Heard in the Court of Appeals February 4, 2015
Rowan County, Nos. 11 CRS 53241-42, 13 CRS 1777.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.
Kevin P. Bradley for defendant-appellant.
Judges STEELMAN and INMAN concur.
Appeal by defendant from judgment entered 31 October
2013 by Judge Hugh B. Lewis in Rowan County Superior Court.
Defendant Charles Gilbert Gillespie appeals from convictions stemming from a brutal attack and sexual assault on a female victim. Gillespie repeatedly punched the victim in the face, threatened her with a kitchen knife, forced her to submit to anal sex, and choked her when she attempted to fight him off. A jury convicted Gillespie of assault inflicting serious injury by strangulation, second degree kidnapping, and second degree sexual offense. The trial court sentenced him to 146-185 months in prison.
On appeal, Gillespie argues that it was either plain error or ineffective assistance of counsel for the trial court to admit without objection the testimony of a law enforcement officer who described the victim's demeanor. He also argues that it was either plain error or ineffective assistance of counsel for the trial court to strike without objection the testimony of a defense witness who stated that the alleged crimes " just don't fit [Gillespie's] M.O." Finally, Gillespie argues that his sentence should be vacated and remanded because the judgment form mistakenly lists a conviction for assault with a deadly weapon, a charge of which he was acquitted.
For the reasons set forth below, we hold that Gillespie did not receive ineffective assistance of counsel because his trial counsel's failure to object to the officer's testimony and failure to object to the striking of the defense witness's testimony did not prejudice him. We likewise hold that the trial court's admission and striking of that testimony did not constitute plain error. Because there is a clerical error on the " Additional File No.(s) and Offense(s)" form attached to the judgment--which did not affect Gillespie's sentence--we remand for correction of the clerical error in the judgment.
Facts and Procedural History
Gillespie and Jane Doe had known each other since around 1994 or 1995 and previously had a consensual sexual relationship. On 16 May 2011, Ms. Doe's neighbor gave Ms. Doe and Gillespie a ride to the grocery store to buy food and beer. Gillespie and Ms. Doe then returned to her apartment where they drank the beer. Ms. Doe testified that Gillespie became angry when he realized that there was no more beer in the refrigerator. He told her that he was going to " f__ [her] in [her] a--" and began " punching" and " smacking" her in the face. Ms. Doe attempted to get away from Gillespie by running into the bathroom. She got in the shower to clean the blood off of her face. Gillespie followed her into the bathroom, pulled the shower curtain back, and made her take a shower while he watched.
When Ms. Doe finished showering and left the bathroom wearing only a towel, she saw Gillespie " come walking towards [her] with three knives, like a butcher knife and two small steak knives." He said, " Don't think I won't do it to you." Ms. Doe ran back into the bathroom and locked the door, but Gillespie broke through the door. Once inside the bathroom, Gillespie again hit Ms. Doe.
Gillespie then put the knives away and took Ms. Doe into the bedroom. Gillespie told her to take her towel off and get on the bed. She complied because she was " scared for [her] life." Gillespie got cocoa butter and baby oil from the bathroom and rubbed them on his penis. He then started having anal sex with Ms. Doe against her will. She " told him to stop," that " he was hurting [her]," but he told her to " shut up." Ms. Doe kicked him in the chest to get him off of her, but he pulled her onto the floor and started choking and hitting her. When ...