A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-664


Filed: 17 September 2002


v .                         Pender County
                            No. 99 CRS 975-976

    Appeal by defendant from judgments entered 7 June 2000 by Judge W. Allen Cobb, Jr., in Pender County Superior Court. Heard in the Court of Appeals 15 April 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Jane T. Hautin, for the State.

    Geoffrey W. Hosford, for the defendant-appellant.

    HUDSON, Judge.

    A jury convicted defendant of first-degree sex offense and taking indecent liberties with a child. The court sentenced him to prison for 256 months minimum and 317 months maximum. Defendant appeals.
    Defendant's daughter, hereinafter referred to as “JM,” testified that one day in May 1996, when she was seven years old, she fell asleep on her parents' bed in her nightgown. When she woke up she had no clothes on and her father “licked me in my privates . . . He came up on my breast and kissed on it, and then he kissed me on my mouth.” Then she heard her mother and brother come home, and she ran out of her parents' bedroom. She did not report this incident to anyone until October 1998, when she and hermother were staying with relatives in Asheville, on their way to Las Vegas. JM told her cousin Danielle what her father did to her, and Danielle reported it to JM's mother, Debra Schwartz. JM testified that she showed her mother what happened by acting out the incident with her Barbie dolls.
     Ms. Schwartz testified that they were moving away from Pender County, North Carolina because she could not find a “safe house” or domestic violence shelter in the area for her and her daughter that the defendant did not know about. She chose Las Vegas because her mother lived there. After JM and Ms. Schwartz moved, they contacted the Nevada authorities to find out what to do about the incident involving defendant. Keisha English, an investigator with Child Protective Services in Nevada, and Detective Gary Jacobsen, an officer with the Las Vegas Metropolitan Police Department, contacted Ms. Schwartz and JM to investigate the allegations.
    Detective Jacobsen and Ms. English interviewed JM and recorded the interview on videotape. Detective Jacobsen came to North Carolina to testify at defendant's trial about his investigation of the matter and the videotaped interview. Sergeant Montrina Sutton, an officer with the Pender County Sheriff's Department, testified that Ms. Schwartz contacted her office in January 1999. Thereafter, Sergeant Sutton had several conversations with Ms. Schwartz and then contacted the Las Vegas authorities. After Detective Jacobsen sent her the videotape of the interview with JM, she filed charges against defendant in Pender County.
    Defendant testified on direct examination:A    I remember that I asked her to take her clothes off, and she did. I remember that she got back on the bed, I remember that.

Q    Do you remember any discussion that you - - the two of you were having while this was going on?

A    Prior to that, yes, sir, yeah.

Q    What were you discussing?

A    Sex.

Q    Okay. And how did this discussion come about?

A    [JM] had been talking about sex at different times throughout the last couple of weeks or so.

Q    How old was she at the time?

A    How old was she?

Q    Mm-hmm, the best of your recollection.

A    The best? Seven to eight.

Q    Okay. You can continue.

A    She was talking about sex prior. I wanted to know what she knew about it because, as a parent, some things came up in my mind. I won't say that yet, I'll say that later. I know the approach that I took. And, when she had her clothes off, she was back on the bed, I began to kiss her around the -- if you can imagine the bikini line, about three, four inches below the belly button. Then --
Q    When you say you were kissing her, would you describe that part of it? What do you mean by kissing her? How were you kissing her?

A    Kissing with my lips, not a French kiss or anything like that, but just kissing with my lips.

Q    When you were kissing her around, as you say, the bikini line, was -- did your tongueever touch her stomach, or that area?

A    My tongue did touch below the bikini line, yes, but not in the privates.

. . .

Q    And you can go on from there. What happened after that?

A    A lot of tickling, because she was always ticklish, and I knew where her spots were. I've been with her for 10 years, so I knew my daughter.

. . .

Q    Then what happened?

A    I think I kissed her once between the belly button and the breast, and then once on the breast, once on the mouth, and that's it.

Defendant denied ever touching his daughter's genitalia. The jury found defendant guilty of first-degree sexual offense and indecent liberties with children.
    Defendant makes five arguments in his brief on appeal. However, defendant did not object at trial or otherwise act to preserve the issues he raises. Rule 10(b) of the North Carolina Rules of Appellate Procedure (2001) requires that “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” Part (c)(4) of the same rule allows questions not properly preserved “be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R. App. Proc. 10(c)(4)(2001). Although Rule 10 does not limit plain error review to particular types of errors, that review has been limited by our Courts to jury instructions and evidentiary rulings. See State v. Wilson, 354 N.C. 493, 504, 556 S.E.2d 272, 280 (2001). A plain error is one that “is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting Unites States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (internal citations and quotations omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). “To prevail on plain error review, defendant must show that (i) a different result probably would have been reached but for the error or (ii) the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Braxton, 352 N.C. 158, 197, 531 S.E.2d 428, 451 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). Although defendant requests in his brief that we review all but his first argument for plain error, he did not mention plain error in any of his supporting assignments of error. Thus, none of these issues are properly preserved for review of any error, plain or otherwise, and we decline to address them.
    In his first argument, defendant contends that the “indictment in 99 CRS 975 fails to state a crime” and defendant was not charged with first-degree sexual offense. The purpose of an indictment is to inform the defendant of the charge against him with sufficientcertainty to enable him to prepare a defense. See State v. Gregory, 223 N.C. 415, 27 S.E.2d 140 (1943). Again, defendant did not assign error to the indictment, but a challenge to the sufficiency of an indictment may be made for the first time on appeal. See State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998). Defendant argues that the short-form indictment in 99 CRS 975 does not give defendant notice of the crime with which he is charged. The indictment is captioned “Statutory Sexual Offense”, but lists N.C. Gen. Stat. § 14-27.4 “First-degree sexual offense” (2001) as the statutory authority for the charge. The indictment reads: “The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above, the defendant named above did unlawfully, willfully and feloniously did engage in a sex offense with [JM] a child under the age of 13 years.” The text of the indictment is identical to that required by N.C. Gen. Stat. § 15-144.2(b) “Essentials of bill for sex offense” (2001), which lists the elements of a short-form first-degree sexual offense indictment. In order to properly allege a charge of first-degree sex offense, N.C.G.S. § 15-144.2(b) requires “[i]f the victim is a person under the age of 13 years, it is sufficient to allege that the defendant unlawfully, willfully, and feloniously did engage in a sex offense with a child under the age of 13 years, naming the child, and concluding as aforesaid.” This short-form indictment for first-degree sexual offense has been approved by the Supreme Court in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498(2000). Thus, in accordance with Wallace, the indictment in case number 99 CRS 975 is sufficient.
    Defendant also argues that the trial court should have dismissed the first-degree sexual offense charge, because the caption of the indictment reads “statutory sexual offense,” and not “first-degree sexual offense” This caption was erroneous, but we believe it was likely a clerical error, and that defendant had adequate notice of the offense charged. Both “first-degree sexual offense” and “statutory sex offense” involve the commission of a sexual act upon a younger person. Part (a)(1) of N.C.G.S. § 14- 27.4 “First-degree sexual offense” applies where the victim is under the age of 13. “Statutory sex offense” applies where the victim is 13, 14, or 15 years of age. Here, the body of the indictment specifically alleges that the victim, JM, was under the age of 13 at the time of the offense, in violation of N.C.G.S. § 14-27.4, and thereby notified defendant of the charge. See State v. Bennett, 271 N.C. 423, 425, 156 S.E.2d 725, 726 (1967) (noting that the caption is not part of the indictment); see also State v. Allen, 112 N.C. App. 419, 428, 435 S.E.2d 802, 808 (1993).
    Moreover, N.C. Gen. Stat. § 15A-924 (2001) requires that a valid indictment include: (1) the name of the defendant, (2) a separate count for each offense charged, (3) the county in which the alleged crime was committed, (4) the date of the offense, (5) a factual summary of the charge, and (6) the applicable rule or statute which has been violated. Part (6), requiring that the statute or rule violated be listed, states that “[e]rror in thecitation or its omission is not ground for dismissal of the charges or for reversal of a conviction.” Similarly, we find no ground for reversal here where there was error in the caption, but not in the statutory authority cited, name of the defendant, county, date, or substance of the offense. Because defendant had notice of the offense charged in the body of the indictment, defendant's first and second assignments of error are overruled.
    In his third, fourth, and fifth arguments, defendant contends that the trial court committed plain error in the admission of certain evidence. Because he has neither preserved these issues nor assigned plain error, we decline to review these arguments.
    No error.
    Judges EAGLES and BRYANT concur.
    Report per Rule 30(e).

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