1. Rape--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss charges of first-
degree rape of an eight-year-old child at the close of the State's evidence. Contradictions and
discrepancies in the evidence are for the jury to resolve.
2. Discovery--letter written by defendant--defendant not permitted to inspect and
copy--letter not in possession of State
The trial court did not err in a prosecution for the first-degree rape of an eight-year-old
child by allowing testimony concerning a letter written by defendant to the victim's mother
where defendant contended that the use of the letter violated N.C.G.S. § 15A-903, which states
that the defendant must be permitted to inspect and copy any relevant written statement made by
defendant in the possession, custody, or control of the State. The letter was never in the State's
possession and defendant made no showing that the mother destroyed the letter in bad faith.
Other testimony about the letter only corroborated the mother's testimony.
3. Discovery--rape--slides from medical examination--discovered during trial
The trial court did not err in a prosecution for the first-degree rape of an eight-year-old
child by admitting slides depicting the medical examination of the victim even though the slides
had not been provided in response to defendant's discovery request. The State did not know
about the slides until defendant elicited the information from a doctor during cross-examination
and the court permitted defendant to view the slides during a break.
4. Indictment and Information--statutory rape--date of offenses--bill of particulars
denied
The trial court did not err in a prosecution for taking indecent liberties and statutory rape
by denying defendant's motion for a bill of particulars as to the dates of the offenses where the
indictments alleged that the rapes were on or about December, 1995, on or about January
1996, and on or between February 1 and 14, 1996. The indictments listed the month and year
that each offense was alleged to have occurred and sufficiently complied with N.C.G.S. § 15A-
924(a)(4) by charging that the offense occurred during a designated period of time.
Appeal by defendant from judgment entered 2 February 1998 by
Judge Catherine C. Eagles in Guilford County Superior Court.
Heard in the Court of Appeals 18 March 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Elizabeth F. Parsons, for the State.
Chut & Chut, P.A., by Mercedes O. Chut, for defendant-
appellant.
WALKER, Judge.
On 2 February 1998, defendant was convicted of taking
indecent liberties with a child and two counts of first-degree
statutory rape. The trial court consolidated the indecent
liberties conviction with one of the first-degree statutory rape
convictions and imposed a minimum term of 307 months and a
maximum term of 378 months in prison. For the remaining first-
degree statutory rape conviction, the trial court imposed a
minimum term of 307 months and a maximum term of 378 months to
run consecutively.
The State's evidence tended to show the following: N.W.
testified that she was now ten years old and in the fourth grade.
Defendant was her mother's boyfriend who stayed at their house
sometimes. She stated that there were times when she stayed
alone with defendant in the house. After she turned eight years
of age on 4 April 1995, defendant began sexually abusing her.
N.W. described the area where defendant touched her as her
privacy. She illustrated her description by circling the area
where defendant touched her on a female diagram with a marker.
She described one incident where defendant touched her downstairs
in the house while she was laying on the couch and her mother was
upstairs taking a shower. She testified that defendant touched
her underneath her clothes with his privacy which he put into
her privacy and moved around. She also described a second
incident where she was upstairs in her night clothes lying in
her mother's bed when her mother was not home and defendant came
up there. He pulled down his clothes and started to feel herwith his privacy. Then, he put his privacy into her
privacy and kept doing it over and over again. Later, N.W.
told her mother what defendant had been doing to her and her
mother told her not to tell anyone.
Deborah Wilson, N.W.'s mother, testified that she had dated
defendant on and off for six years. Defendant lived with them
between November 1995 and February 1996 and he often babysat N.W.
She stated that N.W. told her what defendant was doing to her and
that she called the police. Wilson also testified that she
received a letter from defendant in July of 1996 in which he
asked to be forgiven, but he did not specify for what he wanted
to be forgiven. She showed the letter to Pam Watkins of the
Guilford County Department of Social Services and then later
threw it away. Detective Mike J. Ledford testified that Wilson
came to the police department on 19 February 1996 to report that
her daughter had been sexually molested by her live-in boyfriend.
He contacted Social Services and then arranged an interview with
N.W. at her elementary school where she told him that defendant
had touched her in her privacy a whole lot of times. She
told him that it happened both upstairs and downstairs at her
mother's house. He also interviewed her a second time after he
was informed by Social Services that N.W. had disclosed that
penetration had occurred. He subsequently arrested defendant.
Watkins testified that she was assigned the case involving
N.W. on 3 July 1996. N.W. told her that defendant would touch
her underneath her clothes and digitally penetrate her and mess
with her. N.W. also told her that she had trouble sleeping. Kimberly Madden, a counselor who works with Dr. Angela
Stanley at Moses Cone Hospital in the Child Evaluation Clinic,
testified that she interviewed N.W. on 9 November 1996. N.W.
indicated on a female diagram with a marker where defendant
touched her and with what part of his body. N.W. indicated that
defendant touched her on her genitals with his hands. N.W. told
her that it burned when she went to the bathroom. N.W. had a
very anxious demeanor throughout the interview and would suck her
fingers and hang her head.
Dr. Angela Stanley, a pediatrician at Moses Cone Hospital
who does evaluations of children who are suspected of being
abused or neglected, testified that she performed a physical
examination on N.W. on 9 September 1996 and also interviewed
Wilson. She found that N.W. had a lot of irregularities of her
hymen. Her physical examination supported N.W.'s statements
that she had been penetrated. After her examination, Dr. Stanley
determined that it was probable and not definite that there
was a penetrating injury although there was no complete
disruption of the hymen or evidence of a sexually transmitted
disease.
Defendant presented evidence which included his testimony
and that of his sister and his girlfriend. Defendant's sister,
Juana Massey, testified that as long as she had known N.W. she
sucked her fingers and hung her head. Defendant's girlfriend,
Sharon Terry, testified that after his arrest she permitted
defendant to babysit her nine and ten-year-old daughters.
Defendant testified that he helped raise N.W. from the timeshe was five years old and that he did not touch her
inappropriately. He said that N.W. loved him like a father.
On appeal, defendant contends that the trial court erred (1)
in denying his motion to dismiss based on the insufficiency of
the evidence; (2) in admitting testimony of Wilson and Dr.
Stanley about the contents of a letter written by defendant; (3)
in admitting slides depicting the medical examination of N.W.;
(4) in denying defendant's motion for a bill of particulars; and
(5) in admitting testimony by Dr. Stanley about statements made
to her by Madden.
[1]First, defendant contends that the trial court erred in
denying defendant's motion to dismiss at the close of the State's
evidence. Defendant argues that the evidence presented was
insufficient to support the charges of first-degree rape pursuant
to N.C. Gen. Stat. § 14-27.2(a)(1)(Cum. Supp. 1998) which
provides as follows:
(a) A person is guilty of rape in the first
degree if the person engages in vaginal
intercourse:
(1) With a victim who is a child under
the age of 13 years and the
defendant is at least 12 years old
and is at least
four years older than the victim.
When considering a motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State,
giving the State the benefit of every reasonable inference which
may be drawn. State v. Overton, 60 N.C. App. 1, 26, 298 S.E.2d
695, 710 (1982), appeal dismissed and disc. review denied, 307
N.C. 580, 299 S.E.2d 652-53 (1983). The State is still required
to produce substantial evidence more than a scintilla to provethe allegations in the bill of indictment. Id.
In reviewing the evidence in the light most favorable to the
State, the record shows that there was substantial evidence in
this case that defendant committed the crimes charged. N.W. gave
testimony in which she described at least two separate incidents
where defendant penetrated her with his penis and also touched
her on her private parts. Testimony was also given by N.W.'s
mother, as well as the police detective, social worker, and
counselor, all of whom interviewed N.W. and relayed similar
accounts as to what defendant had done to her. Furthermore, Dr.
Stanley stated that based on her findings and observations,
N.W.'s vagina had been penetrated on one or more occasions. In
State v. Green, 95 N.C. App. 558, 562-63, 383 S.E.2d 419, 421-22
(1989), this Court held that a child's testimony along with
corroborative evidence from the child's mother, a police
detective and a doctor who testified that the findings from his
physical examination were compatible with penile penetration
was sufficient evidence to uphold the trial court's denial of
defendant's motion to dismiss the first-degree rape charge. This
Court came to the same conclusion in a similar case where the
victim's testimony was supported by medical evidence of
penetration and there was corroborating evidence by a police
officer, social worker, and the victim's foster mother, who
testified to statements made to them by the victim and her
behavioral patterns. State v. Dick, 126 N.C. App. 312, 318, 485
S.E.2d 88, 91, disc. review denied, 346 N.C. 551, 488 S.E.2d 813
(1997). Defendant argues that N.W.'s testimony was contradictory and
that Dr. Stanley's testimony was ambivalent. However,
contradictions and discrepancies in the evidence presented are
for the jury to resolve and do not warrant a dismissal of a case.
State v. Spangler, 314 N.C. 374, 383, 333 S.E.2d 722, 728 (1985).
Defendant also contends that this case is similar to State v.
Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961) and State v.
Robinson, 310 N.C. 530, 313 S.E.2d 571 (1984), where our Supreme
Court found that there was insufficient evidence to convict the
defendant of the first-degree rape of a child. However, in
Whittemore, 255 N.C. at 586, 122 S.E.2d at 398, the victim never
testified as to actual penetration by the defendant and there was
no medical evidence of such. In Robinson, 310 N.C. at 534, 313
S.E.2d at 574, the child never described an act of sexual
intercourse and the medical evidence presented only stated that
the vaginal injury in the child could have been caused by a
male sex organ. Therefore, we find this assignment of error to
be without merit.
[2]Next, defendant argues that the court erred in allowing
testimony by Wilson and Dr. Stanley about the contents of a
letter written by defendant. Defendant contends this was in
violation of N.C. Gen. Stat. § 15A-903 (1997), which states that
the defendant must be permitted to inspect and copy or photograph
any relevant written statement made by the defendant which is in
the possession, custody, or control of the State.
Here, the letter received by Wilson was never in the State's
possession. Wilson testified that she had destroyed the letterfrom defendant. Thus, the State did not violate N.C. Gen. Stat.
§ 15A-903(a)(1). Pursuant to N.C. Gen. Stat. § 8C-1, Rule 1004
(1992), an original of a document is not required as evidence of
its contents if the original is lost or destroyed unless the
proponent lost or destroyed it in bad faith. The defendant made
no showing that Wilson destroyed the letter in bad faith.
In addition, defendant argues that the trial court should
not have allowed testimony about the letter because its
prejudicial effect outweighed its probative value pursuant to
N.C.R. Evid. 403. The determination of whether to exclude
evidence under Rule 403 is a matter within the sound discretion
of the trial court. State v. Mason, 315 N.C. 724, 731, 340
S.E.2d 430, 435 (1986). The trial court's decision will not be
disturbed absent a showing of a manifest abuse of discretion.
State v. Smith, 130 N.C. App. 71, 76, 502 S.E.2d 390, 394 (1998).
The defendant has failed to show that the trial court abused its
discretion in admitting testimony concerning the letter as there
is no evidence that any prejudicial effect the letter may have
had was outweighed by its probative value.
Defendant objects to Dr. Stanley's testimony concerning the
contents of the letter as being inadmissible hearsay. Defendant
also contends that if it were admitted, the trial court should
have given a limiting instruction that it could only be used for
corroborative purposes. A trial court's ruling as it relates to
an evidentiary point will be presumed to be correct unless the
appealing party can show that the particular ruling was
incorrect. State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363,373 (1988). Even if the appealing party can show that the trial
court erred, relief will ordinarily not be granted unless there
is a showing of prejudice. Id. The erroneous admission of
hearsay, like the erroneous admission of any other evidence, is
not always so prejudicial as to require a new trial. State v.
Ramey, 318 N.C. 457, 470, 349 S.E.2d 566, 574 (1986).
Here, even if it is assumed arguendo that allowing Dr.
Stanley to testify as to the contents of the letter was
erroneous, the defendant has not shown how it was prejudicial.
Testimony as to the content of the letter was properly admitted
when Wilson testified. Dr. Stanley only corroborated Wilson's
testimony. Therefore, we find this assignment of error to be
without merit.
[3]Next, defendant argues that the trial court erred in
admitting slides depicting the medical examination of N.W.
Defendant contends that because the slides may have contained
exculpatory information, the State violated a constitutional duty
by not allowing defendant to examine them before trial. The
record shows the State did not know about the slides until
defendant elicited this fact from Dr. Stanley in his cross-
examination of her when she revealed that she had photographic
slides made during N.W.'s examination. Prior to allowing the
State to question Dr. Stanley on redirect about the slides, the
trial court heard arguments from defendant that the slides had
not been provided in response to his discovery request. The
State indicated it was not aware of the existence of the slides
until Dr. Stanley's testimony. The trial court then permittedthe defendant to view the slides during the break.
On a defendant's motion, the results of physical
examinations within the possession, custody, or control of the
State, the existence of which is known or by the exercise of due
diligence may be known to the prosecutor are required to be
disclosed. N.C. Gen. Stat. § 15A-903(e)(1997). Since the State
was unaware of the existence of the slides and the fact that
defendant was permitted to view them prior to the conclusion of
the evidence, we conclude the trial court did not err.
[4]Defendant next argues that the trial court erred in
denying defendant's motion for a bill of particulars. Defendant
contends that the identification of the dates of the offenses on
the indictments was not precise enough and thereby violated N.C.
Gen. Stat. § 15A-924(a)(4). The dates on the three indictments
for statutory rape were on or about December, 1995, on or about
January 1996, and on or between February 1 and 14, 1996.
Whether or not to grant a motion for a bill of particulars is
within the discretion of the trial court and its denial of the
motion will be reversed only on a showing of an abuse of
discretion. State v. Cameron, 283 N.C. 191, 194, 195 S.E.2d 481,
483 (1973).
According to N.C. Gen. Stat. § 15A-924(a)(4)(1997), 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.
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 change andthe error or omission did not mislead the
defendant to his prejudice.
Our Supreme Court has held that in cases involving sexual
abuse of children 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. State v.
Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984). The failure
to state a definite time for the offense will not result in a
nonsuit when there is sufficient evidence that defendant
committed each essential act of the offense. Id. This Court
recently held that the indictments were sufficiently specific
pursuant to N.C. Gen. Stat. § 15A-924(a)(4) where the date of the
offenses of first-degree statutory sexual offense of a female
child under 13 and taking indecent liberties with a child was
January 1, 1994 through September 12, 1994. State v. Blackmon,
130 N.C. App. 692, 696-97, 507 S.E.2d 42, 44-46, cert. denied,
(No. 466P98, N.C. Supreme Court, December 30, 1998). Here,
defendant's indictments listed the month and year that each
offense was alleged to have occurred. We conclude these
indictments sufficiently comply with N.C. Gen. Stat. § 15A-
924(a)(4) by charging the offense occurred during a designated
period of time. Thus, we find this assignment of error to be
without merit.
We have carefully reviewed defendant's remaining assignment
of error and find it to be without merit. The defendant received
a fair trial free of prejudicial error. No error.
Judges JOHN and MCGEE concur.
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