State v. Brown

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-261

Filed 3 December 2024

Rowan County, Nos. 19CRS50541-44

STATE OF NORTH CAROLINA

v.

DAVID NEIL BROWN

Appeal by defendant from judgment entered 10 April 2023 by Judge Patrick

Thomas Nadolski in Rowan County Superior Court. Heard in the Court of Appeals

23 October 2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General

Sondra C. Panico, for the State.

Appellate Defender Glenn Gerding by Assistant Appellate Defender, John F.

Carella, for the defendant-appellant.

TYSON, Judge.

David Neil Brown (“Defendant”), a fifty-one-year-old man, and Helen, a fifteen-

year-old girl, engaged in a sexual relationship spanning several months. See N.C. R.

App. P. 42(b) (pseudonyms used to protect the identity of minors). Defendant appeals

from judgment entered upon the jury’s verdicts of guilty for one count of statutory

rape of a child fifteen years old or younger, two counts of statutory sex offense with a

child fifteen years old or younger, and three counts of indecent liberties with a child.

Our review discerns no error in the jury’s verdicts or in the judgments entered

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Opinion of the Court

thereon.

I. Background

Helen and her family attended the same church as Defendant and his family.

At some point, Helen’s family stopped attending church services. When Helen was

thirteen or fourteen years old, Helen befriended Defendant’s daughter and started

riding to church with Defendant’s family. In March 2017, Helen started staying over

with Defendant’s daughter, his wife, and Defendant on Saturday nights at

Defendant’s house and riding with his family to church on Sunday mornings.

Helen testified she developed a “crush” on Defendant. By the fall of 2017,

Helen, Defendant, and Defendant’s daughter participated in the church’s praise

band, which practiced on Tuesday nights. On some Tuesday nights, Defendant would

drive Helen back to her home by himself.

During one of those car rides in the fall of 2017, Defendant said he noticed the

way Helen had looked at him and asked Helen if she had a crush on him. Defendant

also told her to keep her “britches on” and to not have sex because she was “so young.”

Helen lied and told him she had already had sex because she “did have a crush on

him and [she] wanted him to think [she] had had experience.” During another one of

those car rides in the fall of 2017, Defendant kissed her in his truck when they were

parked in front of Helen’s house.

A few days before Helen’s fifteenth birthday, she attended a wedding along

with Defendant and his family. Helen spent that night at Defendant’s house. Helen

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testified Defendant turned her around and started to touch her body over her clothes

while they poked each other and played around. Defendant’s wife was in the shower,

and his daughter, Helen’s friend, was asleep. The next morning, Defendant again

turned her around and touched her over her clothes, placed her hand over his penis

on the outside of his clothes, and said he would “rock her world.”

After the wedding weekend, Helen testified “it was almost every Saturday that

something had happened between me and him whether it was us making out or him

– it eventually progressed to where he was fingering me” and that was “really all that

we did” for a while. She testified and reaffirmed the first time Defendant had

digitally penetrated her was after the wedding in October 2017, when she was fifteen

years old. Although Helen could not remember the specific occasion, Helen testified

she performed fellatio on Defendant in November 2017.

In the months preceding April 2018, Helen and Defendant had discussed

having sexual intercourse. On 1 April 2018, Easter Sunday, Helen went to church

with Defendant’s family and then went home with them for dinner. Helen asked to

stay the night at Defendant’s house because she did not have school the next day.

Defendant and Helen were the only ones awake in Defendant’s home that

evening. Helen testified she had a conversation with Defendant, during which she

expressed her fear of becoming pregnant if they had sexual intercourse. Defendant

told her he previously had a vasectomy and was “shooting blanks.” She did not testify

Defendant showed her a picture or gave her any evidence of the vasectomy. Helen

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later researched what a vasectomy entails.

Helen testified she had sexual intercourse with Defendant that night in the

bathroom, and clarified he had inserted his penis into her vagina. According to Helen,

they also had sexual intercourse the next day while Defendant’s wife and daughter

were not at the house. In total, Helen claimed she and Defendant had sexual

intercourse probably five more times in various locations in the house, but she could

not remember specific details of those encounters. Helen also testified Defendant

performed oral sex on her one time in the bathroom, but she thought this was after

they had sexual intercourse in April 2018.

Helen and Defendant’s relationship ended on 23 December 2018, which was

the last time they engaged in any sexual activity. Helen testified she was angry with

Defendant “because he wouldn’t do anything with me one day.”

Helen confided in her friend, Mallory, about her relationship with Defendant.

Helen told Mallory she was angry after Helen had found out Defendant had sexual

intercourse with his wife. Helen asked Mallory to pretend to be Defendant’s wife,

and Helen sent Mallory messages to “try to scare him and think that I’m telling [his

wife] what he’s been doing with me.” Mallory “got in trouble, got her phone taken,

and her mom found those messages and told [Helen’s] mom.”

Law enforcement was notified of Helen’s and Defendant’s relationship and

began to investigate. Helen later sat for a recorded interview at the Terrie Hess Child

Advocacy Center (“Terrie Hess”) with forensic interviewer Beth McKeithan

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(“McKeithan”).

Defendant was indicted for three counts of indecent liberties with a child, two

counts of statutory sex offense with a child fifteen years old or younger, and seven

counts of statutory rape of a child fifteen years old or younger.

A. Trial

The State forecasted the evidence they intended to present at trial during

opening statements, which included the video recording taken at Terrie Hess

“recounting everything that had transpired between her and [Defendant].”

McKeithan testified for the State and recalled interviewing Helen in February 2019.

McKeithan testified Helen was referred to Terrie Hess because there was an “active

investigation.” McKeithan conducted the interview in a small room with “a closed-

circuit TV into another small room where law enforcement and Department of Social

Services can come and watch while the child[ ] [is] being interviewed.”

When the State first attempted to introduce State’s Exhibit 2, a DVD of the

interview, defense counsel objected based on lack of foundation and to the

admissibility of the recording as substantive evidence. The trial court allowed the

State to examine McKeithan further, who testified a physical medical examination

was conducted after the forensic interview.

McKeithan testified interviews came first “so that any concerns that come up

during the interview can be addressed in the medical [exam] afterwards.” The State

attempted to again introduce the interview as substantive evidence, and defense

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counsel again objected and requested to voir dire the witness.

The trial court allowed defense counsel to voir dire McKeithan. Defense

counsel renewed and continued to object based on lack of foundation and to its

admissibility as substantive evidence. The prosecutor argued the video was

admissible under the “statements to medical personnel for medical treatment”

exception to hearsay.

In response to questioning from the trial court, McKeithan explained she did

not personally explain to Helen the entire process at Terrie Hess, which included a

forensic interview and medical examination, because that’s “already been covered”

prior to the interview. McKeithan testified Terrie Hess’s protocol provides the family

advocate must inform the child a medical exam follows the forensic interview, and

law enforcement should inform the child the contents of the forensic interview and

medical exam may be used as evidence in a criminal case. McKeithan said the law

enforcement officer who referred the case to Terrie Hess was provided a copy of the

DVD of the interview.

The trial court ruled the interview could “come in under the hearsay exception

of 803(4)” and its admission was not outweighed by the risk of unfair prejudice.

Defense counsel again objected and excepted to the ruling. The interview DVD was

admitted into evidence and played in full for the jury.

The video lasted for over an hour. Forty minutes into the interview,

McKeithan left the room for over thirteen minutes before returning to answer further

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questions. Detective Ryan Barkley, the State’s lead investigator, was present for the

interview and had watched from another room. During the thirteen minutes

McKeithan had stepped outside of the interview room, he had asked McKeithan to

clarify several details about Helen’s relationship with Defendant.

Detective Barkley testified regarding his search of Defendant’s house pursuant

to a warrant, his arrest of Defendant, and his search of Defendant’s cell phone.

Barkley said the cell phone was searched by a forensic analyzer, who used an

electronic program to retrieve all the data on Defendant’s phone. The program

prepares a report Barkley later reviewed.

Barkley testified he saw an image of “a home vasectomy test” while searching

through the results of the report. The State introduced the photograph as State’s

Exhibit 3 without objection. The photograph was admitted solely for illustrative

purposes. On cross-examination, Barkley admitted he had no idea when the

photograph was made or how it was stored on the device. The State did not introduce

text messages or any other information obtained from Defendant’s phone explaining

why he may have taken an image of the at-home vasectomy test.

During the State’s closing argument, the prosecutor said the following

regarding State’s Exhibit 3, the photograph of the vasectomy test:

This is also really important. The state introduced a photo

of a vasectomy test strip, right, from the defendant’s phone.

So let’s talk about a couple of things. One, why would a 15-

year-old know that her best friend’s father has had a

vasectomy? How does that just come up? Two, if the

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defendant has had a vasectomy, why is there a test strip on

his phone? He’s married. Presumably his wife knows he’s

had a vasectomy. Why is there a photo of a test strip? And

the photo of the te[s]t strip is on the phone, again, there’s

no date stamp, I recognize that, but it’s on the phone during

the time that Detective Barkley is doing his investigation.

He gave you a narrow window of when this was reported,

when his investigation started, and when they did the

dump on the defendant’s cell phone.

Why would that test strip be there if your wife knows

you’ve had a vasectomy? What does your common sense

and everyday reasoning tell you? Does it tell you that, if

someone’s having sex with someone else who’s not

comfortable with being ejaculate[ed] inside of, does it tell

you that that person would take a photo to alleviate those

concerns? Or would you just have the photo of the test strip

just to have it? What does your everyday common sense

and reasoning tell you? That is very important. And,

again, she is 15 years old and knows her best friend’s father

has had a vasectomy. How does that happen? These are

facts that you put together and you use your everyday

common sense and reasoning to arrive at your conclusion.

Defendant failed to object during the State’s closing argument. Defendant

argued during his closing argument no date was shown on the photograph, the photo

had nothing to do with the case, and “the [S]tate would have you supply a reason that

fits its side of the story.”

B. Verdict and Sentencing

The jury convicted Defendant of all three counts of indecent liberties with a

child, both statutory sex offenses, but only one count of statutory rape of a child fifteen

years old or younger. Defendant was sentenced to an active term of 192 to 291

months’ imprisonment for one of his statutory sex offense with a child fifteen years

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old or younger convictions and one indecent liberties with a child convictions. He was

sentenced to a second, consecutive sentence for 192 to 291 months’ imprisonment for

his second statutory sex offense with a child fifteen years old or younger conviction.

Lastly, he was sentenced for 192 to 291 months’ imprisonment for his statutory rape

of a child fifteen years older or younger conviction. Judgment was arrested for his

two remaining indecent liberties with a child convictions. Defendant entered timely

notice of appeal.

II. Jurisdiction

This Court possesses jurisdiction to review a final judgment entered in a

criminal case pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2023).

III. Issues

Defendant argues the trial court erred by admitting State’s Exhibit 2, an hour-

long video interview of the alleged victim coordinated with law enforcement, as

substantive evidence over Defendant’s hearsay objections. Defendant additionally

argues he received ineffective assistance of counsel when his attorney failed to object

to either the admission of State’s Exhibit 3, an undated photograph of a test strip

allegedly taken from Defendant’s phone, or the State’s alleged improper closing

argument asking the jury to consider the photograph as substantive evidence.

IV. Hearsay

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Defendant argues the trial court erred by admitting State’s Exhibit 2, an hour-

long video interview of the alleged victim coordinated with law enforcement, as

substantive evidence over Defendant’s hearsay objections.

A. Standard of Review

“When preserved by an objection, a trial court’s decision with regard to the

admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson,

209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011) (citation omitted).

B. Analysis

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2023). “Hearsay is not admissible,

except as provided by statute[.]” N.C. Gen. Stat. § 8C-1, Rule 802 (2023).

One such exception pertains to “statements for purposes of medical diagnosis

or treatment.” N.C. Gen. Stat. § 8C-1, Rule 803(4) (2023). This exception applies to

“[s]tatements made for purposes of medical diagnosis or treatment and describing

medical history, or past or present symptoms, pain, or sensations, or the inception or

general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.” Id.

“Rule 803(4) requires a two-part inquiry: (1) whether the declarant’s

statements were made for purposes of medical diagnosis or treatment; and (2)

whether the declarant’s statements were reasonably pertinent to diagnosis or

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treatment.” State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000) (citations

omitted). “Testimony meeting this test ‘is considered inherently reliable because of

the declarant’s motivation to tell the truth in order to receive proper treatment.’”

State v. Burgess, 181 N.C.App. 27, 35, 639 S.E.2d 68, 74 (2007) (quoting Hinnant, 351

N.C. 277, 286, 523 S.E.2d 663, 669). “In ascertaining the intent of the declarant, ‘all

objective circumstances of record surrounding declarant’s statements’ should be

considered.” State v. Thornton, 158 N.C. App. 645, 650, 582 S.E.2d 308, 311 (2003)

(quoting Hinnant, 351 N.C. 277, 288, 523 S.E.2d 663, 670).

1. State v. McLaughlin

In State v. McLaughlin this Court held statements made by a child victim

during a videotaped interview to a nurse at a child advocacy center were admissible

hearsay under the medical diagnosis and treatment exception. The “interview

reflected the primary purpose of attending to the victim’s physical and mental health

and his safety[.]” State v. McLaughlin, 246 N.C. App. 306, 321 786 S.E.2d 269, 281

(2016).

This Court reasoned the nurse had “explained to [the victim] that he was there

for a checkup[,]” and “she asked [the victim] if he had any health issues[.]” Id. The

nurse “emphasized to [the victim] the importance of knowing what had happened

from beginning to end so they could make sure he did not have any diseases or other

issues that could affect him for the rest of his life.” Id. This Court further stated,

“having the victim relate the details from beginning to end helped the medical

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practitioners [ ] evaluate the extent of the mental and physical trauma to which the

victim was exposed, inquire as to whether the victim was out of danger, and discover

whether other abusers or victims may have been involved.” Id.

2. State v. Thornton

Similarly, in State v. Thornton, this Court held a child’s statements to a social

worker before a medical evaluation were admissible hearsay under the medical

diagnosis and treatment exception because the child had “made her statements to

[the social worker] with the understanding that they would lead to medical diagnosis

or treatment and that the statements were reasonably pertinent to diagnosis or

treatment.” State v. Thornton, 158 N.C. App. 645, 651, 582 S.E.2d 308, 311 (2003).

This Court noted the interview with the social worker and the medical

evaluation occurred on the same day. Id. at 650-51, 582 S.E.2d at 311. The social

worker had “asked [the child] very general questions about her home life, and ‘very

general and nonleading’ questions about any touching that may have occurred.” Id.

The social worker testified the child knew she was in a doctor’s office and was aware

the social worker interviewing her worked with the doctor. Id. The child also was

told she needed to be truthful. Id.

3. State v. Coffey

Likewise, in State v. Coffey, this Court held a child sexual assault victim’s

videotaped interview with a forensic interviewer was admissible hearsay under the

medical diagnosis and treatment exception because the sexual assault victim’s

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“statements were made for the purposes of medical diagnosis or treatment, and the

statements were reasonably pertinent to diagnosis or treatment.” State v. Coffey, 275

N.C. App. 199, 205, 853 S.E.2d 469, 475 (2020).

In Coffey, the “forensic interviewer testified about the standard procedure at

SafeChild, which include[d] conducting a forensic interview and a medical exam for

a child-victim’s diagnosis.” Id. at 204, 853 S.E.2d at 475. In addition, “prior to an

interview with a child-victim, the child-victim is given a tour, so the child knows ‘[it]

is really important for their health, that we are going to talk about today, we need to

kind of know what happened, make sure we are telling the truth, and you are going

to see the doctor today for anything that you are worried about with your body.’” Id.

at 205, 853 S.E.2d at 475. Given the forensic interviewer’s testimony, this Court held

the videotaped interview was properly admitted under Rule 803(4). Id.

4. State v. Hinnant

In contrast, the Supreme Court of North Carolina held in State v. Hinnant that

a child-victim’s statements to a psychologist during an interview were not admissible

hearsay under the medical diagnosis and treatment exception because the statements

“were not reasonably pertinent to medical diagnosis or treatment.” Hinnant, 351

N.C. at 290, 523 S.E.2d at 671.

In Hinnant, the interview was held “approximately two weeks after [the child-

victim] had received her initial medical examination.” Id. The Court did not find

evidence in the record the child-victim was informed of “the medical purpose of the

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interview or the importance of truthful answers.” Id. at 289-90, 523 S.E.2d at 671.

The Court explained the child-victim could not have understood the interview was for

medical purposes because the room the interview was held in was “a ‘child-friendly’

room” instead of a medical environment. Id. at 290, 523 S.E.2d at 671.

5. State v. Waddell

Following Hinnant, the Court also held a child sexual abuse victim’s

statements to a clinical psychologist were not admissible hearsay under the medical

diagnosis and treatment exception because “[t]he interview took place after the initial

medical examination, in a “child-friendly” room, in a nonmedical environment, and

with a series of leading questions.” State v. Waddell, 351 N.C. 413, 418, 527 S.E.2d

644, 648 (2000). The Court noted “the record also lacks any evidence that there was

a medical treatment motivation on the part of the child declarant or that [the clinical

psychologist] or anyone else explained to the child the medical purpose of the

interview or the importance of truthful answers.” Id.

6. State v. Watts

Likewise, in State v. Watts, this Court held testimony from a child’s statements

to an emergency room nurse and two doctors were not admissible hearsay under the

medical diagnosis and treatment exception because no evidence showed the child

“understood she was making the statements to any of the three for medical purposes,

or that the medical purpose of the examination and importance of truthful answers

were adequately explained to her.” State v. Watts, 141 N.C. App. 104, 108, 539 S.E.2d

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37, 40 (2000). The Court reasoned, based on the emergency room nurse’s testimony,

the child did not understand why she was at the hospital or what was happening

when she made statements to the emergency room nurse. See id. The Court also

pointed out the doctors examined the child “three months after her initial medical

examination . . . .” Id.

Here, Helen was aware she would be having a physical medical examination

after the interview and made her statements for the purposes of medical diagnosis or

treatment. Forensic interviewer McKeithan asked Helen if she was “worried or

concerned about anything, [or] scared of anybody?” In response Helen stated, “One

thing I’m scared about is like my dad. My dad doesn’t know it yet. . . . I’m on his

insurance . . . He will get a letter that I’ve been here.” This evidence indicating Helen

was worried about the visit being billed to her father’s health insurance tends to show

Helen was aware she was undergoing a medical examination after the interview.

Helen’s forensic interview occurred immediately before her medical

examination on the same day. McKeithan asked Helen “‘very general and nonleading’

questions” about her relationship with Defendant. Thornton, 158 N.C. App. 645, 650-

51, 582 S.E.2d 308, 311. McKeithan testified Terri Hess’s protocol requires the family

advocate to explain the forensic interview is followed by a medical examination and

for law enforcement to inform the victim that any information collected during the

forensic interview or medical examination may be used as evidence in a criminal case.

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McKeithan also testified, when she spoke with Helen, Helen was aware a medical

exam would follow her interview.

Helen’s statements were reasonably pertinent to her diagnosis and treatment.

McKeithan pointed out the camera to Helen and explained, “I can go back and watch

all the things we talked about because I talk with a lot of kids. I want to keep

everything straight.” McKeithan told Helen, “I . . . need . . . as much detail as you

can give me, ‘cause the whole point of this is so you don’t have to keep talking about

it over and over.”

McKeithan explained to Helen the importance of telling the truth and asked

Helen, “is there anything with your body that you’re concerned about or anything?”

McKeithan also asked Helen if “anything else like this ever happened with anybody

else besides [Defendant]?”, if she and Defendant had similar relationships with other

people, if Defendant ever hurt her body, or if Defendant ever asked for pictures of her

body.

All of McKeithan’s statements and questions “reflected the primary purpose of

attending to [Helen]’s physical and mental health and [her] safety.” McLaughlin, 246

N.C. App. at 321, 786 S.E.2d at 281. Similarly, “having [Helen] relate the details

from beginning to end helped [McKeithan] to evaluate the extent of the mental and

physical trauma to which [Helen] was exposed, inquire as to whether [Helen] was out

of danger, and discover whether other abusers or victims may have been involved.”

Id.

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The trial court did not err by admitting the recording under the statements for

purposes of medical diagnosis or treatment exception to hearsay. Id. Defendant’s

argument is without merit.

V. Ineffective Assistance of Counsel

Defendant argues he was provided ineffective assistance of counsel when his

attorney failed to object to: (1) the admission of State’s Exhibit 3, an undated

photograph of a test strip allegedly taken from Defendant’s phone; and (2) the State’s

alleged improper closing argument asking the jury to consider the photograph as

substantive evidence.

A. Standard of Review

To demonstrate ineffective assistance of counsel, a defendant must show

counsel’s performance was deficient and Defendant was prejudiced. See State v.

Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted). A deficient

performance falls below an objective standard of reasonableness and is so serious it

effectively denies the defendant his due process rights. Id. “[J]udicial review of

counsel’s performance must be highly deferential.” State v. Gainey, 355 N.C. 73, 113,

558 S.E.2d 463, 488 (2002) (citation omitted).

B. Analysis

Counsel’s performance prejudices a defendant only when, “looking at the

totality of the evidence, there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” State

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v. Phillips, 365 N.C. 103, 122, 711 S.E.2d 122, 138 (2011) (citation and quotation

omitted).

There is “a strong presumption that counsel’s conduct falls within the broad

range of what is reasonable assistance.” State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d

334, 346 (1986) (citation omitted). “[W]hen this Court is able to determine that

defendant has not been prejudiced by any alleged ineffectiveness of counsel, we need

not consider whether counsel’s performance was deficient.” State v. Augustine, 359

N.C. 709, 719, 616 S.E.2d 515, 524 (2005) (citations omitted).

1. Admission of Photograph

Defendant argues that his counsel failed to object to the admission of a

photograph of a home vasectomy test, and as a result, he was provided ineffective

assistance of counsel. A defendant is not prejudiced by their counsel’s failure to raise

a claim that would have been unsuccessful. State v. Waring, 364 N.C. 443, 513-14,

701 S.E.2d 615, 659 (2010); State v. Banks, 367 N.C. 652, 653, 766 S.E.2d 334, 336

(2014).

Here, Defendant’s objection to the admission the photograph of a home

vasectomy test would have been unsuccessful. Our General Statutes provide:

Any party may introduce a photograph: video tape, motion

picture, X-ray or other photographic representation as

substantive evidence upon laying a proper foundation and

meeting other applicable evidentiary requirements. This

section does not prohibit a party from introducing a

photograph or other pictorial representation solely for the

purpose of illustrating the testimony of a witness.

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N.C. Gen. Stat. § 8-97 (2023).

Rule 403 of the Rules of Evidence provides: “Although relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” N.C.

Gen. Stat. § 8C-1, Rule 403 (2023).

“The decision whether to exclude evidence under Rule 403 of the Rules of

Evidence is within the discretion of the trial court and will not be overturned absent

an abuse of discretion.” State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005)

(citations omitted). “[T]he trial court’s ruling should not be overturned on appeal

unless the ruling was manifestly unsupported by reason or [was] so arbitrary that it

could not have been the result of a reasoned decision.” State v. Hyde, 352 N.C. 37, 55,

530 S.E.2d 281, 293 (2000) (citation and quotation marks omitted).

The trial court properly acted within its discretion in admitting the

photograph. The photograph was admitted for illustrative purposes only and was

corroborative of Helen’s testimony that Defendant had a vasectomy. The trial court’s

decision was not so arbitrary that it could not have been supported by reason.

Additionally, defense counsel extensively cross-examined Detective Barkley

about the photograph, highlighting the absence of a date on the photograph and the

State’s reliance on one photograph out of many on Defendant’s phone. There is no

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reasonable probability in the absence of the defense counsel’s alleged error, the result

of the proceeding would have been different.

2. Closing Statement

Defense counsel’s failure to object to the State’s closing argument did not

deprive defendant of effective assistance of counsel. To succeed on an ineffective

assistance of counsel argument, the defendant must demonstrate counsel’s failure to

object was both deficient and “infected the trial with unfairness and thus rendered

the conviction fundamentally unfair.” State v. Augustine, 359 N.C. 709, 727, 616

S.E.2d 515, 529 (2005) (quoting State v. Carroll, 356 N.C. 526, 537, 573 S.E.2d 899,

907 (2002)).

The argument presented by the State surrounded Helen’s knowledge of

Defendant’s prior vasectomy. The State argued a fifteen-year-old’s knowledge of her

best friend’s dad’s vasectomy supports the inference the two were involved in a sexual

relationship. The State may, during its closing argument, “create a scenario of the

crime committed as long [as] the record contains sufficient evidence from which the

scenario is reasonably inferable.” State v. Frye, 341 N.C. 470, 498, 461 S.E.2d 664,

678 (1995).

Both the photograph of the vasectomy test strip found on Defendant’s phone

and Helen’s testimony of her knowledge of the vasectomy were admitted into evidence

at the time of the State’s closing argument. An adequate evidentiary basis supported

the State’s argument.

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Even excluding the vasectomy test strip, Helen’s testimony was properly

admitted and supported the State’s argument. This supplemental source of evidence

indicating Helen was aware of Defendant’s purported vasectomy tends to show it was

unlikely an objection to the State’s arguments would have materially influenced the

verdict or prejudiced Defendant. Defendant has failed to show his counsel’s

performance was deficient or prejudicial. Defendant was not deprived of his right to

effective assistance of counsel. See id.

VI. Conclusion

The trial court did not err by admitting the Terrie Hess Center’s video

interview of Helen under the “statements for purposes of medical diagnosis or

treatment” exception to hearsay. Defendant was not prejudiced by any purported

ineffective assistance of counsel.

Defendant received a fair trial, free from prejudicial errors he preserved and

argued on appeal. We discern no error in the jury’s verdicts or in the judgments

entered thereon. It is so ordered.

NO ERROR.

Chief Judge DILLON and Judge HAMPSON concur.

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