Opinion
No. COA07-607.
Filed February 19, 2008.
Mecklenburg County Nos. 05 CRS 219920, 05 CRS 219922.
Appeal by defendant from judgment entered 4 January 2007 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 January 2008.
Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State. Russell J. Hollers III for defendant-appellant.
Defendant Andre Jamal Moss appeals from his conviction of (1) first degree sexual offense on a child under the age of 13 years and (2) taking indecent liberties with a child. Defendant argues and the State concedes that the trial court erred by instructing the jury on a theory of guilt not alleged in his indecent liberties indictment. Because of the variance between the indictment and the instructions, defendant is entitled to a new trial on the indecent liberties charge.
Facts
At trial, the State presented evidence that tended to show the following facts. On 6 March 2005, Victoria, a friend of defendant's mother, came to the Moss' home to celebrate Victoria's birthday. Victoria brought her five-year old daughter, Melissa, with her. When Victoria and defendant's mother decided to go out to celebrate, defendant was left to babysit Melissa. During the evening, defendant asked Melissa if she had ever seen her father's private part, he pulled down her stockings, and he put his finger in her private part. Later, Victoria called to check on Melissa, and defendant told her that Melissa had cried herself to sleep because she was missing her mother. When they returned, Melissa was asleep.
The pseudonyms "Victoria" and "Melissa" will be used throughout the opinion to protect the child "Melissa's" privacy and for ease of reading.
The next day, after school, Melissa told her mother that "[defendant] stuck his fingers in my butt." Victoria took Melissa to the emergency room where Officer Haghighi of the Charlotte-Mecklenburg Police Department interviewed Melissa. Officer Haghighi testified at trial that Melissa had told her that defendant had twice inserted his finger into her vagina. A forensic interviewer from a child advocacy center also interviewed Melissa on 15 March 2005 and testified at trial that Melissa had described to him how defendant had digitally penetrated her vagina. The taped interview with Melissa was shown to the jury.
Dr. Mary Rogers examined Melissa on 17 March 2005 and discovered a healed partial tear at the base of the hymen. According to Dr. Rogers, the tear could have been caused by genital trauma and was consistent with the defendant's inserting his finger or fingers into Melissa's vagina.
When defendant was interviewed by police officers, he told them that Melissa was crying for her mother and then told him that she had something inside her and could not get it out. According to defendant, he used his fingers to pull out a green string, and Melissa then started bleeding. He did not tell anyone because he did not want his mother to punish him.
At trial, defendant testified consistent with his statement to the police. His mother testified that she believed Melissa had pulled apart a tampon kept in the spare room where Melissa had been playing computer games. Defendant's mother said that her grandnieces had left tampons in the room that she had then put in a drawer in the computer desk. The tampons were gone when she looked for them after defendant was interviewed, but she found the cardboard applicator for one of the tampons behind the computer desk on the floor. She did not, however, give the applicator to the police for testing.
On 1 August 2005, defendant was indicted for: (1) first degree sexual offense with a child under the age of 13; (2) taking indecent liberties with a child; and (3) sexual battery. A jury found defendant guilty of first degree sex offense and indecent liberties with a child. After finding three mitigating factors and no aggravating factors, the trial court consolidated the two offenses and sentenced defendant to a mitigated range sentence of 144 to 182 months imprisonment. Defendant timely appealed.
Discussion
Defendant first contends the trial court committed plain error when it instructed the jury on the offense of taking indecent liberties with a minor. "Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial." State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996).
N.C. Gen. Stat. § 14-202.1(a) (2005) provides:
(a) A person is guilty of taking indecent liberties, with children if, being 16 years of age or more and at, least five years older than the child in question, he, either:
(1) Willfully takes or attempts to take any, immoral, improper, or indecent liberties with any, child of either sex under the age of 16 years for the, purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any, lewd or lascivious act upon or with the body or, any part or member of the body of any child of, either sex under the age of 16 years.
Thus, the statute sets forth two theories upon which a conviction for indecent liberties may be based.
The indictment in this case relied upon N.C. Gen. Stat. § 14-202.1(a)(1), alleging that defendant "did unlawfully, willfully, and feloniously take and attempt to take immoral, improper, and indecent liberties with [Melissa], who was under the age of sixteen (16) years at the time, for the purpose of arousing or gratifying sexual desire." The trial court, however, instructed the jury that it could convict defendant of taking indecent liberties with Melissa if defendant "committed a lewd or lascivious act upon a child" as provided in N.C. Gen. Stat. § 14-202.1(a)(2). Defendant argues that not only did this instruction allow the jury to convict him on a theory not included in the indictment, it also precluded the jury from considering his defense: that, although he did touch Melissa, he did not do so for the purpose of arousing or gratifying sexual desire.
"It has long been the law of this State that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment." State v. Williams, 318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986). In Williams, the Supreme Court held that a "fatal variance" existed when the indictment alleged the elements of rape set out in N.C. Gen. Stat. § 14-27.2(a)(2), while the trial court instructed the jury regarding the elements set out in N.C. Gen. Stat., § 14-27.2(a)(1). Id. at 631, 350 S.E.2d at 357. The Court held that the instructions constituted fundamental error that required reversal. Id. See also id. at 629, 350 S.E.2d at 356 ("[W]e hold that the jury instructions were more than erroneous; they were a basic violation of due process.").
This case is materially indistinguishable from Williams. Accordingly, the trial court's instructions on a theory not supported by the indictment constituted plain error, and defendant is entitled to a new trial on the charge of taking indecent liberties with a child. Although defendant has not presented any grounds for overturning his conviction of first degree sexual offense, because the trial court consolidated the two charges for sentencing, defendant will also need to be resentenced.
Defendant also argues that the trial court erred in entering judgment against defendant for attorney's fees without giving him notice and an opportunity to be heard. On defendant's criminal judgment and commitment order, the trial court marked the box indicating that "[a] hearing was held in open court in the presence of the defendant at which time a fee, including expenses, was awarded the defendant's appointed counsel or assigned public defender." The record on appeal, however, does not contain a copy of any civil judgment entered under N.C. Gen. Stat., § 7A-455 (2005).
In State v. Jacobs, 361 N.C. 565, 648 S.E.2d 841 (2007), our Supreme Court recently vacated a holding by this Court setting aside a judgment against defendant for attorney's fees:
The Court of Appeals majority vacated the trial court's taxing of attorney fees against defendant because it concluded that the trial court could not properly enter judgment for attorney fees without giving defendant notice and an opportunity to be heard on that issue, pursuant to N.C.G.S. § 7A-455. . . . The dissent noted that the record contained no judgment requiring defendant to pay attorney fees, but that the trial judge merely indicated his intention to enter a future order assessing attorney fees. . . . We conclude that because there is no civil judgment in the record ordering defendant to pay attorney fees, the Court of Appeals had no subject matter jurisdiction on this issue. See N.C. R. App. P. 3(a); id. 9(a)(1)(h).
Id. at 566, 648 S.E.2d at 842. Accordingly, because the record on appeal in this case contains no civil judgment, Jacobs directs that we lack subject matter jurisdiction to address defendant's arguments regarding any fee award.
No error in part; vacated and remanded in part.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).