An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                             NO. COA13-1351
                     NORTH CAROLINA COURT OF APPEALS

                             Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                     Person County
                                             Nos. 12 CRS 50508-11
ISAAC WALTON MOORE



      Appeal by Defendant from Judgments entered 21 August 2013

by Judge Henry Hight in Person County Superior Court. Heard in

the Court of Appeals 19 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kimberley A. D’Arruda, for the State.

      Mark Montgomery for Defendant.


      STEPHENS, Judge.


              Factual Background and Procedural History

      On 9 April 2012, Defendant Isaac Walton Moore was indicted

on four counts of statutory rape/sex offense. The case came on

for trial on 19 August 2013 and a verdict was rendered the

following    day.    The   evidence     at   trial    tended    to   show    the

following:
                                       -2-
       Between August of 2010 and November of 2011 Defendant lived

with    his   wife   and   stepdaughter,      Audrey.1    Audrey   was   between

thirteen and fourteen years old at the time, and Defendant was

between fifty-two and fifty-three years old. Though Audrey and

Defendant     sometimes    had   a   good    relationship,     Defendant    would

often “bother” her. According to Audrey, this involved going

into    her   bedroom,     sitting    on    her   bed,   and   “touching”   her.

Sometimes Defendant would rub Audrey’s shoulders and back. On

two separate occasions, Defendant started “going down my back

and touching me between my legs and putting his hands underneath

my skirt.” If Audrey tried to move away, Defendant moved closer.

Defendant     eventually    removed    Audrey’s     shirt,     “played   with   my

pants,” and put his hands between Audrey’s legs. Defendant then

put his mouth on Audrey’s “private parts,” put his penis inside

her vagina, and put “fake penises” inside her vagina.

       Defendant told Audrey not to tell her mother about what had

happened. He also bought her gifts in an attempt to procure sex.

Audrey refused the offer, saying, “No. Not ever again, and I

just ran in my room.”

       In an attempt to deter Defendant’s advances, Audrey began

to neglect her hygiene. This became an issue with her mother,

1
    A pseudonym is used to protect the juvenile’s identity.
                                           -3-
and,    shortly       after    Defendant       offered      Audrey    gifts    for    sex,

Audrey and her mother had an argument about Audrey’s hygiene. In

order to explain her failure to keep clean, Audrey revealed what

Defendant had been doing. The mother became upset and called the

police.

       This     was     the    second     time       that    Audrey     had     reported

Defendant’s actions. The first time was in 2008 in Virginia. In

that instance, authorities were unable to find any evidence to

support Audrey’s statement, and Audrey became worried that she

would    not    be     believed.     As    a    result,      Audrey    retracted       her

statement against Defendant.               Following Audrey’s           argument with

her    mother     and    the    subsequent       revelation      about    Defendant’s

actions, however, Audrey stated that her first accusation, made

in Virginia, had been truthful.

       After revealing what Defendant had done, Audrey met with

Sergeant Gail Shull of the Roxboro Police Department’s criminal

investigation         unit.     According       to    Sergeant       Shull,     Audrey’s

statements      during        this   meeting      were      “consistent       with”    her

testimony at trial. Shortly after meeting with Audrey, Sergeant

Shull contacted Defendant. He agreed to meet with Sergeant Shull

to discuss the          allegations and, while doing so,                  admitted to

having intercourse with Audrey on at least two occasions.
                                         -4-
       At the conclusion of the trial, Defendant was found guilty

of two counts of statutory rape and two counts of statutory

sexual offense. He was sentenced to 240 to 297 months in prison

for each conviction, with credit for 509 days served in pre-

trial       confinement.   Defendant     gave     notice   of   appeal      in   open

court.

                                    Discussion

       On appeal, Defendant argues that the trial court (1) erred

or,    in    the   alternative,   committed       plain    error    by   repeatedly

referring to Audrey as “the victim” in its jury charge and (2)

plainly erred in allowing Sergeant Shull to testify that her

pre-trial discussion with Audrey was “consistent with” Audrey’s

testimony at trial. Alternatively, Defendant asserts that his

trial       counsel’s   failure   to    address    these    issues       constituted

ineffective assistance of counsel (“IAC”). We find no error on

the trial court’s use of the phrase “the victim,” no prejudicial

error as to the admission of Sergeant Shull’s testimony, and

overrule Defendant’s IAC argument.

       I. Use of the Phrase “the Victim”

       In its charge to the jury, the trial court used the phrase

“the victim” multiple times to describe the crimes of statutory

rape    and    statutory   sexual      offense.    Defendant       admits   that   he
                                        -5-
failed to object to the court’s use of that phrase at trial.

Nonetheless, Defendant argues as a preliminary matter that the

issue is reviewable de novo on appeal because it affects the

trial court’s “statutory duty not to set out only one party’s

contention     or   to   express   an    opinion    on   the   evidence.”     We

disagree.

      As a general rule, a party must present a timely objection

to the trial court in order to preserve an issue for appellate

review. N.C.R. App. P. 10(a)(1).

             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 . . .
             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). Plain error arises when the error is

“so   basic,   so   prejudicial,    so    lacking   in   its   elements     that

justice cannot have been done . . . .” State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal

quotation marks omitted). “Under the plain error rule, [the]

defendant    must   convince   [the     appellate   court]     not   only   that

there was error, but that absent the error, the jury probably

would have reached a different result.” State v. Jordan, 333

N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
                                        -6-
      This   Court    has    previously   held      that   “the    trial   court’s

reference to the prosecuting witness as ‘the victim’ [is not

reviewed]    for     anything   other     than   plain     error     where   [the]

defendant failed to object and properly preserve the issue for

review.” State v. Phillips, __ N.C. App. __, __, 742 S.E.2d 338,

341 (2013).     We are bound by that decision. In re Civil Penalty,

324   N.C.    373,    384,    379   S.E.2d    30,     37   (1989).    Therefore,

Defendant’s argument as it pertains to the standard of review is

overruled, and we proceed with an analysis for plain error.

      Defendant argues that the trial court’s use of the phrase

“the victim” constitutes plain error because

             the       [trial]      court’s      repeated
             characterization of [Audrey] as “the victim”
             subtly and inadvertently yet impermissibly
             suggested that, in the trial court’s view,
             the [S]tate had met its burden of proving
             that a crime was committed. This inadvertent
             bolstering of [Audrey’s] credibility was a
             fundamental error, equivalent to designating
             the defendant as “the perpetrator” and had a
             probable impact on the verdict.

For support, Defendant cites N.C. Gen. Stat. §§ 15A-1222, -1232.

Both sections forbid a trial judge from expressing an opinion on

the evidence in the presence of the jury. N.C. Gen. Stat. §§

15A-1222, -1232 (2013). Defendant also cites a number of cases

from other states specifically holding that the use of the term
                                         -7-
“the victim” constitutes an impermissible judicial expression of

opinion. In this case, Defendant’s argument lacks merit.

    Our courts have long held that the use of the phrase “the

victim”    in    the   trial   court’s      pattern       jury   charge   does    not

constitute prejudicial error. See State v. Jones, __ N.C. App.

__, __, 752 S.E.2d 212, 214–15                 (2013) (collecting cases and

holding that “the trial court did not commit plain error when it

used the term ‘victim’ in its instruction to the jury on the

offenses of first- and second-degree rape”) (citations omitted),

disc. review denied, __ N.C. __, __ S.E.2d __ (2014), available

at 2014 WL 939074; see also State v. Jackson, 202 N.C. App. 564,

568–69,   688    S.E.2d   766,     769   (2010)      (holding     that    the   trial

court’s use of the word “victim” in its jury instruction was not

an improper expression of judicial opinion on the offense of

taking    indecent     liberties     with      a   child   and   statutory      rape)

(citations omitted). Though we have recently held that a trial

court    erred    by   using   the   phrase        “the    victim”   in   its    jury

instructions, State v. Walston, __ N.C. App. __, __, 747 S.E.2d

720, 727–28 (2013) (finding error when the issue of “whether

sexual offenses occurred was a disputed fact for the jury to

resolve”), disc. review allowed, __ N.C. __, 753 S.E.2d 666

(2014), Defendant concedes that Walston is distinct from other
                                  -8-
cases in which we have held that the use of the term “the

victim” is not error. See, e.g., State v. Boyette, __ N.C. App.

__, 735 S.E.2d 371 (2012).        Defendant also     concedes    that the

trial court’s use of the phrase “the victim” comports with the

North Carolina Pattern Jury Instructions and fails to provide

any North Carolina cases supporting a departure from the case

law discussed above.

     Moreover, we note that Defendant admitted to two acts of

intercourse with Audrey. Such acts constitute crimes in North

Carolina. See, e.g., N.C. Gen. Stat. § 14-27.7A(a) (“A defendant

is guilty . . . [of statutory rape under this section] if the

defendant engages in vaginal intercourse or a sexual act with

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

is   at   least   six   years   older   than   the   person     . . . .”).

Therefore, even accepting the validity of Defendant’s argument

as evidenced by his citation to the Connecticut Supreme Court’s

opinion in State v. Cortes, “references to the complainant as

the ‘victim’ [are] inappropriate where the very commission of a

crime is at issue.” 276 Conn. 241, 249 n.4, 885 A.2d 153, 158

n.4 (2005) (citations omitted; emphasis added). Here, whether

Defendant committed some crime against Audrey was not at issue.

Thus, under any measure, the trial court did not err, much less
                                          -9-
plainly    err,    in      referring       to    Audrey        as     “the       victim.”

Accordingly, Defendant’s first argument is overruled.

    II. Sergeant Shull’s Testimony

    Second, Defendant contends that the trial court committed

plain error in allowing Sergeant Shull to testify that Audrey’s

unsworn out-of-court statements regarding the two incidents were

“consistent     with”     Audrey’s    testimony        at    trial.        For   support,

Defendant asserts that Sergeant Shull’s testimony constituted an

improper and prejudicial statement of opinion by a lay witness

pursuant   to   State     v.    Norman,    76   N.C.    App.        623,    626–27,     334

S.E.2d 247, 249–50 (ordering a new trial when the issue was

properly   preserved      for    appellate      review       on     grounds      that   the

second witness should have been asked, “at the least,” to recall

the substance of the first witness’s pre-trial statements before

giving    his   opinion    as    to   whether    the        first    witness’s      trial

testimony was consistent), disc. rev. denied, 315 N.C. 188, 337

S.E.2d 863 (1985) and State v. Ramey, 318 N.C. 457, 467–73, 349

S.E.2d 566, 572–76 (1986) (holding that the witness’s testimony

that the victim had never told him anything inconsistent was

inadmissible, but did not rise to the level of prejudicial error

and, therefore, concluding that the defendant “received a fair
                                          -10-
trial free from prejudicial error”). Again, we conclude that

Defendant’s argument lacks merit.

        Defendant admittedly failed to object to Sergeant Shull’s

testimony at trial. Therefore, as discussed above, the issue is

reviewable only for plain error. Given the plain error analysis

required in this case and pursuant to the decision upon which

Defendant himself relies, we need not delve into a discussion of

the admissibility of Sergeant Shull’s testimony. The Norman case

was decided on a preserved issue and, thus, is not applicable to

the plain error analysis we must                     use here. Furthermore, the

Ramey   case     concluded       that,    while      the     trial     court   erred   in

admitting      the    testimony,        such    error      was   not    sufficient     to

constitute plain error. Thus, even if Sergeant Shull’s testimony

was    inadmissible         in   this   case,    a     new   trial     could    only   be

required    if       that    testimony    was     so    prejudicial       as   to   have

probably affected the outcome of the trial. We hold that it was

not.

       Plain error is error that reaches to the core of the case

and casts significant doubt on the verdict rendered and the

justness of that decision. Here, Sergeant Shull’s testimony that

Audrey’s pre-trial statements were                   “consistent with”         Audrey’s

trial testimony did not carry such an impact as to prejudice
                                        -11-
Defendant    in    that    way.        Audrey’s     testimony    is     internally

consistent and provides sufficient detail regarding the nature

of   Defendant’s     actions      to    justify     the    jury’s     verdict.     In

addition,    Sergeant     Shull    offered        uncontested   testimony        that

Defendant admitted to having sex with Audrey on at least two

occasions. Defendant failed to present any evidence of his own.

     Thus, even if the jury had not heard that Audrey’s original

statements to Sergeant Shull were consistent with her testimony

at trial, it is inconceivable that it would have come to a

different conclusion. Therefore, to the extent Sergeant Shull’s

testimony about her pre-trial discussion with Audrey may have

been inadmissible, we hold that such error was not so basic and

so prejudicial that the trial court should have stricken it ex

mero motu. The challenged testimony simply had no effect on the

jury’s   verdict.    Accordingly,         Defendant’s      second     argument     is

overruled.

     III. Ineffective Assistance of Counsel

     Lastly, Defendant argues in the alternative that he was

denied effective assistance of counsel on both of the issues

described    above   because      of     his   trial      counsel’s    failure     to

object. We disagree.
                                          -12-
       “IAC claims brought on direct review will be decided on the

merits     when     the     cold        record     reveals      that       no     further

investigation is required . . . .” State v. Fair, 354 N.C. 131,

166,    557    S.E.2d     500,    524    (2001)    (citations        omitted),      cert.

denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).

               To successfully assert an [IAC] claim, [the]
               defendant must satisfy a two-prong test. See
               Strickland v. Washington, 466 U.S. 668, 687,
               . . . 80 L. Ed. 2d 674, 693 (1984). First he
               must show that counsel’s performance fell
               below     an    objective     standard    of
               reasonableness. Second, once [the] defendant
               satisfies the first prong, he must show that
               the error committed was so serious that a
               reasonable probability exists that the trial
               result would have been different.

State    v.    Harris,    __     N.C.    App.    __,     __,   729   S.E.2d       99,    106

(certain citations omitted), disc. review denied, 366 N.C. 409,

735     S.E.2d    339     (2012).       “‘A     reasonable      probability         is     a

probability sufficient to undermine confidence in the outcome.’”

State v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010)

(citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).

       We have already determined that the trial court’s use of

the    words     “the    victim”    in    its     jury    charge     was    not    error.

Therefore, Defendant’s trial counsel did not act unreasonably in

not objecting to the court’s charge because the court’s use of

the     phrase     “the    victim”       was     not     erroneous.        Accordingly,
                                            -13-
Defendant’s       ineffective         assistance           of    counsel     argument        is

overruled as it pertains to the trial court’s use of the phrase

“the victim.”

       On the issue of Sergeant Shull’s testimony, we failed to

address Defendant’s argument on the merits. Instead, we held

that it was not plain error for the trial court to decline to

strike Sergeant Shull’s testimony because that testimony would

not have affected the result. On appeal, Defendant argues that

we may not apply our decision under the plain error standard to

our    decision       regarding      IAC     because        the     two    standards      are

different       and   “[t]his       Court    is     not    at    liberty    to    impose     a

standard     stricter        than   Strickland.”          This    argument    is    without

merit.

       In order to show ineffective assistance of counsel, the

complaining party must show a “reasonable probability” that the

result would have been different. Harris, __ N.C. App. at __,

729    S.E.2d    at    106    (emphasis          added).    As    discussed      above,      we

believe it is unlikely that the result of the trial would have

been   different       if    Defendant’s          trial    counsel    had    objected        to

Sergeant Shull’s testimony and that testimony had been stricken.

For    the   same     reasons,       we     do    not     believe    that    there      is    a

“reasonable       probability”         that       the      result    would       have   been
                                    -14-
different     had   the   testimony        been   stricken.    Therefore,

Defendant’s   IAC   argument   is   overruled.    Defendant   had   a   fair

trial, free of prejudicial error.

    NO ERROR in part; NO PREJUDICIAL ERROR in part.

    Judges GEER and ERVIN concur.

    Report per Rule 30(e).
