An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-202
                       NORTH CAROLINA COURT OF APPEALS
                              Filed:    2 December 2014

STATE OF NORTH CAROLINA

                                              Forsyth County
      v.
                                              No. 09 CRS 54539-41

HEATHER ROCHELLE SURRATT


      Review of order entered 7 August 2013 by Judge William Z.

Wood,    Jr.,    in   Forsyth   County     Superior    Court      based   upon   the

issuance of a writ of certiorari.             Heard in the Court of Appeals

on 11 August 2014.

      Attorney General Roy Cooper, by Assistant Attorney General
      Sherri Horner Lawrence, for the State.

      Mark Montgomery for defendant.


      ERVIN, Judge.


      Defendant Heather Rochelle Surratt seeks review of an order

denying her motion for appropriate relief following the issuance

of a writ of certiorari.            On appeal, Defendant contends that a

number     of   the   trial   court’s      findings   of   fact    lack   adequate

evidentiary      support      and   that     the   trial    court     erroneously

concluded that she was not entitled to relief from her original
                                          -2-
convictions on ineffective assistance of counsel grounds.                          After

careful   consideration        of   Defendant’s        challenges       to   the   trial

court’s order in light of the record and the applicable law, we

conclude that the trial court’s order should be affirmed.

                              I. Factual Background

    On 24 April 2009, warrants for arrest charging Defendant

with two counts of felony child abuse by sexual act, two counts

of taking indecent liberties with a child, and two counts of

first degree sex offense were issued.                        On 20 July 2009, the

Forsyth County grand jury returned bills of indictment charging

Defendant with two counts of felony child abuse by sexual act,

two counts of taking indecent liberties with a child, and two

counts    of   first    degree      sex   offense.            The    charges    against

Defendant came on for trial before Judge Ronald E. Spivey and a

jury at the 20 September 2010 criminal session of the Forsyth

County Superior Court.              As Judge Spivey was              considering     the

merits of various pretrial motions, the State made a motion in

limine    to   bar   the   introduction         of    evidence       relating   to   the

results of a prior adjudication hearing held in an abuse and

neglect proceeding that had been initiated by the Forsyth County

Department     of    Social    Services     in       which    both    Defendant,     the
                                                -3-
mother of Jenny1 and her siblings, and Mr. Surratt, the father of

Jenny       and     her    siblings,          lost     custody    of    their    children.

Although          the     issue    of        sexual    abuse     was    raised     in    the

adjudication hearing, the District Court’s decision was based on

findings of neglect, domestic violence, and drug abuse.                                   The

District      Court        did    not    find        sexual    abuse.      In    light     of

Defendant’s failure to object to the allowance of the State’s

motion in limine, Judge Spivey granted the State’s motion and

instructed         the    parties       to    refrain     from   making    any    specific

references to the adjudication hearing or its outcome.

       At    trial,       Jenny    testified          that    Defendant   had    performed

sexual acts with her in their home when Jenny was nine years

old.       Jenny eventually reported Defendant’s activities to her

brother and sister, who told their father.                              Tina Wallace, a

social      worker,       testified      for     the    State    at    Defendant’s      trial

about her interviews with Jenny and her siblings.                               As she was

being cross-examined by Defendant’s trial counsel, Ms. Wallace

made reference to the adjudication hearing:

              Q.   When was the case transferred from you
              to Miss Swaim?

              A.   The children were placed in foster care
              on February 25th.    And at that point Mrs.
              Swaim assumed responsibilities for foster
              care, and my responsibilities were primarily
       1
      “Jenny” is a pseudonym used for ease of reading and to
protect the privacy of the alleged juvenile victim.
                       -4-
-- primary to follow the          case    through
adjudication in the court.

Q.   So it was your case from October           –
basically from October to February?

A.   Well, through the adjudication.    But
the   responsibility for   the   Children’s
Services were with the foster care social
worker.

Q.   And when was the last time -- Well, let
me ask you this:     Are you currently still
involved in the case?

A.   No, I’m not.

Q.   Okay. When was the last time that you
had any involvement in the case?

A.   At the adjudication       hearing,   and   I
believe that was in --

Q.   June of last year?

A.   At the adjudication hearing -- sorry --
I don’t recall the --

            (Witness reviewing notes.)

A.   If I can just have a minute --

Q.   Well, do you recall if it was June of
last year?

A.   I’m sorry?

Q.   June of last year.

A.   I can’t be sure if that was the
adjudication date or not without looking.

Q.   Sometime last year?

A.   Yes.
                                          -5-
    At the conclusion of the trial, the jury returned verdicts

convicting Defendant of two counts of felony child abuse by

sexual    act,    two     counts   of    taking    indecent      liberties        with   a

child, and two counts of first degree sex offense with a child.

On 22 September 2010, Judge Spivey entered judgments sentencing

Defendant to a term of 250 to 309 months imprisonment based upon

Defendant’s       consolidated      convictions        for    first   degree       sexual

offense     and    to     a   consecutive       term     of     24    to    38     months

imprisonment based upon Defendant’s consolidated convictions for

felony child abuse by sexual act and taking indecent liberties

with a child.            Defendant noted an appeal to this Court from

Judge Spivey’s judgments.

    On 18 October 2011, this Court filed an opinion awarding

Defendant    a    new     trial    on   ineffective      assistance        of     counsel

grounds.      State      v.   Surratt,    216     N.C.   App.    404,      407-08,    717

S.E.2d 47, 49-50 (2011).            On 8 December 2011, the Supreme Court

entered an order allowing the State’s petition for discretionary

review, vacating our decision without prejudice to Defendant’s

right to raise her ineffective assistance of counsel claim in a

motion for appropriate relief, and remanding this case to us for

consideration       of     Defendant’s     remaining         challenges      to     Judge

Spivey’s judgments.           State v. Surratt, __ N.C. __, 732 S.E.2d

348 (2011).       On 17 January 2012, we filed an opinion on remand
                                           -6-
in   which    we     allowed    Judge       Spivey’s        judgments     to     remain

undisturbed.       State v. Surratt, 218 N.C. App. 308, 309, 721

S.E.2d 255, 255 (2012).

     On 25 April 2012, Defendant filed a motion for appropriate

relief     seeking     relief       from     Judge    Spivey’s        judgments      on

ineffective assistance of counsel grounds.                      On 30 July 2012,

Judge     Logan    Todd    Burke     entered     an    order        concluding     that

Defendant    had     failed    to    establish       that    the     performance     of

Defendant’s trial counsel was deficient and denied Defendant’s

motion.

     On 11 October 2012, Defendant filed a petition with this

Court in which she sought the issuance of a writ of certiorari

authorizing review of Judge Burke’s order.                    On 24 October 2012,

this Court entered an order remanding this case to the Forsyth

County    Superior    Court     with   instructions          that    an   evidentiary

hearing be conducted for the purpose of evaluating the merits of

Defendant’s ineffective assistance of counsel claim.

     The evidentiary hearing was held on 27 March 2013 before

the trial court.          On 7 August 2013, the trial court entered an

order denying Defendant’s motion for appropriate relief.                         On 17

October 2013, Defendant filed a petition seeking the issuance of

a writ of certiorari authorizing appellate review of the trial
                                        -7-
court’s order.      We issued the requested writ of certiorari on 14

November 2013.

                 II. Jurisdiction and Standard of Review

     Defendant’s        challenge      to   the    trial        court’s    order     is

properly before this Court pursuant to N.C. R. App. P. 21 and

N.C. Gen. Stat. § 15A-1422(c)(3).              “When considering rulings on

motions    for   appropriate      relief,     we   review       the   trial   court’s

order to determine ‘whether the findings of fact are supported

by   evidence,     whether       the    findings         of    fact    support      the

conclusions of law, and whether the conclusions of law support

the order entered by the trial court.’”                       State v. Frogge, 359

N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v.

Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)).                           “The

findings    made   by    the    trial   court      are    binding     if   they     are

supported by any competent evidence . . . and the trial court’s

ruling on facts so supported may be disturbed only when there

has been a manifest abuse of discretion . . . or when it is

based on an error of law.”              State v. Pait, 81 N.C. App. 286,

288-89, 343 S.E.2d 573, 575 (1986) (internal citations omitted).

                    III. Substantive Legal Analysis

                               A. Findings of Fact

     In her brief, Defendant challenges the sufficiency of the

evidentiary support for Finding of Fact Nos. 4, 7, 12, and 14.
                                                -8-
In each instance, the relevant question for our consideration is

whether      the     challenged         findings          of   fact     have      adequate

evidentiary        support.      As     a       general    proposition,      Defendant’s

challenges to the trial court’s findings lack merit.

                            1. Finding of Fact No. 4

       In Finding of Fact No. 4, the trial court determined that:

             [Defendant’s trial counsel] stated he did
             not observe that the jury was getting a
             false impression at the time of trial.   He
             further stated that in hindsight he would
             have asked Ms. Wallace more questions to
             include   the    rulings   by    the judge.
             [Defendant’s trial counsel] stated that he
             was not sure whether he would have wanted
             the jury to know that no sexual abuse was
             found by the court in the adjudicatory
             hearing. [Defendant’s trial counsel] stated
             that he was not sure if the jury even knew
             what an adjudication hearing meant.

After carefully reviewing the record, we hold that the trial

court’s finding that Defendant’s trial counsel “did not observe

that   the   jury     was     getting       a    false    impression”       had   adequate

record support.        Defendant’s trial counsel testified that he was

not aware of what impression the jury was receiving from Ms.

Wallace’s testimony and that he did not see any indication that

the jury was getting a false impression.                            However, the trial

court’s determination that Defendant’s trial counsel “was not

sure whether he would have wanted the jury to know that no

sexual    abuse      was    found     by        the   court    in     the   adjudicatory
                                           -9-
hearing[]” conflicts with the evidence contained in the record,

which clearly indicates that Defendant’s trial counsel wanted to

obtain the admission of evidence that the District Court had not

found sexual abuse at the adjudication hearing and that he was

disinclined to elicit evidence tending to show that the District

Court found the children to be neglected juveniles                           based on

domestic    violence       and   drug    use     in   the   household.       Finally,

Defendant’s trial counsel stated that he was unsure whether the

jurors knew what an adjudication hearing was.                    As a result, with

one exception that has no relevance to the prejudice inquiry

required    in    proceedings       evaluating        ineffective     assistance      of

counsel    claims    and     that   cannot,      for    that    reason,     support    a

finding of prejudicial error in this case, Finding of Fact No. 4

has adequate evidentiary support.

                            2. Finding of Fact No. 7

      In   Finding    of     Fact   No.    7,    the    trial    court     found    that

Defendant’s trial counsel avoided questioning Defendant about

the reason that she lost custody of her children as part of a

deliberate and reasonable strategy under which Defendant’s trial

counsel    sought    to     avoid   addressing        neglect,      drug   abuse,    and

domestic violence issues.               At a number of points, Defendant’s

trial counsel indicated that the ideal outcome would have been

to   elicit      evidence    that    the     District       Court    refrained      from
                                             -10-
finding that sexual abuse had occurred while preventing the jury

from learning about the drug use and domestic violence issues

upon which the District Court’s determination of neglect rested.

Although    the    record       contains         evidence    that    would    support   a

different       finding   as    well,       we    conclude    that     the   evidentiary

record supports the trial court’s inference that the strategy

adopted    by    Defendant’s         trial    counsel       included    preventing     the

jury    from     learning       the     reasons       that     the     District    Court

adjudicated the children to be neglected juveniles.

                           3. Finding of Fact No. 12

       In Finding of Fact No. 12, the trial court found “[t]hat

Ms. Wallace did not state any opinion as to the credibility of

the    alleged    victim       and    did    not    impermissibly       ‘bolster’      her

testimony” and that “Ms. Wallace did not claim that the alleged

victim’s story was substantiated in any way.”                          Once again, we

conclude that, to the extent that Finding of Fact No. 12 is a

factual finding instead of a legal conclusion, it has adequate

evidentiary support.

       “Our case law has long held that a witness may not vouch

for the credibility of a victim.”                     State v. Giddens, 199 N.C.

App. 115, 121, 681 S.E.2d 504, 508 (2009), aff’d, 363 N.C. 826,

689    S.E.2d     858   (2010).         As       Defendant    candidly       admits,   Ms.

Wallace’s testimony does not directly vouch for the credibility
                                               -11-
of    Jenny’s    allegations         of    sexual       abuse.        Instead,       however,

Defendant contends that the relevant portion of Ms. Wallace’s

testimony created the erroneous impression that Defendant and

Mr.   Surratt     lost      custody       of    their    children      on   the      basis    of

sexual    abuse       and   that     this       inference,       in    turn,      served      to

impermissibly bolster Jenny’s testimony.

       In our original consideration of this issue, we agreed with

Defendant’s contention.              See Surratt, 216 N.C. App. at 407-08,

717 S.E.2d at 49-50.            After additional consideration, however,

we conclude that            inferences other than the one suggested by

Defendant       can    be    drawn    from        the    relevant       portion       of     Ms.

Wallace’s testimony.            According to Ms. Wallace, Jenny and her

siblings    were       living      with        Mr.     Surratt,       rather      than     with

Defendant, at the time of the abuse and neglect investigation.

The children were removed from Defendant’s custody months before

the    adjudication         hearing       was    held.       Instead,          Ms.    Wallace

testified that the children were                       taken from Mr. Surratt and

taken to the home of a family friend before being placed in

foster care.          The fact that the children were taken from both

Defendant and Mr. Surratt before the adjudication hearing tends

to suggest that the children were removed from the custody of

their parents for reasons other than the sexual abuse with which

Ms. Surratt had been charged.                         As a result, given that the
                                             -12-
evidence permits a number of different inferences concerning the

likely      import     of    the       relevant     portion        of     Ms.    Wallace’s

testimony,     we    cannot      say    that    Finding     of     Fact    No.   12     lacks

adequate evidentiary support.                See Pait, 81 N.C. App. at 288-89,

343 S.E.2d at 575.

                            4. Finding of Fact No. 14

       In   Finding    of    Fact      No.    14,   the    trial    court       found    that

evidence     that     the   District         Court’s      neglect    adjudication        was

based on domestic violence and drug use was properly excluded

given the absence of any indication that such evidence would

have   been    helpful      to     Defendant        and    that     the    admission      of

evidence “could have been prejudicial to the defense and was

certainly not relevant to the issues to be decided by the jury.”

As an initial matter, we note that Finding of Fact No. 14,

instead of being a finding of fact, is really an explanation of

the reasoning process employed by the trial court.                          In addition,

we see no valid basis for disputing the validity of the trial

court’s logic.         As a result, we see no basis for an award of

appellate relief based upon Defendant’s challenge to Finding of

Fact No. 14.

                              B. Conclusions of Law
                                      -13-
       In the conclusions of law, the trial court concluded that

Defendant    failed    to   satisfy    either     of     the      two   prongs   of

ineffective assistance of counsel.

            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 (internal

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

867, 127 S.Ct. 164, 166 L. Ed. 2d 116 (2006).                      Assuming, for

purposes    of   discussion,   that    Defendant       did   receive     deficient

representation from her trial counsel, we are unable to conclude

that    Defendant     has   shown   the      existence       of   the    prejudice

necessary to support an award of relief from Judge Spivey’s

judgment.    State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241,

249 (1985) (stating that, “if a reviewing court can determine at

the outset that there is no reasonable probability that in the

absence of counsel’s alleged errors the result of the proceeding
                                         -14-
would have been different, then the court need not determine

whether counsel’s performance was actually deficient”).

      As we have already noted, the ultimate issue that must be

addressed in determining whether a defendant has established the

prejudice       necessary   for     an   award   of    relief    on   ineffective

assistance of counsel grounds is whether there is “a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”                   Strickland

v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L.

Ed. 2d 674, 698 (1984).             Thus, in order to obtain relief from

Judge     Spivey’s     judgment,    Defendant    would   necessarily      have    to

establish the existence of a reasonable probability that, had

her     trial    counsel    acted    differently,      the     jury   would     have

returned a verdict of not guilty rather than guilty.

      In her brief, Defendant argues that she “was prejudiced by

the   failure     of    trial   counsel    or    the   court    to    correct    the

misapprehension that [Jenny] was taken from [Defendant] because

the   District     Court    found    evidence    of    sexual   abuse.”2        More

      2
      Defendant has not argued that the admission of evidence
tending to show that the District Court’s failure to find that
sexual abuse occurred at the adjudication hearing would have
fundamentally altered the credibility calculus that the jury
necessarily was required to engage in at Defendant’s original
trial as a result of the conflicting testimony presented by
Jenny and Defendant. As a result, given that “[i]t is not the
role of the appellate courts . . . to create an appeal for an
appellant,” Viar v. N.C. Dep’t. of Transp., 359 N.C. 400, 402,
                                           -15-
specifically,        the    prejudice      argument       advanced    in     Defendant’s

brief    rests     on      the    theory      that   a   mere    reference         to    “the

adjudicatory       hearing,”        without       any    mention      of     the       actual

conclusion that the District Court reached at the conclusion of

that    hearing,     resulted       in   an    impermissible       substantiation           of

Jenny’s testimony at the actual conclusion of the hearing, and

may have raised an impermissible substantiation of the type that

resulted in awards of appellate relief in cases such as Giddens,

199 N.C. App. at 121, 681 S.E.2d at 508, and State v. Martinez,

212    N.C.   App.      661,     664,    711   S.E.2d     787,   789,      disc.        Review

denied, 365 N.C. 359, 719 S.E.2d 23 (2011).                      As the trial court

noted,     however,         Ms.    Wallace       did     not     describe         what     an

“adjudication” was or state any basis for the District Court’s

adjudication decision.             After carefully reviewing the record, we

are     unable   to      accept      Defendant’s         contention        that    a     mere

reference to an adjudication, without more, sufficed to create

an impression on the part of the jury that the District Court


610 S.E.2d 360, 361 (2005), this Court is limited to an
evaluation of the prejudice argument that has been actually
advanced in Defendant’s brief.      We will, for that reason,
refrain from addressing the extent, if any, to which the
admission of evidence that the District Court failed to find
that sexual abuse had occurred at the adjudication hearing,
standing alone, would have sufficed to create a reasonable
probability that the outcome would have been different in the
absence of the allegedly deficient performance of Defendant’s
trial counsel by making it more likely that the jury would have
believed Defendant rather than Jenny.
                                         -16-
found in the related abuse and neglect proceeding that Defendant

had sexually abused Jenny.            On the contrary, we read the record

to suggest that the jury would not have had any sort of a clear

indication of what the effect of an adjudication in a juvenile

abuse and neglect proceeding actually was.                   As a result, given

our inability to accept Defendant’s contention that the relevant

portion of Ms. Wallace’s testimony created any risk that the

jury would have believed that the District Court had previously

found that Defendant sexually abused Jenny, we cannot conclude

that   there    is    a    reasonable    probability    that      the   outcome   at

Defendant’s trial would have been different in the event that

her    trial        counsel    had      taken     action     to     correct       the

“misapprehension” that Defendant believes to have been created

by Ms. Wallace’s testimony.

                                 IV. Conclusion

       Thus, for the reasons set forth above, we conclude that

Defendant      is    not   entitled     to   relief   from   the   trial   court’s

order.      As a result, the trial court’s order should be, and

hereby is, affirmed.

       AFFIRMED.

       Judge ROBERT C. HUNTER and McCULLOUGH concur.

       Report per Rule 30(e).
