NO. COA13-1022

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Onslow County

No. 10 CRS 52727

COREY DINAN

Appeal by defendant from judgments entered 8 March 2013 by 

Judge Jack W. Jenkins in Onslow County Superior Court. Heard in 

the Court of Appeals 17 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

David Gordon, for the State.

James Goldsmith, Jr. for defendant.

ELMORE, Judge.

Corey Dinan (defendant) appeals his convictions of 

intentional child abuse resulting in serious bodily injury under 

N.C. Gen. Stat. § 14-318.4(a3) and of assault on a child under 

the age of twelve in violation pursuant to N.C. Gen. Stat. § 14-

33(c)(3). We hold that defendant received a trial free from 

error in part. Defendant’s final issue is dismissed without 

prejudice and allows defendant the opportunity to file 

appropriate motions with the trial court.
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I. Factual Background

Abby1, the victim in this case, is the biological daughter 

of defendant and Sarah F., defendant’s now ex-wife. Abby was 

born 17 February 2010 and was approximately six-weeks-old at the 

time of the requisite child-abuse incident. At defendant’s 

trial, Ms. F. testified that on 4 April 2010, defendant gave 

Abby her early-morning bottle. When Ms. F. woke, she went to 

the family room and saw Abby in her “princess swing” and 

defendant sitting “Indian style” on the floor. Abby was 

struggling to breathe. Ms. F. asked, “what’s wrong with my 

baby?” Defendant responded, “I don’t know. I don’t know. 

She’s been like that all morning.” Ms. F. demanded that they 

take Abby to Onslow Memorial Hospital (Onslow). Abby was kept 

over-night at Onslow before being transferred to Pitt Memorial 

Hospital (now Vidant) for additional treatment.

 Dr. Coral Steffey (Dr. Steffey), pediatrician and expert

in the field of pediatrics and child abuse, testified that on 5 

April 2010 she was called to Vidant to consult on Abby’s 

condition. She testified that Abby was transferred from Onslow 

to Vidant for additional treatment after physicians discovered 

that Abby’s oxygen saturations were low, that she was having 

 

1 Pseudonyms are used throughout the opinion to protect the 

identities of minors and other persons involved in this action.
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difficulty breathing, that she was dehydrated, and that x-rays 

showed multiple rib fractures and a hemothorax. In fact, Abby 

had 24 identifiable rib fractures, both new and healing. X-rays 

taken of Abby’s ribs 17 days prior did not reveal any rib

fractures. Accordingly, Dr. Steffey opined that between 18 

March and 4 April 2010, someone injured Abby on at least two 

occasions to the point that she sustained multiple rib 

fractures. Dr. Steffey read the opinion from her medical report 

into the record, as follows: “There is no medical explanation 

for Abby’s constellation of injuries, which include healing and 

acute rib fractures with hemothorax, intra-cranial hemorrhage, 

subconjunctival hemorrhages and bruising to her ankle. No 

history of trauma has been provided to explain Abby’s injuries. 

The constellation of inexplicable injuries is consistent with a 

diagnosis of child physical abuse with inflicted injuries, on 

more than one occasion.”

Elizabeth Pogroszewski, social worker for Onslow County 

Department of Social Services, testified that on 4 April 2010 

she asked defendant his opinion as to what contributed to Abby’s 

injuries. He responded, “[I] must have held her too tight.” 

Additionally, four officers with the Jacksonville Police 

Department testified at trial. Officer Timothy Sawyer testified 
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that defendant made a written statement in which he admitted to 

holding Abby too tight. Detective Anthony Ramirez testified 

that defendant demonstrated for him how he picked up Abby and 

held her with his elbows locked. Detective Trudy Allen 

testified that when she asked defendant how Abby was injured, he 

made “a shaking motion, just as if he would shake up the 

contents of a canister.” At that point, she arrested defendant 

for felony child abuse. Officer Jason Lagana testified that

defendant made the following spontaneous statement to him: “I 

guess you get charged for holding your kid too tight.”

At trial, defendant sought to exclude the testimony of 

Brent Cross, defendant’s friend and fellow Marine, and Megan 

Dinan, defendant’s former ex-wife. After voir dire, the trial 

court denied defendant’s motions in limine, finding that the 

proffered testimony was relevant as it went to the issue of 

“knowledge, absence of mistake and intent.” Further, the trial 

court found that the probative value of the 404(b) testimony was 

not substantially outweighed by its prejudicial effect.

Brent Cross testified that in 2006 he was helping defendant 

with a home-improvement project when defendant’s then wife, 

Megan Dinan, left the couple’s napping infant son in defendant’s 

care. When the baby woke crying, Mr. Cross testified that 
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defendant became “agitated.” Defendant went to the baby’s room 

and, through the monitor, told Mr. Cross, “I got the baby now. 

You can go ahead and shut the baby monitor off. I got it.” Mr. 

Cross had an “instinct” to keep the monitor on. When the baby 

was picked up, Mr. Cross testified that he heard the baby’s cry 

become “hysterical” and he heard defendant’s tone change from 

“upset” to “just anger.”

Megan Dinan testified that she and defendant had two

biological sons together, Ian and Sam. However, after 

divorcing, defendant relinquished his parental rights. She 

testified that when Ian was approximately eight-weeks old, he 

woke one morning with “one tiny little bruise” on his chest. 

Defendant was responsible for feeding Ian during the night. The 

following morning, Ian woke “covered in bruises, head to toe.

He was so bruised that his earlobes were bruised.” Ian was 

hospitalized and diagnosed as having a virus, which doctors 

thought could account for his severe bruising. After Ian was 

released from the hospital, Ms. Dinan noted subsequent bruising 

in the shape of finger prints on Ian. Ms. Dinan testified that 

when she confronted defendant, he responded, “it is my 

handprint, [] I was holding him last night and I think I held 

him too tight.”
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Defendant testified on his own behalf at trial. He alleged 

that he never “mistreated” Abby on 4 April 2010 or any time 

prior. He admitted to accidentally treating her like a one-year 

old instead of a six-week old. After the defense rested, the

jury found defendant guilty of intentional child abuse resulting 

in serious bodily injury and of assault on a child under the age 

of twelve. The trial court sentenced defendant on 8 March 2013 

to a term of 73 months to 97 months imprisonment, plus 60 days.

II. Analysis

A. Rule Violation

Initially, we direct defense counsel’s attention to Rule 28 

of the North Carolina Rules of Appellate Procedure. Rule 

28(b)(4) requires counsel to include “a statement of the grounds 

for appellate review. Such statement shall include citation of

the statute or statutes permitting appellate review.” N.C.R. 

App. P. 28(b)(4). In his brief, defense counsel provides:

This Court is called upon to determine 

whether [defendant] was deprived of his 

fundamental right to a fair trial where 

evidence of uncharged prior bad acts were 

introduced to establish criminal propensity, 

and where the trial court failed to make a 

determination that the probative value 

outweighed any prejudice. . . . Further, 

this Court is called upon to determine 

whether [defendant] received ineffective 

assistance of counsel[.]
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Defense counsel has violated Rule 28(b)(4). The above

“statement” fails to reference any statute which would allow for 

appellate review—defense counsel has merely reiterated the 

issues he raises on appeal. Here, defense counsel is licensed 

in Florida. Nevertheless, we urge defense counsel and all 

counsel to be mindful of our Rules of Appellate Procedure.

Defendant first argues that the trial court erred in 

admitting testimony relating to his “uncharged prior bad acts” 

under Rule 404(b). We are unable to address the merits of this 

issue because defendant offers no clear or reasoned argument in 

support of his position as required by Rule 28(b)(6). See 

N.C.R. App. P. 28(b)(6). Specifically, in defendant’s first 

issue he fails to direct us to the testimony that he argues it 

was error for the trial court to admit. We assume that 

defendant challenges the testimony of Mr. Cross and Ms. Dinan 

pursuant to Rules 404(b) and 403, as these witnesses are

referenced in this issue. Further, defendant’s argument is 

presented in a nonsensical manner. At the very least, defendant 

is required to direct us to the challenged testimony—it is not 

this Court’s duty to craft defendant’s argument for him. 

Accordingly, defendant’s first argument is abandoned on appeal 

pursuant to Rule 28(b)(6).
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B. Admission of 404(b) Evidence

Alternatively, based on defendant’s recitation of the facts 

and a review of the transcript, we assume arguendo that in his 

first issue, defendant is objecting to the admission of the 

unfavorable character evidence offered by Mr. Cross and Ms. 

Dinan. Nevertheless, we remain unable to address the merits as 

defendant has failed to preserve this issue for our review.

“[T]o preserve for appellate review a trial court’s 

decision to admit testimony, objections to [that] testimony must 

be contemporaneous with the time such testimony is offered into 

evidence and not made only during a hearing out of the jury’s 

presence prior to the actual introduction of the testimony.” 

State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010)

(citations and quotations marks omitted). At trial, defendant 

did not object to the admission of what we believe constitutes 

the challenged testimony of Mr. Cross and Ms. Dinan. Therefore, 

he did not preserve the issue of the admissibility of this

testimony for our review. Id.

Failure to properly preserve an argument restricts this 

Court’s review on appeal to plain error. However, Rule 10(a)(4) 

states that such review is only available “when the judicial 

action questioned is specifically and distinctly contended to 
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amount to plain error.” N.C.R. App. P. 10(a)(4). In his brief, 

defendant does not ask this Court to review the issue under the 

plain error standard. When the State noted defendant’s failure 

to argue plain error in the State’s brief, defendant attempted 

to cure this deficiency by mentioning plain error in defendant’s

reply brief. However, a reply brief is not an avenue to correct 

the deficiencies contained in the original brief. See N.C.R. 

App. P. 28(b)(6); see also State v. Davis, 202 N.C. App. 490, 

497, 688 S.E.2d 829, 834 (2010) (“[B]ecause [d]efendant did not 

‘specifically and distinctly’ allege plain error as required by 

[our appellate rules], [d]efendant is not entitled to plain 

error review of this issue.”).

C. Scope of Prosecutor’s Cross-Examination

Defendant next contends that the prosecutor’s improper 

cross-examination deprived him of a fair trial. We are not 

persuaded that the prosecutor questioned defendant in an 

unreasonable manner.

Generally, “[t]he scope of cross-examination . . . is 

within the sound discretion of the trial court, and its ruling 

thereon will not be disturbed absent a showing of abuse of 

discretion.” State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 

363, 370 (1988) (citation omitted). However, here defendant 
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argues that we should review this issue under the plain error 

standard of review. We agree. As such, defendant “must 

demonstrate that a fundamental error occurred at trial.” State 

v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “To 

show that an error was fundamental, a defendant must establish 

prejudice that, after examination of the entire record, the 

error had a probable impact on the jurys finding that the 

defendant was guilty.” Id. (citation and quotation omitted).

In the instant case, defendant takes issue with the 

prosecutor’s line of questioning in three specific instances2. 

First, he contends that the prosecutor inappropriately tried to 

“place him at odds” with Sarah F. by asking, “[y]ou don’t 

believe Sarah caused these injuries at all, do you?” and “[d]o 

you believe that Sarah F. caused these injuries to Abby?” 

Second, defendant argues that it was error for the prosecutor to 

“challenge[] defendant to call [Detective Allen] a liar[.]” We 

assume that defendant is referencing the following question: 

“So Detective Allen, then, is lying about you [showing her how 

you shook Abby]?” Defendant replied, “I wouldn’t say lie, just 

changing facts about who said what.” Third, defendant argues 

 

2 Defendant also argues that the prosecutor improperly questioned 

Megan Dinan. However, we cannot address the merits of this 

argument as counsel’s argument lacks sufficient specificity.
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that it was inappropriate for the prosecutor to ask, “how long 

are you going to wait with that infant before you begin holding 

him or her too tightly?” However, as to this last question, the 

record shows that the trial judge sustained defense counsel’s 

objection to the question and instructed the jury to disregard 

it. In addition, the prosecutor withdrew the question. Thus, 

defendant’s argument as to this question is moot.

Further, defendant makes no argument as to how he was 

prejudiced by these questions; he merely contends that he was 

“highly prejudiced by this impossible questioning[.]” Without a 

showing of prejudice, defendant cannot establish that any 

alleged error was a fundamental error. See State v. Cummings, 

352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 

U.S. 997, 121 S. Ct. 1660, 149 L. Ed. 2d 641 (2001) (“[An] empty 

assertion of plain error, without supporting argument or 

analysis of prejudicial impact, does not meet the spirit or 

intent of the plain error rule.”). Therefore, defendant’s 

argument must be overruled. Assuming arguendo that defendant 

made a showing of prejudice, defendant has not convinced this 

Court that absent the prosecutor’s questions, the jury probably 

would have reached a different verdict. The record contains 

additional evidence of defendant’s guilt.
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D. Ineffective Assistance of Counsel

Lastly, defendant contends that defense counsel was 

ineffective because he 1) completely misapprehended the law with 

respect to the element of “intent,” 2) elicited damaging 

testimony from the State’s witnesses and defendant, and 3) 

permitted “prosecutorial misconduct” by failing to object to the 

prosecutor’s questions. Given our conclusion in section “C,”

defendant’s third contention moot. We dismiss defendant’s 

remaining arguments without prejudice to defendant’s right to 

file appropriate motions in the trial court.

When raising claims of ineffective assistance of counsel, 

the “accepted practice” is to bring these claims in postconviction proceedings, rather than on direct appeal. State v. 

Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985). 

Here, defendant has “prematurely asserted his ineffective 

assistance of counsel claim” by directly appealing to this 

Court. State v. Stroud, 147 N.C. App. 549, 556, 557 S.E.2d 544, 

548 (2001) (quotation and citation omitted).

Defendant raises potential questions regarding defense 

counsel’s trial strategy. However, it is unclear from 

defendant’s brief what specific conduct he challenges as being 

ineffective. As such, we are unable to address the merits of 
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defendant’s argument. To best resolve this issue, an 

evidentiary hearing available through a motion for appropriate 

relief is our suggested mechanism. Id.; see also State v. Ware,

125 N.C. App. 695, 697, 482 S.E.2d 14, 16 (1997) (dismissing the 

defendant’s appeal where the issues could not be determined from 

the record and concluding that “[t]o properly advance these 

arguments, defendant must move for appropriate relief pursuant 

to G.S. 15A–1415[ ] and G.S. 15A-1420[ ]”). “Upon the filing of 

a motion for appropriate relief, the trial court will determine 

the motion and make appropriate findings of fact.” Ware, 125 

N.C. App. at 697, 482 S.E.2d at 16.

III. Conclusion

In sum, we deem defendant’s first issue abandoned on 

appeal. Assuming arguendo that it is not abandoned, defendant 

failed to properly preserve it for our review. We overrule 

defendant’s second issue that he was prejudiced by the 

prosecutor’s line of questioning. Finally, defendant’s 

ineffective assistance of counsel claim is dismissed without 

prejudice so that he may file appropriate motions in the trial 

court.

No error in part; dismissed in part.

Chief Judge MARTIN and HUNTER, Robert N., concur.