Opinion
No. 04-1291.
Filed 20 September 2005.
Robeson County Nos. 02 CRS 11158-59; 02 CRS 11161.
Appeal by defendant from judgment entered 24 May 2004 by Judge B. Craig Ellis in Robeson County Superior Court. Heard in the Court of Appeals 19 May 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State. Mercedes O. Chut for defendant appellant.
Defendant appeals from his convictions of three counts of taking indecent liberties with a child. We find no error in defendant's convictions, but we remand for a new sentencing hearing.
The State presented evidence at trial tending to show the prosecuting witness ("the witness") was the fourteen-year-old granddaughter of defendant. The witness testified that, when she was five years old, defendant began playing a game called "horsey" with her whenever she spent the night at her grandparents' home. The game usually took place in the morning after breakfast, while the witness still wore her nightgown, and after her grandmother had left for work. During the "horsey" game, defendant would take the witness either to a reclining chair or "back to his back bedroom and he would lay down and put [her] on his penis. His pants were unzipped, but his underwear was still on." Defendant would then "move" the witness and "sing the song that goes with the ride a horsey." The witness testified her "lower area" would touch defendant during the game and that it "didn't feel right." Once, when the witness asked defendant to stop, "he just laughed and kept going." The witness testified these incidents occurred approximately twice a month for at least five or six years, until she was ten or eleven years old. The witness also recalled an occasion when defendant removed her shirt and licked her chest.
When the witness was ten or eleven years old, defendant grabbed her breasts while hugging her. He explained to the witness that "if you rub your breasts, then they will get bigger." The witness then decided to tell her best friend of defendant's actions because she "had enough of it." The witness subsequently reported defendant's actions to her best friend and her family.
Dr. Laura Thurston Gutman, an expert in pediatric maltreatment and child sexual abuse, testified she examined the witness on the 18th and 25th of November 2002. During her physical examination of the child, Dr. Gutman discovered that her "hymen had been eroded so that there was no hymen — less than one millimeter of hymen in the posterior part." Dr. Gutman stated this was "an abnormal finding" and "significant because it is so extremely supportive of [the witness's] history of repetitive injury to that area."
In addition to the physical examination, the witness demonstrated defendant's actions to Dr. Gutman using "anatomically correct dolls" whereby the "male doll would lie back down on the bed and with his hands he would then position the female doll straddling her in the pelvic area." The witness informed Dr. Gutman that, during the "horsey game," which typically lasted ten to fifteen minutes, defendant panted and his penis was "sticking up and very hard." Defendant told the witness she "shouldn't tell anybody because he would get in trouble."
Paula Browder, a licensed clinical social worker, testified as an expert in counseling and child sexual abuse. Ms. Browder stated that, during therapy, the witness informed her of the "horsey game" and her grandfather's actions in touching her breasts. According to Ms. Browder, the witness's behavior and symptoms, including depression, anger, anxiety, frustration, sleep disturbance, and difficulty in maintaining focus and concentration at school, were consistent with those of a sexually abused child. Defendant did not object to the testimony by Ms. Browder.
Defendant presented no evidence. The jury found defendant guilty of three counts of indecent liberties with a child, for which the trial court sentenced defendant to three consecutive aggravated sentences of twenty-six to thirty-two months' imprisonment. The trial court also designated defendant as a sexually violent predator. Defendant appeals.
Defendant argues the trial court erred by (1) failing to dismiss the charges on the ground that the indictments against him were fatally defective; (2) admitting evidence from the witness's therapist; (3) denying his motion to dismiss; and (4) sentencing him in the aggravated range. We agree that the trial court erred in sentencing defendant in the aggravated range and remand this case for a new sentencing hearing. We otherwise find no error by the trial court.
By his first assignment of error, defendant contends the indictments against him were fatally defective in that they only specified a year in which the offenses occurred, one for 1999 and two for 2001. Defendant contends the indictments thus failed to meet the requirements of section 15A-924(a) of our General Statutes and gave him no practical notice of the charges against him. We do not agree.
Under section 15A-924(a), a criminal pleading must contain "a statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time." N.C. Gen. Stat. § 15A-924(a)(4) (2003). "Error as to a date or its omission is not ground for dismissal of the charges or for reversal of a conviction if time was not of the essence with respect to the charge and the error or omission did not mislead the defendant to his prejudice." Id.
"`[W]here time is not of the essence of the offense charged and the statute of limitations is not involved, a discrepancy between the date alleged in the indictment and the date shown by the State's evidence is ordinarily not fatal.'" State v. Poston, 162 N.C. App. 642, 647, 591 S.E.2d 898, 903 (2004) (quoting State v. Locklear, 33 N.C. App. 647, 653-54, 236 S.E.2d 376, 380, disc. review denied, 293 N.C. 363, 237 S.E.2d 851 (1977)). In cases involving the testimony of children, "[o]ur courts have also adopted a principle of leniency regarding dates." Id. Thus, "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." State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984). Leniency has been allowed in cases involving older children as well. See State v. Hardy, 104 N.C. App. 226, 409 S.E.2d 96 (1991) (allowing leniency in case where the victim was fifteen years old). "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.'" State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991) (quoting State v. May, 292 N.C. 644, 655, 235 S.E.2d 178, 185, cert. denied, 434 U.S. 928, 54 L. Ed. 2d 288 (1977)).
In the instant case, the State presented testimony by defendant's granddaughter from which the jury could find that defendant repeatedly molested the child on a regular basis over a period of five to six years, beginning when she was five years old and continuing on a regular basis until she was at least ten or eleven years old. The State also presented expert testimony by Dr. Gutman, who confirmed that the witness displayed physical symptoms of long-term, repetitive sexual abuse. Defendant did not assert an alibi defense; indeed, defendant presented no evidence at all. See State v. McGriff, 151 N.C. App. 631, 635-36, 566 S.E.2d 776 (2002) (holding that, where the defendant presented no evidence, he was not deprived of an alibi defense and thus the variances between the indictments and the evidence at trial were not fatal); State v. Blackmon, 130 N.C. App. 692, 697, 507 S.E.2d 42, 46 (holding that, where the date of the offense was not material, testimony by the minor child that sexual acts "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" was sufficient for an indictment specifying the time frame of 1 January 1994 through 12 September 1994), cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998). We overrule this assignment of error.
By his second assignment of error, defendant argues the trial court committed plain error in allowing testimony by the witness's therapist, Paula Browder, regarding statements by the witness concerning the offenses charged. Specifically, defendant contends the State did not lay a proper foundation pursuant to Rule 803(4) of the North Carolina Rules of Evidence when it failed to show that the statements made by the witness to Ms. Browder were for the purposes of medical diagnosis or treatment. Defendant acknowledges he failed to object to the testimony by Ms. Browder, but contends the admission of her testimony amounted to plain error by the trial court. We disagree.
It is well established that the plain error rule may only be applied in exceptional cases where, after reviewing the entire record, it can be said the claimed error is "fundamental," resulting in a "miscarriage of justice or in the denial to appellant of a fair trial." State v. McCarty, 326 N.C. 782, 785-86, 392 S.E.2d 359 (1990). Such is not the case here. As noted previously, the State presented ample evidence from which the jury could find that defendant committed the charged offenses. Even assuming, arguendo, that the admission of Ms. Browder's testimony was error, such error did not result in a miscarriage of justice or seriously affect the fairness of the judicial proceedings. We overrule this assignment of error.
Defendant next argues the trial court should have granted his motion to dismiss the charges on the ground that the evidence at trial concerning the dates of the alleged offenses substantially varied from the dates contained in the indictments. Essentially, defendant's argument is the same as that raised in his first assignment of error. As noted, supra, however, "[c]ourts are lenient in child sexual abuse cases where there are differences between the dates alleged in the indictment and those proven at trial." McGriff, 151 N.C. App. at 635, 566 S.E.2d at 779.
Here, the indictments alleged the offenses occurred in 1999 and 2001. The witness testified her birth date was 13 November 1989. She stated defendant began molesting her on a regular basis when she was five years old and that such molestation continued until she was at least ten or eleven years old. During cross-examination, the witness agreed that she might have been twelve years old when some of the incidents took place. Thus the evidence presented at trial did not fatally vary from the dates alleged in the indictment. The State moreover presented strong evidence in support for all of the elements of indecent liberties with a child, and defendant presented no alibi evidence. We hold the trial court did not err in denying defendant's motion to dismiss.
Defendant further contends the trial court erred in designating him a sexually violent predator. Defendant contends he did not receive proper notice as required by section 14-208.20 of our General Statutes, but notes that "should the State produce copies of the notice to [defendant's appellate counsel, defendant] will withdraw this assignment of error." This Court has since received a copy of the notice served on defendant's trial attorney and sent to defendant's appellate counsel. This assignment of error is therefore moot.
Finally, defendant argues the trial court erred in sentencing him in the aggravated range after finding that defendant "took advantage of a position of trust and confidence to commit the offense." Defendant contends the aggravation of his sentence violated his right to trial by jury as articulated by the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. ___, 159 L. Ed. 2d 403, reh'g denied, ___ U.S. ___, 159 L. Ed. 2d 851 (2004). We agree and hold defendant is entitled to be resentenced in accordance with Blakely and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).
No error in defendant's trial.
Remanded for resentencing.
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).