{ "id": 8999524, "name": "STATE OF NORTH CAROLINA v. JOSEPH ALOYSIUS DYSON, II", "name_abbreviation": "State v. Dyson", "decision_date": "2004-08-03", "docket_number": "No. COA03-1046", "first_page": "648", "last_page": "657", "citations": [ { "type": "official", "cite": "165 N.C. App. 648" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "566 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "152 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249579 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/152/0220-01" ] }, { "cite": "403 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525353 ], "year": 1991, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0630-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "691" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "550 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "235", "parenthetical": "acts of masturbation in front of a male and female child admissible in case alleging rape of a female child" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435979 ], "year": 2001, "pin_cites": [ { "page": "124", "parenthetical": "acts of masturbation in front of a male and female child admissible in case alleging rape of a female child" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0119-01" ] }, { "cite": "501 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "642" } ], "opinion_index": 0 }, { "cite": "348 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659773 ], "year": 1998, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0377-01" ] }, { "cite": "376 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "487-88", "parenthetical": "involving nearly a five-year lapse of time between sexual acts" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527845 ], "year": 1989, "pin_cites": [ { "page": "85", "parenthetical": "involving nearly a five-year lapse of time between sexual acts" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0083-01" ] }, { "cite": "537 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132011, 132268, 131949, 132212, 132255 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0595-03", "/nc/350/0595-04", "/nc/350/0595-05", "/nc/350/0595-01", "/nc/350/0595-02" ] }, { "cite": "514 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 31", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11215554 ], "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0031-01" ] }, { "cite": "464 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915066 ], "year": 1995, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0001-01" ] }, { "cite": "330 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721689 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0554-01" ] }, { "cite": "283 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "304 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567671 ], "year": 1981, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0349-01" ] }, { "cite": "447 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187280 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "635" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/us/447/0625-01" ] }, { "cite": "298 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "year": 1980, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "572 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "356 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511555 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0556-01" ] }, { "cite": "435 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521884 ], "year": 1993, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0429-01" ] }, { "cite": "281 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "164" } ], "opinion_index": 0 }, { "cite": "303 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575112 ], "year": 1981, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0666-01" ] }, { "cite": "279 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "303 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574100 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0507-01" ] }, { "cite": "370 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "322 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515580 ], "year": 1988, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0783-01" ] }, { "cite": "552 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "201", "parenthetical": "corroborative evidence need not mirror the testimony it seeks to corroborate, and may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355641 ], "year": 2001, "pin_cites": [ { "page": "232", "parenthetical": "corroborative evidence need not mirror the testimony it seeks to corroborate, and may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0220-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "340 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "79", "parenthetical": "holding the trial court did not err in admitting testimony of protective services worker as corroborating evidence of testimony of victim" } ], "opinion_index": 0 }, { "cite": "316 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696516 ], "year": 1986, "pin_cites": [ { "page": "160", "parenthetical": "holding the trial court did not err in admitting testimony of protective services worker as corroborating evidence of testimony of victim" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0152-01" ] }, { "cite": "370 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "679", "parenthetical": "concluding testimony was corroborative if it tended to add weight or credibility to earlier testimony of witness" } ], "opinion_index": 0 }, { "cite": "322 N.C. 818", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515424 ], "year": 1988, "pin_cites": [ { "page": "825", "parenthetical": "concluding testimony was corroborative if it tended to add weight or credibility to earlier testimony of witness" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0818-01" ] }, { "cite": "324 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "312 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752702 ], "year": 1985, "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0760-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "577 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "602-03" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491879 ], "year": 2003, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0001-01" ] } ], "analysis": { "cardinality": 898, "char_count": 21921, "ocr_confidence": 0.757, "pagerank": { "raw": 2.9933776981023507e-07, "percentile": 0.8518948402011083 }, "sha256": "b1461e85e28969561f936282adf2391cbcd24783192fc9650bf76067ad53afbc", "simhash": "1:c777c42a7637d5f2", "word_count": 3551 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSEPH ALOYSIUS DYSON, II" ], "opinions": [ { "text": "BRYANT, Judge.\nJoseph Aloysius Dyson, II (defendant) appeals a judgment dated 29 April 2003 entered consistent with a jury verdict finding him guilty of first-degree sexual offense.\nThe State\u2019s evidence at trial tended to show that eight-year-old A.H. resided with her mother and siblings in South Carolina. During the summer of 2002, A.H. went to stay with her aunt in Pinebluff, North Carolina. Defendant occasionally spent the night at the home of A.H.\u2019s aunt and usually slept in the living room. One night while A.H. slept in her aunt\u2019s room, defendant entered, awakened A.H., and \u201cmade [her] suck his thing.\u201d A.H.\u2019s sisters, infant'cousin and aunt remained asleep during the incident. The next day, A.H. telephoned her mother and said that \u201cJoseph had been messing with her.\u201d When A.H.\u2019s mother asked what she meant, A.H. replied that \u201che made [her] suck his thing.\u201d Several days later A.H. was interviewed by Tanyetta Felder (Felder), a Child Protective Services worker with Moore County Department of Social Services (DSS). A.H. told Felder defendant had \u201ctouched her private parts with his hand and then made her suck his thing,\u201d that it was defendant\u2019s \u201cprivate part that he made her suck.\u201d\nThe State also presented \u201cother crimes\u201d evidence which tended to show that more than 10 years previously, in October 1991, Kevin B. Motter (Detective Motter), with the Spring Lake Police Department, investigated an incident involving defendant. He took a statement from defendant who said that on 23 October 1991 he was in a park with friends when it began to rain and that he and a boy, who was nine or ten years old at the time, \u201cran to one of the dugouts from the baseball diamond.\u201d While sitting in the dugout, defendant \u201cpulled [the boy\u2019s] pants down and began sucking his penis.\u201d\nDefendant presented no evidence at trial.\nOn appeal, defendant raises four issues of whether the trial court erred by: (I) admitting testimony of a child protective services worker regarding statements made to her by the child victim; (II) admitting opinion testimony of a witness who had not been qualified as an expert; (III) not instructing the jury as to indecent liberties with a minor; and (IV) admitting testimony concerning a prior sexual act committed by defendant. Interspersed in some of defendant\u2019s arguments are claims of ineffective assistance of counsel, which are addressed in the last section of this opinion.\nI\nDefendant first argues it was plain error for the trial court to admit testimony from Felder regarding statements made to her by the child victim, A.H. We note that because defendant failed to object to the admission of this testimony, we must apply plain error review.\n\u201cPlain error analysis is applied when our review of the entire record reveals ... a fundamental error so prejudicial that justice cannot have been done.\u201d State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602-03 (2003). \u201cTo prevail, the \u2018defendant must convince this Court not only that there was error, but that absent the error the jury probably would have reached a different result.\u2019 \u201d Id. (citation omitted). Plain error review is to be applied only to exceptional cases. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).\nIn the instant case, A.H. testified at trial that defendant had her perform oral sex on him on one occasion. Felder testified that A.H. told her that defendant \u201ctouched her private parts with his hand and then he made her suck his thing.\u201d Felder further stated A.H. told her \u201cit was more than one time.\u201d Defendant contends Felder\u2019s statements did not corroborate A.H.\u2019s testimony at trial, and it was plain error for the trial court to have allowed such testimony.\nCorroboration is \u201c [t]he process of persuading the trier of the facts that a witness is credible.\u201d 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 49 (3d ed. 1988). Our Supreme Court has defined \u201ccorroborate\u201d as \u201cto strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.\u201d State v. Higginbottom, 312 N.C. 760, 769, 324 S.E.2d 834, 840 (1985); see State v. Aguallo, 322 N.C. 818, 825, 370 S.E.2d 676, 679 (1988) (concluding testimony was corroborative if it tended to add weight or credibility to earlier testimony of witness); State v. Riddle, 316 N.C. 152, 160, 340 S.E.2d 75, 79 (1986) (holding the trial court did not err in admitting testimony of protective services worker as corroborating evidence of testimony of victim).\nIn State v. Lloyd, our Supreme Court further reiterated the principle that testimony which is offered to corroborate the testimony of another witness and which substantially does corroborate the testimony is not rendered incompetent because there is some variation. 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001); see also State v. Beane, 146 N.C. App. 220, 232, 552 S.E.2d 193, 201 (2001) (corroborative evidence need not mirror the testimony it seeks to corroborate, and may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates).\nWhile Felder\u2019s testimony went beyond the single act of oral sex to which A.H. testified, Felder\u2019s testimony did not depart from A.H.\u2019s testimony that oral sex occurred between defendant and A.H. Therefore, while there was some variation, Felder\u2019s testimony was nonetheless corroborative of A.H.\u2019s testimony and properly admitted for that purpose.\nFinally, defendant is unable to show error such that the jury probably would have reached a different result absent the alleged error. Defendant was indicted, tried, and convicted of one count of first-degree sexual offense. A.H. testified defendant \u201cmade [her] suck his thing,\u201d and A.H.\u2019s mother testified A.H. told her defendant \u201cmade [A.H.] suck his thing.\u201d Based on this evidence, defendant is unable to show plain error in the admission of Felder\u2019s testimony. This assignment of error is overruled.\nII\nDefendant next argues the trial court erred in admitting hearsay and opinion testimony by a witness not qualified as an expert. Again, we note defendant did not object at trial to the testimony he now challenges, and we therefore apply plain error analysis.\n\u201cHearsay is defined as a statement, other than the one made by the declarant while testifying at trial or hearing offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2003). \u201c[W]hen admitted without objection, otherwise inadmissible hearsay may be considered with all the other evidence and given such evidentiary value as it.may possess.\u201d 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 139 (3d ed. 1988).\nThe following statement is the first of two made by Felder that defendant challenges as inadmissible opinion hearsay:\nWhen I received the report and information from \u2014 [w]hat [c]ounty is this? North Carolina. Let me make sure I give you the right information that \u2014 of sexual abuse allegations against [A.H.] by Mr. Joseph Dyson. He was the perpetrator.\nWhen Felder stated, \u201c[h]e was the perpetrator,\u201d she was referring to defendant as the alleged perpetrator identified in the DSS report in order to differentiate this case from her other Moore County DSS cases. Felder was not testifying as an expert witness, nor did she state an opinion that defendant was in fact the perpetrator.\nDefendant also contends Felder was allowed to offer opinion testimony as to recommended treatment for A.H., without being qualified as an expert witness. Felder stated:\nThey said that that was normal, you know, for [A.H.] to have, you know, some anger. And what they did with their recommendations, they recommend that, you know, she undergo some type of therapy with mental health to deal with the sexual abuse.\nThis testimony is too vague to amount to opinion testimony. The transcript reveals \u201cthey\u201d refers to the facility that performed A.H.\u2019s forensic evaluation. Defendant did not object to this testimony at trial, and on appeal, fails to demonstrate plain error in the admission of Felder\u2019s statement as to A.H.\u2019s forensic evaluation. Moreover, we find neither of Felder\u2019s statements now challenged by defendant would have prejudiced the jury and \u201ctilted the scales\u201d in favor of conviction. State v. Short, 322 N.C. 783, 790, 370 S.E.2d 351, 355 (1988). This assignment of error is overruled.\nIll\nDefendant next argues the trial court erred by not instructing the jury as to indecent liberties with a minor.\nWhen defendant requested the trial court to instruct the jury on indecent liberties with a minor, the trial court refused to do so stating,\nCourt: Crime against nature and indecent liberties are not lesser-included offenses of first- or second-degree sexual offenses, 303 North Carolina 507 and 309 North Carolina 224. ... It would seem ... in this case there\u2019s ' no conflicting evidence about the . . . second element, the age of the child. There\u2019s no conflicting evidence about the third element, the age of the victim. And it would seem that there\u2019s no \u2014 it\u2019s an issue of credibility as to whether fellatio occurred or didn\u2019t occur . . . the request to instruct on a lesser-included offense of taking indecent liberties is denied. Any other requests?\nDefense: No, Your Honor.\nOur courts have clearly held that indecent liberties with a minor is not a lesser-included offense of a first-degree sex offense. State v. Williams, 303 N.C. 507, 513, 279 S.E.2d 592, 596 (1981); State v. Ludlum, 303 N.C. 666, 674, 281 S.E.2d 159, 164 (1981); State v. Ramseur, 112 N.C. App. 429, 436, 435 S.E.2d 837, 841 (1993).\nIn determining when a lesser-included offense instruction is required, our Supreme Court held in State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002) that:\nUnder North Carolina and federal law a lesser included offense instruction is required if the evidence \u201cwould permit a jury rationally to find [defendant] guilty of the lesser offense and acquit him of the greater.\u201d State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654, quoting Beck v. Alabama, 447 U.S. 625, 635, 65 L. Ed. 2d 392, 401, 100 S. Ct. 2382 (1980). The test is whether there \u201cis the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.\u201d State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). Where the State\u2019s evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required. State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985).\nId. at 562, 572 S.E.2d at 772.\nThe trial court in the instant case examined the lack of conflict in the evidence as to all but one element (fellatio) in determining whether or not to instruct the jury on indecent liberties with a minor. Defendant argues that some of the State\u2019s evidence supported a lesser charge of indecent liberties; however the State\u2019s evidence supported each and every element of a first-degree sex offense without contradiction. Because neither the victim\u2019s nor defendant\u2019s age were in dispute, the only question for the jury to decide was whether defendant engaged in fellatio, a first-degree sexual offense, with the victim. Because indecent liberties with a minor is not a lesser-included offense of first-degree sexual offense and the State\u2019s evidence supported each element of first-degree sex offense, the trial court did not err by failing to instruct the jury on indecent liberties with a minor. This assignment of error is overruled.\nIV\nDefendant next argues the trial court erred in admitting the testimony of Detective Motter concerning a prior sexual act committed by defendant.\nThe State called Detective Motter as a witness on voir dire concerning a 1991 signed statement defendant made to the police where defendant, then seventeen years old, admitted performing oral sex on a nine-year-old boy. The State introduced evidence of the prior sexual act to show defendant\u2019s intent, motive, and common plan, since both acts involved oral sex with young children, eight and nine years old. Defendant objected to the admission of Detective Motter\u2019s statement and asserted the prejudicial effect of the evidence outweighed its probative value. The trial court overruled defendant\u2019s objection citing North Carolina Rules of Evidence 404(b) and 403, and summarized for the record:\nI just wish to make it clear that the court applied . . . the balancing test of Rule 403 and determines, based on the fact that the offense that occurred previously involved a child of the age of eight or nine, that the offense involved fellatio, that the offense involved the defendant seeking out \u2014 being alone with the child, conscious of his presence, and other similarities, and applying the balancing test required by 403 has determined that the evidence is more probative than prejudicial, that the evidence is not unfairly prejudicial, and therefore ruled as the [c]ourt has ruled.\nWhile the period of elapsed time since the prior sexual acts is an important part of the Rule 403 balancing process, and the passage of time may \u201cslowly erode commonalities\u201d between the prior acts and the acts currently charged, the lapse of time in this case does not sufficiently diminish the similarities between the acts. State v. Frazier, 121 N.C. App. 1, 11, 464 S.E.2d 490, 495 (1995); State v. Blackwell, 133 N.C. App. 31, 36, 514 S.E.2d 116, 120 (evidence of prior similar sex offenses which occurred ten and seven years earlier were not too remote in time), cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999); see also State v. Roberson, 93 N.C. App. 83, 85, 376 S.E.2d 486, 487-88 (1989) (involving nearly a five-year lapse of time between sexual acts). Furthermore, \u201cremoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident.\u201d State v. Hipps, 348 N.C. 377, 405, 501 S.E.2d 625, 642 (1998).\nIn the instant case, eight-year-old A.H.- testified defendant made her perform oral sex on him in a bedroom where others were asleep. Detective Motter testified defendant admitted to engaging in oral sex with a nine-year-old child victim in 1991 when they were alone. While these events occurred eleven years apart, Detective Motter\u2019s testimony was introduced to show defendant\u2019s motive and opportunity in engaging in oral sex with A.H. Because the record clearly indicates the trial court applied the appropriate balancing test of N.C, Gen. Stat. \u00a7 8C-1, Rule 403 in deciding whether to admit Officer Motter\u2019s testimony, and because the probative value outweighed the prejudicial effect, we conclude the trial court did not abuse its discretion by admitting the evidence of defendant\u2019s prior sexual act. See State v. Beckham, 145 N.C. App. 119, 124, 550 S.E.2d 231, 235 (2001) (acts of masturbation in front of a male and female child admissible in case alleging rape of a female child). This assignment of error is overruled.\nIneffective Assistance of Counsel\nFinally we note that in several of defendant\u2019s forgoing arguments he contends ineffective assistance of counsel prejudiced his right to a fair trial. Defendant alleges his counsel\u2019s failure to object to certain testimony and request a jury instruction on a lesser-included offense was erroneous and amounted to ineffective assistance of counsel.\nAn error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel\u2019s performance must be prejudicial to the defense in order to constitute ineffective assistance under the United States Constitution.\nStrickland v. Washington, 466 U.S. 668, 691, 80 L. Ed. 2d 674, 696 (1984).\nA defendant claiming a denial of the right to effective assistance of counsel is held to a familiar two-part standard:\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial.\nState v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). Mere allegations surrounding matters of trial tactics, without more, are not sufficient to meet the test set forth in Strickland. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991). \u201cThe defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d State v. Quick, 152 N.C. App. 220, 566 S.E.2d 735 (2002).\nWe have already determined based on plain error review that the trial court did not err in admitting the challenged testimony of child protective services worker Felder. Therefore, defendant\u2019s right to a fair trial could not have been prejudiced by his counsel\u2019s failure to object to Felder\u2019s testimony.\nFurther, as previously discussed, the law is clear that indecent liberties with a minor is not a lesser-included offense of a first-degree sexual offense. Williams, 303 N.C. 507, 279 S.E.2d 592. However, contrary to defendant\u2019s contentions, the record reveals that defense counsel did request a jury instruction as to indecent liberties with a minor, which the trial court denied.\nDefendant has failed to meet his burden under Strickland with respect to his claim of ineffective assistance of counsel. Accordingly, we find no error.\nNo error.\nJudges ELMORE and GEER concur.\n. The victim\u2019s name has been reduced to initials for protection purposes.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Sue Y Little, for the State.", "Bruce T. Cunningham, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH ALOYSIUS DYSON, II\nNo. COA03-1046\n(Filed 3 August 2004)\n1. Evidence\u2014 testimony \u2014 child protective services worker\u2014 sexual assault \u2014 corroboration\nThe trial court did not commit plain error in a first-degree sexual offense case by admitting testimony of a child protective services worker regarding statements made to her by the child victim, because: (1) while the witness\u2019s testimony went beyond the single act of oral sex to which the child victim testified, the witness\u2019s testimony did not depart from the child\u2019s testimony that oral sex occurred between defendant and the victim thus corroborating the testimony although there was some variation; and (2) defendant is unable to show error such that the jury probably would have reached a different result absent the alleged error.\n2. Evidence\u2014 hearsay \u2014 opinion testimony \u2014 plain error analysis\nThe trial court did not commit plain error in a first-degree sexual offense case by admitting hearsay and opinion testimony of a witness who had not been qualified as an expert, because: (1) when admitted without objection, otherwise inadmissible hearsay may be considered with all the other evidence and given such evidentiary value as it may possess; (2) the pertinent testimony was too vague to amount to opinion testimony; and (3) neither of the witness\u2019s pertinent statements would have prejudiced the jury and tilted the scales in favor of conviction.\n3. Sexual Offenses\u2014 first-degree sexual offense \u2014 failure to instruct on indecent liberties with a minor\nThe trial court did not err in a first-degree sexual offense case by failing to instruct the jury as to indecent liberties with a minor, because: (1) indecent liberties with a minor is not a lesser-included offense of a first-degree sex offense; and (2) the State\u2019s evidence supported each element of first-degree sex offense.\n4. Evidence\u2014 prior crimes or bad acts \u2014 sexual act with minor \u2014 motive\u2014intent\u2014common plan\nThe trial court did not abuse its discretion in a first-degree sexual offense case by admitting testimony concerning a prior sexual act committed by defendant with another minor, because: (1) the lapse of time of eleven years between the prior acts and the acts in this case does not sufficiently diminish the similarities between the acts; (2) remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident, and the State introduced evidence of defendant performing oral sex on a nine-year-old boy to show defendant\u2019s intent, motive, and common plan since both acts involved oral sex with young children eight and nine years old; and (4) the trial court applied the appropriate balancing test of N.C.G.S. \u00a7 8C-1, Rule 403, and the probative value outweighed any prejudicial effect.\n5. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object \u2014 failure to request instruction\nDefendant did not receive ineffective assistance of counsel in a first-degree sex offense case based on his attorney\u2019s failure to object to certain testimony and failure to request a jury instruction on a lesser-included offense, because: (1) defendant could not have been prejudiced by failure to object to the pertinent testimony when the Court of Appeals already determined based on plain error review that the trial court did not err by admitting the challenged testimony; and (2) indecent liberties with a minor is not a lesser-included offense of a first-degree sexual offense, and contrary to defendant\u2019s contentions, defense counsel did request this jury instruction.\nAppeal by defendant from judgment dated 29 April 2003 by Judge A. Moses Massey in Moore County Superior Court. Heard in the Court of Appeals 28 April 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Sue Y Little, for the State.\nBruce T. Cunningham, Jr. for defendant-appellant." }, "file_name": "0648-01", "first_page_order": 680, "last_page_order": 689 }