising

under Article I, Section 24[, Right of jury trial in criminal cases].” State v. Bunch,

363 N.C. 841, 845, 689 S.E.2d 866, 869 (2010). “On a general level, an error is

harmless beyond a reasonable doubt if it did not contribute to the defendant's

conviction. The presence of overwhelming evidence of guilt may render error of

constitutional dimension harmless beyond a reasonable doubt.” Id. at 845–46, 689

S.E.2d at 869 (citation, quotation marks, and brackets omitted).



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      In its brief to this Court, the State argues there was overwhelming evidence of

defendant’s guilt on the charges of indecent liberties and statutory rape sufficient to

render harmless beyond a reasonable doubt any potential violation of defendant’s

right to counsel. We agree.

      The evidence presented at trial included defendant’s handwritten statement to

a Charlotte Mecklenburg Police Officer admitting that he was born in 1972; that, on

28 June 2016, he met Rebecca at a local restaurant, then drove her to a motel on

Nations Ford Road; and that he took at least fifteen nude and partially nude pictures

of Rebecca. Rebecca was born in 1998 and was fourteen years of age on 28 June 2016.

Her testimony, describing how she met defendant and many of the events occurring

on 28 June, was consistent with defendant’s statement.          Additionally, Rebecca

testified that defendant provided her with grape juice mixed with vodka. A bottle of

Smirnoff Vodka was recovered from defendant’s black Durango SUV, parked in the

motel parking lot on Nations Ford Road. Rebecca testified that after providing her

with the grape juice and vodka, defendant undressed her, kissed and fondled her

body, performed cunnilingus, and had sexual intercourse with her two times. Rebecca

testified that defendant told her he ejaculated during sexual intercourse.

             Q.     Did you -- when you were 14, did you know what
                    ejaculated meant?

             A.     No.

             ...


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             Q.    Did you use that green washcloth to wash yourself?

             A.    I did.

             Q.    Did you see anything on the washcloth?

             A.    It was like a little bit of blood and some white,
                   whitish clearish stuff on there.

Rebecca testified that she was in defendant’s motel room for three to four hours. The

next day, Rebecca was taken to Novant Health where her clothes were collected and

specimen swabs were taken from her body. The SANE nurse, who collected evidence

from Rebecca took a history from Rebecca during the examination.          The nurse

testified to the history Rebecca provided detailing the events which had occurred,

including two separate acts of sexual intercourse, cunnilingus, and having nude

photographs taken. The nurse corroborated that Rebecca’s underwear were collected

and that the nurse took external and internal swabs of Rebecca’s vagina for the rape

kit.   A criminalist with the Charlotte Mecklenburg Police Department testified

extensively regarding the scientific testing she performed on physical evidence

collected in the rape kit from which she found the presence of sperm and saliva on

vaginal swabs taken from Rebecca’s body.

       The DNA analyst compared the DNA profile from Rebecca to defendant's DNA

profile and determined that the DNA profile obtained from defendant matched the

DNA profile obtained from the vaginal swabs, as well as external genitalia swabs,



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                                   Opinion of the Court



taken from Rebecca. The analyst further testified that the statistical calculation on

the match from the vaginal swab and from the external genitalia swabs was the

same—1 in 2.54 quadrillion.

      We note that even if on cross-examination of the forensic DNA expert, defense

counsel had challenged the integrity of the DNA sample on the basis of

contamination, the DNA evidence would have still been admissible, as such

challenges go to the weight, not the admissibility, of the evidence. See State v.

Pennington, 327 N.C. 89, 101, 393 S.E.2d 847, 854 (1990) (“The admissibility of any

such [DNA] evidence remains subject to attack. . . . [T]raditional challenges to the

admissibility of evidence such as the contamination of the sample . . . may be

presented. These issues relate to the weight of the evidence.”). Defendant did not

present any evidence that the DNA samples tested in his case were contaminated.

      Even presuming the trial court’s failure to resolve the impasse between trial

counsel and defendant in defendant’s favor amounted to a violation of defendant’s

Sixth Amendment right to counsel, the other overwhelming evidence of defendant’s

guilt on the two counts of statutory rape of a person thirteen, fourteen, or fifteen years

old and two counts of taking indecent liberties with a child would render even the

constitutional error harmless beyond a reasonable doubt. See Bunch, 363 N.C. at

845–46, 689 S.E.2d at 869 (“[T]he presence of overwhelming evidence of guilt may

render error of constitutional dimension harmless beyond a reasonable doubt.”



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(citation and quotation marks omitted)).           Accordingly, defendant’s argument is

overruled.

                                            II

      Next, defendant argues that the trial court erred by denying his request for

instructions on “mistake of age” and consent as defenses. Despite this argument,

defendant acknowledges the precedent of this Court to the contrary, see State v.

Anthony, 351 N.C. 611, 616, 528 S.E.2d 321, 323 (2000) (“Where the age of the victim

is an essential element of the crime of rape, as in N.C.G.S. § 14–27.2(a)(1) and its

predecessor statute N.C.G.S. § 14–21, the result is a strict liability offense . . . [:]

Consent is no defense[.]” (citation and quotation marks omitted)); State v. Browning,

177 N.C. App. 487, 491–92, 629 S.E.2d 299, 303 (2006) (“Statutory rape, under

N.C.G.S. § 14–27.7A is a strict liability crime. Criminal mens rea is not an element of

statutory rape. . . . [A] mistake of fact is no defense to statutory rape.” (citations and

quotation marks omitted)); State v. Sines, 158 N.C. App. 79, 86, 579 S.E.2d 895, 900

(2003) (“The defendant was not required to have knowledge that the victim was under

the age of consent in order to be convicted of attempted rape of a child.” (citation

omitted)). Defendant submits this argument simply to preserve the argument should

the law allow for such defenses in the future. Accordingly, we do not further consider

this argument.

      NO ERROR.



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Judges TYSON and INMAN concur.




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