Opinion
No. COA14–776.
04-07-2015
STATE of North Carolina v. James Daniel MORGAN, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sherri Horner Lawrence, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sherri Horner Lawrence, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgments convicting him of misdemeanor stalking, two counts of statutory rape/sex offense with the defendant being at least six years older than the victims, and indecent liberties with a child. For the following reasons, we remand for resentencing.
I. Background
On or about 5 December 2011, defendant was indicted for misdemeanor stalking (“stalking”). On or about 20 May 2013, defendant was indicted for two counts of statutory rape/sex offense with the defendant being at least six years older than the victims (“statutory rape”) and indecent liberties with a child (“indecent liberties”). The stalking and one count of statutory rape involved a minor named Josh ; the remaining charges involved a minor named Jake. Between May 2013 and January 2014, the State filed three motions to amend its indictments. A jury determined defendant was guilty of all four of the charges against him along with various aggravating factors. On or about 20 February 2014, the trial court entered judgments convicting defendant of statutory rape and stalking and sentencing him in the aggravated range followed by a consecutive aggravated sentence for defendant's other conviction of statutory rape and arresting judgment for defendant's indecent liberties conviction. Defendant appeals.
Pseudonyms will be used to protect the identity of the minors involved.
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II. Amendments to Indictments
Defendant first contends that
[t]he trial court erred by allowing the State's motion to amend the indictment in 11 CRS 66220 to change the date range of the alleged offense. Allowing the motion to amend after defense counsel had cross-examined [Josh] regarding the dates of any sexual acts involving ... [defendant] based on the date range alleged prior to the amendment deprived ... [defendant] of his constitutional right to sufficient notice of the charges against him in order to prepare his defense.
(Original in all caps.)
A. Standard of Review
This Court reviews a trial court's granting of the State's motion to amend an indictment de novo.A change of the date of the offense is permitted if the change does not substantially alter the offense as alleged in the indictment. Where time is not an essential element of the crime, an amendment relating to the date of the offense is permissible since the amendment would not substantially alter the charge set forth in the indictment.
State v. Pierce,––– N.C.App. ––––, ––––, 766 S.E.2d 854, 858 (2014) (citations and quotation marks omitted).
B. The State's Amendments
On or about 20 May 2013, defendant was indicted for two counts of statutory rape pursuant to North Carolina General Statute § 14–27.7A(a) ; one count had the file number 11CRS066220, with the offense occurring between 24 May 2011 and 24 October 2011. On 12 December 2013, the State filed a motion to amend which stated:
1. In 11CRS66220, the Defendant is charged with Statutory Rape or Sex Offense of a Person Who is 13, 14, or 15 Years Old by a Defendant Who Is at Least Six Years Older Than the Victim (N.C.G.S.14–27.7A(A) [) ];
2. The State intends to offer evidence that the offense occurred within the range of 9/15/10–3/15/11;
3. In State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984), the court held that an indictment may be amended if the amendment does not substantially alter the charge. At trial the court allowed an amendment of the date of offense of a murder indictment from “5 February 1983” to “17 December 1982” because the date of the offense was not an essential element of the offense and the change of date did not substantially alter the charge;
4. In State v. Cameron, 83 N.C.App. 69, 349 S.E.2d 327 (1986), the court held that there was no error to allow the state to amend the date of offense in an incest indictment at the close of the state's evidence when the change does not alter the charge against the defendant, does not unfairly surprise the defendant and does not prevent the defendant from presenting a defense. Similarly, in Price,the court said that the variance as to time becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense; and,
5. The amendment would not substantially alter the charge against the Defendant, nor unfairly surprise the Defendant, nor deprive the Defendant of an opportunity to prepare a defense.
On 30 January 2014, the State filed another motion to amend this time stating:
1. In 11CRS66220, the Defendant is charged with Statutory Rape or Sex Offense of a Person Who Is 13, 14, or 15 Years Old by a Defendant Who Is at Least Six Years Older Than the Victim (N.C.G.S.14–27.7A(A) [) ];
2. The State intends to offer evidence that the offense occurred within the range of 9/15/09–3/15/10 and that the victim was a person of the age of 13, 14, or 15[.]
The State then again cited the same two cases it had cited in its 2013 motion and contended that “[t]he amendment would not substantially alter the charge against the Defendant, nor unfairly surprise the Defendant, nor deprive the Defendant of an opportunity to prepare a defense.”
Before defendant's trial began on 17 February 2014, the State clarified that it was proceeding on its 2014 motion which the trial court allowed. However, after Josh testified the State orally made a motion to amend the dates to those in its 2013, rather than its 2014 motion; the trial court granted the in-court amendment over defendant's objections.
C. When Amendments Are Allowed
Our Supreme Court has stated,
N.C. Gen.Stat. § 15A–923(e) which provides that A bill of indictment may not be amended. This statute fails to include a definition of the word amendment. The North Carolina Court of Appeals has ruled upon the interpretation of this subsection in State v. Carrington, 35 N.C.App. 53, 240 S.E.2d 475, cert. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). That court defined the term amendment to be any change in the indictment which would substantially alter the charge set forth in the indictment. We believe the Court of Appeals, in its diligent effort to avoid illogical consequences, correctly interpreted this statute's subsection.
This change of the date of the offense, as permitted by the trial court, did not amount to an amendment prohibited by N.C. Gen.Stat. § 15A–923(e), because the change did not substantially alter the charge set forth in the indictment. The change merely related to time, which in this particular case was not an essential element of the charge.
Generally, when time is not of the essence of the offense charged, an indictment may not be quashed for failure to allege the specific date on which the crime was committed. This holding is in accord with N.C. Gen.Stat. § 15–155, which provides as follows:
Defects which do not vitiate.—No judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed or reversed for the want of averment of any matter unnecessary to be proved nor for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened.
The State may prove that an offense charged was committed on some date other than the time named in the bill of indictment. Thus, pursuant to section 15–155, it was not necessary for the district attorney in the case sub judiceto move to change the indictment date. Although not necessary, the correction was proper.
A variance as to time, however, becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense.
State v. Price, 310 N.C. 596, 598–99, 313 S.E.2d 556, 558–59 (1984) (citations, quotation marks, and ellipses omitted). Thus, we must consider whether the State's amendments “substantially alter[ed] the charge set forth in the indictment” or if it “deprive[d] ... defendant of an opportunity to adequately present his defense.” Id.
1. No Substantial Change to the Charge
North Carolina General Statute § 14–27.7A(a) provides,
A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person, except when the defendant is lawfully married to the person.
N.C. Gen.Stat. § 14–27.7A(a) (2009).
Defendant's date of birth is 16 March 1975. Josh's date of birth is 16 June 1995. Thus, no matter when the incident occurred, defendant would always be more than six years older than Josh and an adult as all of the proposed offense dates were between 2009 and 2011. See generallyN.C. Gen.Stat. § 14–27.7A(a). The State's date ranges offered in the indictments and motions to amend begin at the earliest on 15 September 2009; at that time Josh would have been 14 years old. The latest date proposed by the State for the offense was 24 October 2011; at that time Josh would have been 16 years old.
However, the 24 October 2011 date was from the indictment which had an offense date ranging between 24 May 2011 and 24 October 2011. In 24 May of 2011, Josh would have been 15 years old. Thus, from the indictment and the motions thereafter, defendant would have known to prepare a defense addressing the elements of North Carolina General Statute § 14–27.7A(a) regarding the child being 13, 14, or 15 years old for the time period of 24 May 2011, the first date in the indictment, until 15 June 2011, the day before Josh's birthday. Each of the amendments to the indictment covered a time period during which Josh would have been under 16 years old. As most of the date range of the indictment and all of the amendments cover a time period when defendant was an adult, at least six years older than Josh, and Josh was between the ages of 13 and 15, we do not find that any of the proposed amendments “substantially alter [ed] the charge set forth in the indictment[.]” Pierce,––– N.C.App. at ––––, 766 S.E.2d at 858. 2. Defendant Was Not Deprived of His Ability to Prepare a Defense
In a similar case the defendant took
issue with the dates in both counts of the indictment, arguing that there was a fatal variance between the allegations contained in the indictment and the evidence introduced at trial. The evidence introduced at trial showed that at least one of the offenses occurred in December, between 1 December and 25 December 1998, as opposed to on or between 01/04/1999, through 01/27/1999 as alleged in the indictment. The court, upon motion by the State, allowed an amendment of the indictment to conform to the evidence.
State v. McGriff, 151 N.C.App. 631, 635, 566 S.E.2d 776, 779 (2002) (quotation marks omitted). This Court stated,
Courts are lenient in child sexual abuse cases where there are differences between the dates alleged in the indictment and those proven at trial. Our Supreme Court has stated that in the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child's uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence. Leniency has been allowed in cases involving older children as well. Unless the defendant demonstrates that he was deprived of his defense because of lack of specificity, this policy of leniency governs. It is sufficient for conviction that the jury is satisfied upon the whole evidence that each element of the crime has been proved beyond a reasonable doubt.
In State v. Blackmon, 130 N.C.App. 692, 696–97, 507 S.E.2d 42, 45 (1998), this Court stated that
this Court has observed more generally that the date given in the bill of indictment is not an essential element of the crime charged and that therefore the fact that the crime was committed on some other date is not fatal. In that same vein, we have also stated that a variance between allegation and proof as to time is not material where no statute of limitations is involved.
In Blackmon,the defendant was convicted of eight counts of first-degree sexual offense of a minor and taking indecent liberties with a minor. On appeal, the defendant argued that the trial court erred in denying his motion to dismiss the indictments for lack of specificity. Specifically, the defendant argued that he was denied an opportunity to raise an alibi defense because the indictments listed the dates of the offenses as occurring between 1 January and 12 September 1994. In finding no error, the BlackmonCourt stated that
in a case in which the minor child testified at trial that the sexual acts and indecent liberties committed by defendant occurred when she was seven years old and that some of those acts happened when it was cold outside and some when it was warm outside, any variance between the indictments brought against defendant and the proof presented at trial is not fatal to the propriety of the indictments brought by the State.
Id.at 635–36, 566 S.E.2d at 779 (citations, quotation marks, ellipses, and brackets omitted).
The Court then went on to note that as to the defendant in that case,
defendant argues that the change in dates prejudiced his ability to present a potential alibi defense. However defendant offered no alibi defense for the dates originally alleged in the indictment, nor for the December dates shown by the evidence. In fact, defendant presented no evidence at all.
The State's evidence tended to show that K.S.W. was unsure of the exact dates that defendant engaged in sexual acts with her. However, she thought it was before she went to Florida during her school Christmas break in 1998. Evidence also tended to show that defendant tried to force K.S.W. to perform oral sex on him after that Christmas break. This evidence substantially corresponds with the dates in the indictment.
Time variances do not require dismissal if they do not prejudice a defendant's opportunity to present an adequate defense. A defendant suffers no prejudice when the allegations and proof substantially correspond; when defendant presents alibi evidence relating to neither the date charged nor the date shown by the State's evidence. Defendant's contention that the variance between the dates in the indictment and the evidence presented at trial was fatal and deprived him of a potential alibi defense has no merit.
Id.at 636–37, 566 S.E.2d at 778–79 (citations, quotation marks, and brackets omitted).
Here, as in McGriff,defendant “offered no alibi defense” and “[i]n fact, defendant presented no evidence at all.” Id.at 636, 566 S.E.2d at 779. Furthermore, here, the trial court also stated,
I will give the defendant and counsel as much time as he needs within reason to prepare to allow the witness to be recalled, not as your witness, obviously, but as State's witness, and be cross examined with regards to these changes. If after talking with your client you believe it is necessary and important to do so. And I'll give you whatever time you need to both discuss that with your client and prepare as well.
Defendant chose not to recall the witness or present any other evidence on his behalf. As such, we do not believe defendant was deprived of his ability to present his case. This argument is overruled.
III. Aggravating Factor
Defendant next contends that “the evidence was insufficient to support the ‘took advantage of a position of trust or confidence’ aggravating factor for sentencing purposes.” (Original in all caps .)
In order to be valid, an aggravating factor must be supported by sufficient evidence to allow a reasonable judge to find its existence by a preponderance of the evidence. The trial court should be permitted wide latitude, however, in arriving at the truth as to the existence of aggravating and mitigating factors, for it alone observes the demeanor of the witnesses and hears the testimony.
State v. Hayes, 102 N.C.App. 777, 781, 404 S.E.2d 12, 15 (1991) (citation omitted). The State contends that “[b]ecause defendant did not raise this issue at trial, appellate review should be denied.” However, defendant need not object to preserve an argument regarding aggravating factors. State v. Borders, 164 N.C.App. 120, 124, 594 S.E.2d 813, 816 (2004) (“Defendant also assigns error to the trial court's finding that there was evidence to support three non-statutory aggravating factors, which were used to sentence defendant in the aggravated range. Initially, we note that the State argues defendant did not object to the non-statutory aggravating factors at trial and therefore, should be denied the opportunity to assign error to them on appeal. However, our Supreme Court has held that preserving this question for appellate review by objecting is unnecessary because it is clear that a defendant does not want the court to find an aggravating factor and the court knows or should know it. We therefore address defendant's assigned error.” (citation, quotation marks, and brackets omitted)).
“The decision to depart from the presumptive range and sentence a defendant in the aggravated range is in the discretion of the court.” Id. North Carolina General Statute § 15A–1340.16(d)(15) provides that one aggravating factor is if “[t]he defendant took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense .” N.C. Gen.Stat. § 15A–1340.16(d) (2013). Our Supreme Court has stated as to this factor,
a finding of this aggravating factor did not require that the victim consciously regard the defendant as one in whom she placed her trust or confidence. We held that such a finding depended instead upon the existence of a relationship between the defendant and victim generally conducive to reliance of one upon the other. Our courts have upheld a finding of the trust or confidence factor in very limited factual circumstances.
State v. Mann, 355 N.C. 294, 318–19, 560 S.E.2d 776, 791 (citations, quotation marks, and brackets omitted), cert. denied,537 U.S. 1005, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002).
Defendant directs our attention to State v. Blakeman,where this Court determined there was not sufficient evidence of the aggravating factor of “trust or confidence” between a 13–year–old girl and her friend's stepfather because
[t]he evidence was undisputed that Kathy required her mother's permission to spend the night with Ann, and had spent the night there no more than ten times. There was no evidence that Kathy's mother had arranged for Defendant to care for Kathy on a regular basis, or that Defendant had any role in Kathy's life other than being her friend's stepfather. There was no evidence suggesting that Kathy, who was thirteen-years-old and lived nearby, would have relied on Defendant for help in an emergency, rather than simply going home. There was no evidence of a familial relationship between Kathy and Defendant, and no evidence that Kathy and Defendant had a close personal relationship or that Kathy depended or relied on Defendant for any physical or emotional care. The evidence showed only that Kathy trusted Defendant in the same way she might trust any adult parent of a friend.
202 N.C.App. 259, 270–71, 688 S.E.2d 525, 532 (quotation marks omitted), disc. review denied,364 N.C. 242, 698 S.E.2d 656 (2010).
Here, however, Josh testified that he hung out almost every weekend with defendant. Defendant and Josh's time together included sleepovers and a camping trip, and defendant gave Josh gifts. Defendant advised Josh to simply tell his parents that he was “at a friend's house” and Josh complied. In this case, the defendant is not merely a “parent of a friend[,]” but is actually the “friend.” Contrast id.But Jake testified that he had only been to defendant's house overnight once. There was no evidence of a relationship of trust or confidence between defendant and Jake. The testimony indicates that Jake was friends with Josh, and Jake's limited contact with defendant was because of his relationship with Josh. As such, we conclude that there was sufficient evidence of the aggravating factor of “trust or confidence” as to Josh, but not as to Jake. See id.Therefore, we remand for resentencing as to Jake only, file number 11CRS066221.
III. Jury Instructions
Defendant next contends that “the trial court committed plain error by giving jury instructions in the sentencing phase of the trial which failed to adequately tell the jury what facts it needed to find in order to find the position of trust or confidence aggravating factor.” (Original in all caps.) (Quotation marks omitted.) As we have already determined there was insufficient evidence to support the aggravating factor of “trust or confidence” as to Jake, we need only review the instructions as applicable to the conviction regarding Josh.
Plain error with respect to jury instructions requires the error be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected. Further, in deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.
State v. Tadeja,191 N.C.App. 439, 446, 664 S.E.2d 402, 408 (2008) (citations and quotation marks omitted). In light of the fact that we have already determined there was sufficient evidence to support the aggravating factor of “trust or confidence” as to Josh, we do not believe any error alleged in the jury instructions by defendant would have “probably” resulted in “a different verdict” or that any such alleged error was “a miscarriage of justice.” Id.As such, this argument is overruled.
IV. Charge Conference
Lastly, defendant contends that “the trial court committed reversible error by failing to conduct a charge conference for the sentencing phase.” (Original in all caps.) Defendant directs our attention to State v. Hill,which addresses aggravating factors in non-capital cases, such as this one, wherein this Court found material prejudice and mandated that defendant receive a new sentencing hearing where the trial court neither held a charge conference nor gave defendant the opportunity to object after it had instructed the jury. See Hill,––– N.C.App. ––––, 760 S.E.2d 85, 88–90, disc. review denied,––– N.C. ––––, 766 S.E.2d 637 (2014). However, after defendant filed this appeal, this Court has expounded on Hill:
Defendant's final argument on appeal is that the trial court reversibly erred by failing to conduct a charge conference as required by statute before instructing the jury during the penalty phase of the proceedings. We agree that the trial court failed to fully comply with the applicable statute, but we hold that defendant has failed to show material prejudice.
Although defendant did not request a charge conference before the trial court instructed the jury on aggravating factors during the penalty phase, and although defendant raised no objection at trial on this ground, this issue is properly before us. Holding a charge conference is mandatory, and a trial court's failure to do so is reviewable on appeal even in the absence of an objection at trial.
N.C. Gen.Stat. § 15A–1231(b) (2013) provides:
Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury.
In Hill,this Court held that the statutory mandate in section 15A–1231(b) requires the trial court to hold a charge conference, regardless of whether a party requests one, before proceeding to instruct the jury on aggravating factors during the penalty phase of a non-capital case.
We agree with defendant that the trial court did not conduct a full charge conference here....
....
....As the HillCourt noted, the purpose of a charge conference is to allow the parties to discuss the proposed jury instructions to insure that the legal issues are appropriately clarified in a manner that assists the jury in understanding the case and reaching the correct verdict. Here, prior to instructing the jury, the trial court apprised both parties of the aggravating factors that the State sought to pursue, referring to its colloquy with counsel as a charge conference. After instructing the jury and before deliberations began, the trial court asked counsel whether there was anything further from the State or the defendant. Therefore, unlike in Hill,the trial court did not completely fail to comply with section 15A–1231(b), because it informed the parties of the aggravating factors that it would charge, it gave counsel a general opportunity to be heard at the charge conference, and it gave counsel an opportunity to object at the close of the instructions. However, because the trial court failed to inform counsel of the instructions that it would provide the jury, it deprived the parties of the opportunity to know what instructions will be given, and thus did not comply fully with all provisions of section 15A–1231(b).
Under section 15A–1231(b), the failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of the trial, materially prejudiced the case of the defendant. Although our Courts have not yet defined what it means for a defendant's case to have been materially prejudiced by the trial court's failure to fully comply with section 15A–1231(b), our Supreme Court has held that defense counsel's failure to object to jury instructions at trial had bearing on the issue of prejudice in the context of the trial court's failure to record the charge conference. Consistent with our Supreme Court's emphasis on the opportunity to object, the HillCourt found that the defendant suffered material prejudice because, in addition to failing to conduct any semblance of a charge conference, the trial court did not give counsel an opportunity to object to the charge at the close of instructions.
The trial court here did not err so egregiously. It conducted what it referred to as a charge conference, during which it conferred with counsel regarding the specific aggravating factors that it would charge to the jury. The trial court asked counsel if either of them wished to be heard before the jury was charged, opening the door for counsel to tender proposed instructions or to ask about instructions. Furthermore, the trial court specifically asked defense counsel if there was anything further before allowing the jury to begin deliberations, opening the door for objection to the instructions if defendant had one.
Given the opportunity that defendant had to correct the trial court's inadequate EHAC instruction after the jury had been charged, and also considering the aforementioned overwhelming evidence supporting the jury's finding of EHAC in this case, we cannot conclude that defendant has demonstrated material prejudice resulting from the trial court's failure to comply fully with section 15A–1231(b).
State v. Houser,––– N.C.App. ––––, ––– S.E.2d –––– (No. COA14–973) (Feb. 17, 2015) (citations, quotation marks, ellipses, and brackets omitted).
Here, the State informed the trial court, in front of defendant's counsel, exactly which aggravating factors it would be proceeding on; the trial court then asked both attorneys if they would like to make an opening statement. Defendant's attorney asked for a moment to decide whether defendant would stipulate to the aggravating factors and in no way challenged the aggravating factors the State had just said it would be contending were applicable. Defendant's attorney then informed the trial court defendant would proceed without stipulation. Defendant's counsel then made a motion to set aside the jury verdict which the trial court denied. Thereafter, before the jury was brought into the courtroom the trial court clarified which charges the aggravating factors were applicable to, then stated, “If there's nothing else, you can bring the jury back in.” Defendant's attorney made no objection. The jury was then brought in and instructed. After the jury was excused, the trial court asked if there were any issues to which defendant's counsel responded, “No, sir.” As such, we find this case to be akin to Houser. See id.Just as in Houser,here, the trial court
conferred with counsel regarding the specific aggravating factors that it would charge to the jury. The trial court asked counsel if either of them wished to be heard before the jury was charged, opening the door for counsel to tender proposed instructions or to ask about instructions. Furthermore, the trial court specifically asked defense counsel if there was anything further before allowing the jury to begin deliberations, opening the door for objection to the instructions if defendant had one.
Id.at ––––, ––– S.E.2d at ––– –. We find no material prejudice, and this argument is overruled. See id.
V. Conclusion
For the foregoing reasons, we find no error in defendant's underlying trial, but we do vacate and remand as to file number 11CRS066221 for resentencing.
REMANDED FOR RESENTENCING.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgments entered on or about 20 February 2014 by Judge Robert T. Sumner in Superior Court, Gaston County. Heard in the Court of Appeals 2 December 2014.