STATE OF NORTH CAROLINA
v
.
Pender County
No. 99 CRS 975-976
RUSSELL MARMOR,
Defendant.
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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