                               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
                                         -4-
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.
