              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-626

                                Filed: 2 August 2016

Onslow County, No. 13 CRS 54921

STATE OF NORTH CAROLINA

             v.

CURTIS RAY GATES, JR., Defendant.


      Appeal by Defendant from judgment and commitment entered 18 December

2014 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the

Court of Appeals 16 December 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon,
      for the State.

      Paul F. Herzog, for Defendant-appellant.

      INMAN, Judge.


      Curtis Ray Gates, Jr. (“Defendant”) appeals his convictions for second-degree

sex offense and breaking or entering. We vacate and remand for entry of judgment

convicting him of attempted sexual offense and breaking or entering because the

indictment charging Defendant alleged only an attempted and not a completed sex

offense. We also overrule Defendant’s claim that he received ineffective assistance of

counsel.

                                  I. Background

      The State’s evidence at trial was as follows:
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      Around 7:30 a.m. on 10 May 2013, KL1 was sexually assaulted by a man in her

home. She had first met her attacker about two months earlier, when he knocked on

the door of her residence and asked if a “Corporal So-and-so” lived there. KL told the

man “no,” and he left. KL did not see the man again until the attack on 10 May 2013.

      The morning she was attacked, KL’s husband had left their home for work

before 5:00 a.m. and did not lock the exterior doors. KL had not heard her husband

leave, and thought it was her husband’s footsteps she heard when her attacker

entered the house. When she awoke more fully, she saw a man standing in the

doorway of her bedroom wearing a green T-shirt, dark pants, and gray shoes. The

man asked KL where her husband was and she responded “at work.” KL then asked

the man, “why are you here?” The man responded that he wanted to have sex with

her. When she tried to get up from her bed, the man pushed her back down. He told

her to be quiet and that he did not want to hurt her.

      KL testified that she was afraid for herself and for her children, who were

elsewhere in the house, so she did not attempt to resist. KL told the man she was

sick, attempting to dissuade him, but the man did not stop. He removed her bra and

put on a condom. He tried to penetrate her vaginally but was not successful. He then

removed the condom and began to put a blanket over KL’s face but stopped when she



      1   We use initials for the victim KL to protect her privacy.

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begged him not to. He forced KL to perform fellatio on him. After about two minutes,

the man ejaculated and demanded that KL rinse out her mouth. KL spit some of the

semen out, but tried to retain some behind in the back of her throat. The man then

told KL he was sorry, asked for a hug, hugged KL, and walked out the back door of

the home.

      KL then called her husband, told him what had happened, and locked all the

doors. She swabbed the inside of her mouth with a Q-tip and cotton balls and placed

those items in a Ziploc bag. Officer Bryan Stitz (“Officer Stitz”) of the Jacksonville

Police Department arrived about five or ten minutes later. KL told Officer Stitz what

had happened. A second police officer swabbed KL’s mouth to collect evidence.

      Officer William Woolfolk (“Officer Woolfolk”) of the Jacksonville Police

Department testified that he arrived at the victim’s residence around 8:44 a.m. on 10

May 2013. He spoke with Officer Stitz and a detective on the scene who advised him

that a sexual assault had occurred and there was “some biological evidence in a

sandwich bag inside the foyer.” While wearing latex gloves, Officer Woolfolk collected

a sandwich bag containing two cotton balls and one Q-tip. He then placed the

evidence in his car. He changed gloves and collected more Q-tip samples from the

sink. Once he had gathered the evidence, he transported the samples to the police

department.   The samples were later sent to the United States Army Criminal

Investigation Laboratory (“USACIL”) for analysis. A forensic biologist employed by



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USACIL, found three separate DNA profiles in the samples: KL, her husband, and

Defendant.

      KL saw the man who attacked her two weeks later when she was walking home

from a shopping trip to Walmart around 9:00 p.m. He was wearing a khaki-green

trainer shirt, dark colored knee-length pants, and black shoes with red lines. The

man asked her if she remembered him, and KL answered “yes.” He asked KL if she

had told her husband about the incident and asked about meeting again. KL walked

home immediately and told her husband. Her husband quickly got dressed and

chased after the man, but was unable to find him.

      On 3 June 2013, KL met with a special agent trained as a sketch artist at the

police department. KL provided a rough sketch of her attacker she had drawn herself.

After the sketch artist met and spoke with her at length about the incident, he drew

a composite of KL’s attacker.

      The warrant for Defendant’s arrest alleged that he “unlawfully, willfully, and

feloniously did engage in a sex offense with [KL] by force and against that victim’s

will.” It also alleged that he committed a crime against nature with KL and alleged

that Defendant entered KL’s residence with the intent to commit a felony.

      Defendant was charged in a three-count bill of indictment. The second and

third counts were for “Crime Against Nature” and “Breaking and Entering,”

respectively, stating charges consistent with the arrest warrant. But count one in



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the indictment, labeled “Second Degree Sexual Offense,” did not match the arrest

warrant. It stated that Defendant “willfully and feloniously did attempt to engage in

a sex offense with [KL] by force and against that victim’s will.” (Emphasis added.)

          The word “attempt” in the indictment apparently escaped the notice of the trial

court, who instructed jurors that “[t]he defendant has been charged with second-

degree sexual offense.” The trial judge provided no instruction regarding attempt.

The jury returned a guilty verdict for Defendant for second-degree sex offense and

felonious breaking or entering.2 The trial court consolidated the offenses into one

judgment. Defendant was sentenced in the presumptive range to 96 to 176 months

in prison. Defendant gave oral notice of appeal.

                                               II. Analysis

A. Validity of the Indictment

          Defendant first argues that the trial court erred in accepting the jury’s verdict

of guilty of second-degree sex offense, when count one of the indictment charged

attempted second-degree sex offense. We agree.

          “[W]here an indictment is alleged to be invalid on its face, thereby depriving

the trial court of its jurisdiction, a challenge to that indictment may be made at any

time, even if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481,

503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). “This


          2   Before the case was submitted to the jury, the State dismissed the charge of crime against
nature.

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Court reviews the sufficiency of an indictment de novo. An indictment must set forth

each of the essential elements of the offense . . . . To require dismissal any variance

must be material and substantial and involve an essential element.” State v. Hooks,

__ N.C. App. __, __, 777 S.E.2d 133, 138 (2015) (internal quotation marks and citation

omitted).

      North Carolina permits “short-form” indictments in murder, sex offense, and

rape cases. Wallace, 351 N.C. at 508, 528 S.E.2d at 343. N.C. Gen. Stat. § 15-144.2(a)

(2015) provides, in pertinent part:

             In indictments for sex offense it is not necessary to allege
             every matter required to be proved on the trial; but in the
             body of the indictment, after naming the person accused,
             the date of the offense, the county in which the sex offense
             was allegedly committed, and the averment “with force and
             arms,” as is now usual, it is sufficient in describing a sex
             offense to allege that the accused person unlawfully,
             willfully, and feloniously did engage in a sex offense with
             the victim, naming the victim, by force and against the will
             of such victim and concluding as is now required by law.

       “[T]he trial court lacks subject matter jurisdiction to try, or enter judgment on,

an offense based on an indictment that only charges a lesser-included offense.” State

v. Scott, 150 N.C. App. 442, 453–54, 564 S.E.2d 285, 294 (2002).            “While it is

permissible to convict a defendant of a lesser degree of the crime charged in the

indictment, . . . an indictment will not support a conviction for an offense more serious

than that charged.” Id. at 454, 564 S.E.2d at 294.

      In this case, count one of the indictment does not set forth each element of


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second-degree sex offense, as required to confer jurisdiction upon the trial court to

convict for that offense. See Hooks, __ N.C. App. at __, 777 S.E.2d at 138. Because

an attempted sex offense, as described in this indictment, is not a completed sex

offense, the statutory essential element that Defendant “engage in a sexual act” is

absent.

      The State argues that the indictment is valid because the word “attempt” is

simply “used in its common meaning, to describe the defendant’s unsuccessful

attempt to engage in vaginal intercourse with the victim.” This argument is without

merit because the North Carolina statute provides a definition of “sexual act” which

does not include vaginal intercourse. N.C. Gen. Stat. § 14-27.20(4); 14-27.5 (2013).

Further, “[w]ords [(in a statutorily prescribed form of criminal pleading)] having

technical meanings must be construed according to such meanings.” State v. Coker,

312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984). The word “attempt” in the indictment

must be construed according to its technical meaning—an attempted second-degree

sex offense.

      The State further argues that count one and count two (crime against nature),

when considered together, satisfy all the elements of a valid short-form indictment

for completed second-degree sexual offense.         This argument is without merit.

Although count one contains the phrase “by force and against the victim’s will,” count

two does not. The indictment does not allege that the crime against nature was by



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force and against the victim’s will. Even if we assume the words “crime against

nature” in count two of the indictment refer to a sexual act, the indictment does not

show that the crime against nature it alleges is the sexual act referenced in count one.

Without the specific allegation that the crime against nature was committed by force

and against the person’s will, the indictment is devoid of an essential element of

second-degree sex offense.    Also, because the State dismissed the crime against

nature charge, the jury had no opportunity to determine Defendant’s guilt to that

count of the indictment.

      The facts of this case are similar to those in State v. Pettis, COA11-1438, 2012

N.C. App. LEXIS 734, *1, 221 N.C. App. 435, 727 S.E.2d 25 (2012) (unpublished). In

Pettis, both the heading and the body of the indictment at issue contained language

pertaining to attempted sex offense by a person assuming a parental role. During

trial, the prosecutor misspoke and stated that the body of the indictment did not

contain the word “attempt” and that the State was proceeding on the principle charge.

Id. at *3–5. The trial court, relying on the prosecutor’s misstatement, instructed the

jury on completed sexual offense by a person assuming a parental role. Id. at *5–6.

Because the trial court did not have “ ‘subject matter jurisdiction to try, or enter

judgment on, an offense based on an indictment that only charges a lesser-included

offense[,]’ ” this Court vacated the defendant’s conviction. Id. at *7 (quoting Scott,

150 N.C. App. at 453–54, 564 S.E.2d at 294).



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      The indictment charging Defendant with second-degree sexual offense failed

to allege that Defendant actually committed a sex offense, so it was ineffective to

confer jurisdiction upon the trial court to convict Defendant of second-degree sexual

offense. However, the indictment sufficiently alleged attempted second-degree sexual

offense and the jury’s verdict supports a conviction for that offense. See N.C. Gen.

Stat. § 15-144.2 (2015) (“Any bill of indictment containing [the short-form] averments

and allegations . . . will support a verdict of guilty of . . . an attempt to commit a sex

offense or an assault.”); N.C. Gen. Stat. § 15-170 (2015) (“Upon the trial of any

indictment the prisoner may be convicted of the crime charged therein or of a less

degree of the same crime, or of an attempt to commit the crime so charged, or of an

attempt to commit a less degree of the same crime.”); State v. Stokes, 367 N.C. 474,

482, 756 S.E.2d 32, 38 (2014) (“By finding defendant guilty of second-degree

kidnapping, the jury necessarily found beyond a reasonable doubt all the elements of

the lesser included offense of attempted second-degree kidnapping.”). We vacate the

judgment and remand this case to the trial court for entry of judgment of conviction

for attempted second-degree sexual offense and breaking or entering and for

resentencing. See Lineberger v. N.C. Dep’t of Corr., 189 N.C. App. 1, 18, 657 S.E.2d

673, 684 (2008) (“Under a consolidated sentence, if one of the counts upon which the

conviction is based is set aside, the entire judgment must be remanded for

resentencing even if the remaining counts would have been sufficient, standing alone,



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to justify the consolidated sentence.”).

      The trial court must determine Defendant’s sentences for attempted second-

degree sexual offense and breaking or entering. State v. Wortham, 318 N.C. 669, 674,

351 S.E.2d 294, 297 (1987) (“[W]e think the better procedure is to remand for

resentencing when one or more but not all of the convictions consolidated for

judgment has been vacated.”); see Scott, 150 N.C. App. at 453–54, 564 S.E.2d at 294

(vacating the defendant’s conviction for first-degree arson and remanding to the trial

court for entry of judgment and resentencing for second-degree arson because the

indictment failed to allege all the essential elements of first-degree arson).

      On remand, the trial court is not bound by its earlier decision to consolidate

Defendant’s convictions for sentencing. N.C. Gen. Stat. § 15A-1335 (2015) provides,

in pertinent part:

              When a conviction or sentence imposed in superior court
              has been set aside on direct review or collateral attack, the
              court may not impose a new sentence for the same offense,
              or for a different offense based on the same conduct, which
              is more severe than the prior sentence less the portion of
              the prior sentence previously served.

N.C. Gen. Stat. § 15A-1335 “does not prohibit the trial court’s replacement of

concurrent sentences with consecutive sentences upon resentencing, provided neither

the individual sentences, nor the aggregate sentence, exceeds that imposed at the

original sentencing hearing.” State v. Oliver, 155 N.C. App. 209, 211, 573 S.E.2d 257,

258 (2002).


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B. Ineffective Assistance of Counsel

      Defendant next argues that he received ineffective assistance of counsel

because his counsel at trial failed to object to evidence of Defendant’s involvement in

another sexual assault of a different female victim. After careful review of the record,

we disagree.

1. Standard of Review

      “In order to obtain relief on the basis of an ineffective assistance of counsel

claim, Defendant is required to demonstrate that his trial counsel’s performance was

deficient and that this deficient performance prejudiced the defense.”          State v.

Pemberton, 228 N.C. App. 234, 240, 743 S.E.2d 719, 724 (2013) (internal citations

omitted). The United States Supreme Court has provided a two-part test to use in

deciding whether a defendant has a valid claim for ineffective assistance of counsel:

               First, the defendant must show that counsel’s performance
               was deficient. This requires showing that counsel made
               errors so serious that counsel was not functioning as the
               “counsel” guaranteed the defendant by the Sixth
               Amendment. Second, the defendant must show that the
               deficient performance prejudiced the defense.            This
               requires showing that counsel’s errors were so serious as to
               deprive the defendant of a fair trial, a trial whose result is
               reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). The North

Carolina Supreme Court adopted this test in State v. Braswell, 312 N.C. 553, 562,

324 S.E.2d 241, 248 (1985). To establish that counsel was ineffective, “the defendant



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must show that counsel’s representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. “[E]ven if counsel

made an unreasonable error, [a defendant must show that] there is a reasonable

probability that, but for counsel’s errors, there would have been a different result in

the proceedings.” State v. Banks, 210 N.C. App. 30, 49, 706 S.E.2d 807, 821 (2011)

(internal quotation marks omitted).

      “In general, claims of ineffective assistance of counsel should be considered

through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147

N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). However, when the appellate court

can adequately review the merits of an ineffective assistance of counsel claim based

on the appellate record, we will do so in the interest of judicial economy.

             It is well established that ineffective assistance of counsel
             claims brought on direct review will be decided on the
             merits when the cold record reveals that no further
             investigation is required, i.e., claims that may be developed
             and argued without such ancillary procedures as the
             appointment of investigators or an evidentiary hearing.

State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (internal

quotation marks and citation omitted).

      Defendant’s ineffective assistance of counsel claim is based upon evidence

introduced at trial and does not rely upon information outside the record. Accordingly,

we address it.

2. Evidence of Another Crime


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       During a criminal trial, evidence of other crimes committed by the defendant—

crimes for which he is not on trial—is not admissible to prove the defendant’s

propensity to commit the crime charged. N.C. Gen. Stat. §8C-1, N.C. R. Evid. 404(b)

(2015). But evidence of other crimes is admissible for other purposes, including to

identify the defendant as the perpetrator of the crime for which he is on trial. Id. In

this case, the State introduced evidence of Defendant’s involvement in another sexual

assault because a sample of Defendant’s DNA collected in the investigation of that

assault matched DNA found at the scene of the assault on KL.

       Defendant argues his counsel should have objected to testimony by two

Jacksonville Police Department officers who investigated a sexual assault on 14 July

2013 (“the July assault”), two months after the assault on KL.

       In a voir dire hearing outside the jury’s presence, the State offered transcribed

testimony by Officer Chris Funcke (“Officer Funcke”) given in Defendant’s trial

following the July assault.3 The State argued that the evidence was probative to

show Defendant’s identity as KL’s attacker and to tell jurors the complete story of

how law enforcement officers had matched Defendant’s DNA with DNA found at the

crime scene in the present case. The prosecutor explained that Defendant was not a




       3  Defendant was convicted on charges of first-degree sexual offense, first-degree kidnapping,
and crime against nature in the other case, which this Court reviewed and held was free from error.
State v. Gates, __ N.C. App. __, __, 781 S.E.2d 883, 886 (2016). Jurors in the present case were not
told about Defendant’s conviction in that case.


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suspect in the present case until officers investigated him in the July assault case.

The prosecutor noted similarities between the two incidents in that each: (1) involved

an alleged assault on a stranger, (2) involved the demand of oral sex in a “forced

situation,” (3) happened in the early morning hours, and (4) occurred within three

miles of one another. Defense counsel objected to testimony relaying a hearsay

statement by the victim in the July assault and asked the trial court to tell the jury

that evidence about the July assault “is being offered for these particular purposes

and these purposes only.” Defense counsel acknowledged that the State was offering

the evidence “to link up how they ended up with Mr. Gates and his DNA and brought

it into here.”   The trial court allowed the testimony, including the July assault

victim’s hearsay statement, for the purposes of proving Defendant’s identity as KL’s

attacker, “enhanc[ing] the natural development of the facts,” and “describ[ing] a chain

of circumstances which the [S]tate needs to show, in order to introduce testimony as

to a subsequent search warrant of [D]efendant’s home, as well as the acquisition of

the DNA sample.” Following the voir dire hearing, and prior to Officer Funcke’s

testimony, the trial court gave the jury a limiting instruction:

             Ladies and gentlemen, this testimony is not being
             admitted to show or prove the character of the
             defendant, or any propensity of the defendant to
             commit any offense. Mr. Funcke’s testimony is being
             received solely for the purpose of showing the identity
             of the person who committed the alleged offense on
             May 10, 2013. It is also being admitted to explain the
             development of the facts of the case and the chain of


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              circumstances that led to further law enforcement actions,
              which will be described by additional witnesses offered
              by the state. If you believe this testimony or evidence,
              you may consider it, but only for the limited purposes for
              which it was received.

The trial court reiterated this limiting instruction during the jury instructions at the

end of the trial.

       Officer Funcke testified at trial for the present case as follows:

       While patrolling the parking lot of Hooligans nightclub in the early morning of

14 July 2013, Officer Funcke noticed a car parked behind an adjacent building. When

he pulled his vehicle next to the parked car, he saw Defendant, whom he identified

in court, lying on the ground and a woman performing fellatio on him. When the

woman saw Officer Funcke, she stood up and ran toward him, “crying hysterically,”

thanking him and saying “he [(Defendant)] was going to rape me.” She told Officer

Funcke that she had been trying to get into her car when Defendant punched her and

forced her to the location where Officer Funcke had found them. Officer Funcke then

examined Defendant’s car at the scene and saw a green, military-style shirt, like that

identified by KL in the present case. Another officer who arrived on the scene

mentioned the sketch of KL’s attacker and Officer Funcke recognized that Defendant

resembled that sketch.

       The trial court also allowed testimony by Detective Karen Scott (“Detective

Scott”) as follows: Detective Scott was the lead investigator of the July assault and



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was also assigned to KL’s case, which remained open as officers had not identified a

suspect. While searching Defendant’s house in connection with the July assault,

Detective Scott found shoes consistent with those KL had described were worn by her

attacker. Detective Scott collected a sample of Defendant’s DNA and discovered that

it matched the DNA on the swab samples taken from KL’s residence.

      The trial court did not give jurors a limiting instruction regarding Detective

Scott’s testimony. Defense counsel did not object before the jury to testimony by

either Officer Funcke or Detective Scott.

      N.C. Gen. Stat. §8C-1, N.C. R. Evid. 404(b) provides:

             Evidence of other crimes, wrongs, or acts is not admissible
             to prove the character of a person in order to show that he
             acted in conformity therewith. It may, however, be
             admissible for other purposes, such as proof of motive,
             opportunity, intent, preparation, plan, knowledge, identity,
             or absence of mistake, entrapment or accident.

Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes,

wrongs or acts by a defendant, subject to but one exception requiring its exclusion if

its only probative value is to show that the defendant has the propensity or

disposition to commit an offense of the nature of the crime charged.” State v. Coffey,

326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990) (emphasis removed).

             [A]dmission of evidence of a criminal defendant’s prior bad
             acts, received to establish the circumstances of the crime
             on trial by describing its immediate context, has been
             approved in many other jurisdictions following adoption of
             the Rules of Evidence. This exception is known variously


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             as the “same transaction” rule, the “complete story”
             exception, and the “course of conduct” exception. Such
             evidence is admissible if it forms part of the history of the
             event or serves to enhance the natural development of the
             facts.

State v. Agee, 326 N.C. 542, 547, 391 S.E.2d 171, 174 (1990) (internal quotation marks

and citations omitted). “Our Supreme Court has ruled that the list of exceptions

contained in Rule 404(b) is not exclusive and that extrinsic evidence of conduct is

admissible if relevant for some purpose other than to show that defendant has the

propensity for the type of conduct for which he is being tried.” State v. Pruitt, 94 N.C.

App. 261, 266, 380 S.E.2d 383, 385 (1989) (internal quotation marks omitted).

“Moreover, in cases involving prior sex offenses, including rape, our courts have been

markedly liberal in the admission of 404(b) evidence.” State v. Harris, 140 N.C. App.

208, 211, 535 S.E.2d 614, 617 (2000). “The burden is on the defendant to show that

there was no proper purpose for which the evidence could be admitted.” State v.

Moseley, 338 N.C. 1, 32, 449 S.E.2d 412, 431 (1994).

      Our review of the record, summarized above, reveals that Defendant could not

have met his burden to show there was no proper purpose for the testimony by Officer

Funcke and Detective Scott. It was relevant to prove Defendant’s identity as KL’s

attacker, as the trial court stated. The testimony explained why law enforcement

officers identified Defendant as a suspect in the assault on KL and how they obtained

his DNA, which matched DNA samples collected following KL’s assault. It “serve[d]



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to enhance the natural development of the facts.” Agee, 326 N.C. at 547, 391 S.E.2d

at 174. Because of these legitimate purposes, the testimony was admissible. Defense

counsel’s failure to object to the introduction of the evidence was not deficient.

Defendant’s ineffective assistance of counsel claim is therefore overruled.4

                                       III. Conclusion

       For the foregoing reasons, we vacate the conviction for second-degree sexual

offense and remand for entry of judgment and resentencing for attempted second-

degree sexual offense and breaking or entering. We overrule Defendant’s claim for

ineffective assistance of counsel.

       VACATED AND REMANDED.

       Judges STEPHENS and HUNTER, JR. concur.




       4 We also deny Defendant’s Motion Requesting This Court to Take Judicial Notice That the
Sun Rose at 6:10 A.M. on Friday, May 10, 2013, at Jacksonville, Onslow County, North Carolina Based
on the Records of the US Naval Observatory. Knowledge of the time the sun rose on that particular
day may pertain to whether the evidence of the other crime showed Defendant had a common plan or
scheme, but it is not necessary with regard to identity or showing the complete story.

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