Appeal by defendant from judgments dated 15 June 2001 by Judge
Jack A. Thompson in Cumberland County Superior Court. Heard in the
Court of Appeals 10 September 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.
Parish, Cooke, Boose & Bullard, by James R. Parish, for
defendant appellant.
GREENE, Judge.
Patrick Andrew Pierce (Defendant) appeals judgments dated 15
June 2001 entered consistent with a jury verdict finding him guilty
of felonious child abuse by a sexual act and taking indecent
liberties with a child.
On or about 22 May 2000, Defendant was charged with one count
of felonious child abuse, one count of statutory sexual offense,
two counts of taking indecent liberties with a child, and one count
of crime against nature.
(See footnote 1)
The indictment for felonious child abusestated “that on or about the 21st day of September, 1999, . . .
[D]efendant . . . unlawfully, willfully and feloniously did commit
a sexual act, to wit: by forcing [his stepdaughter S.L.] to perform
oral sex on him, upon [S.L.], who was fifteen (15) years old.” The
indictment for one count of indecent liberties included in the
record on appeal refers to acts committed on 26 September 1999.
On 25 January 2001, Defendant filed a motion for a bill of
particulars requesting information on the specific act(s) the State
contended Defendant had committed. During the pretrial motion
hearing, the State explained it had provided Defendant with open
file discovery. The case file made available to Defendant
indicated “that on September 21, 1999, the family of the victim
. . . [was] staying at [a] Days Inn” when Defendant “forced [S.L.]
to perform oral sex on him.” According to the State, this act
constituted the basis for the charges of felonious child abuse,
statutory sexual offense, crime against nature, and one count of
indecent liberties. The case file further showed that on 26
September 1999, Defendant “put his hands up [S.L's] blouse and
fondled her” while S.L.'s “mother was in the bathroom taking a
shower.” It was this act that prompted the indictment for the
second count of indecent liberties. Concluding the State had
previously furnished all the requested information to Defendant,
the trial court denied Defendant's motion.
Prior to trial, the State advised the trial court and
Defendant that the 21 September 1999 date, based on a handwrittenstatement by S.L. and appearing in four of the five indictments,
including the felonious child abuse indictment, was wrong. The
State instead contended the offense actually occurred in late
August 1999.
The evidence at trial revealed that sometime in August 1999
S.L. and her family stayed at a Days Inn in Fayetteville, North
Carolina, where they shared a hotel room. While her mother was in
the shower and her two younger sisters were still asleep, S.L.
awoke to find Defendant in bed with her. Defendant was rubbing
S.L.'s breasts and motioning for her to perform oral sex on him,
which she did.
On the evening of 26 September 1999, S.L. was at home with her
mother, Defendant, and her sisters. S.L.'s sisters were in their
room getting ready for bed and her mother was taking a shower when
Defendant asked S.L. to come into the master bedroom he shared with
her mother. In the master bedroom, Defendant placed his hands
inside S.L.'s shirt and started rubbing her breasts. When S.L.'s
mother opened the bedroom door, she saw Defendant's hands coming
out of S.L.'s shirt. Defendant left the bedroom without saying
anything. Upon confronting S.L., the mother learned Defendant had
been molesting S.L. since she was six years old. Shortly
thereafter, S.L. reported the incident to the police.
At the close of the State's evidence, Defendant moved to
dismiss all charges for insufficiency of the evidence. After the
trial court denied Defendant's motion to dismiss, Defendant
attempted to offer the testimony of Michael Martin (Martin) whom heproffered as an expert in the fields of child sexual abuse profiles
and the proper protocol for child abuse investigations. Martin
testified during voir dire that at the time of the trial, he was
working with the Department of Social Services (DSS) in the area of
child adoptions. Prior to this position, Martin had been the case
manager for all of the sexual abuse cases that came through DSS.
Martin had held that position for a little under a year. During
his role as a case manager, Martin had never been assigned cases,
interviewed clients, or testified regarding a child abuse case on
which he had worked. Martin had also not done any clinical or
other research nor participated in internships related to child
sexual abuse.
Martin testified he has run a part-time private practice as a
counselor since 1995. During this time, he treated approximately
one hundred children using “a Christian modality and perspective”
but never developed treatment plans in conjunction with mental
health. Martin further indicated there was “a lot of literature”
illustrating the benefit of a joint interview between law
enforcement and DSS of the victim of child sexual abuse. According
to Martin, it is this joint interview process that enables the
investigators to determine whether the victim is credible.
At the conclusion of Martin's voir dire testimony and over
Defendant's objection, the trial court denied Defendant's request
to permit Martin to testify as an expert because it found Martin
was not qualified as an expert in the proffered fields. Offering
no further witnesses, Defendant rested his case. In instructing the jury on the crime of felonious child abuse
by sexual act, the trial court stated:
For you to find . . . [D]efendant guilty of
this offense, the [S]tate must prove three
things beyond a reasonable doubt. First, that
. . . [D]efendant was the parent of or legal
guardian of the child. I instruct you that a
stepfather is a parent. Second, that at the
time that child had not yet reached her 16th
birthday. And third, that . . . [D]efendant
committed a sexual act upon that child. A
sexual act is an immoral, improper or indecent
touching or act by . . . [D]efendant upon the
child or an inducement by . . . [D]efendant of
an immoral or indecent touching by the child
for the purpose of arousing or gratifying
sexual desire.
The jury returned a verdict of not guilty as to the charges of
statutory sexual offense, crime against nature, and one count of
indecent liberties with a child. The jury found Defendant guilty
of (1) felonious child abuse by a sexual act based on the acts
committed in August 1999 and (2) the count of indecent liberties
with a child relating to the events on 26 September 1999.
___________________________
The issues are whether the trial court: (I) abused its
discretion in denying Defendant's motion for a bill of particulars;
(II) erred in failing to recognize Martin as an expert in the
proffered fields; (III) abused its discretion in denying
Defendant's motion to dismiss the charge of felonious child abuse;
(IV) committed plain error in instructing the jury on a theory of
felonious child abuse not charged in the indictment; and (V)
committed plain error in failing to arrest judgment on the charges
of (A) felonious child abuse and (B) indecent liberties becauseDefendant's double jeopardy rights were violated.
I
Defendant argues the trial court should have granted his
motion for a bill of particulars. We disagree.
The grant or denial of a bill of particulars lies within the
sound discretion of the trial court and is not subject to review
“'except for palpable and gross abuse thereof.'”
State v.
Easterling, 300 N.C. 594, 601, 268 S.E.2d 800, 805 (1980) (citation
omitted). “[A] denial of a defendant's motion for a bill of
particulars will be held error only when it clearly appears to the
appellate court that the lack of timely access to the requested
information significantly impaired [the] defendant's preparation
and conduct of his case.”
Id.
In this case, prior to Defendant's request for a bill of
particulars, the State had already provided Defendant with open
file discovery indicating both acts for which Defendant was being
charged. Under such circumstances, Defendant cannot argue the
denial of his motion for a bill of particulars significantly
impaired his preparation and conduct in this case.
See id.;
State
v. Williams, 355 N.C. 501, 542, 565 S.E.2d 609, 633-34 (2002)
(upholding the trial court's denial of the defendant's request for
a bill of particulars where the State had provided open file
discovery). Thus, the trial court did not abuse its discretion in
denying Defendant's motion.
II
Defendant next contends the trial court abused its discretionin failing to recognize Martin as an expert in the fields of child
sexual abuse profiles and the proper protocol for child abuse
investigations.
“Under N.C.G.S. § 8C-1, Rule 702 a witness may be qualified as
an expert if the trial court finds that through 'knowledge, skill,
experience, training, or education' the witness has acquired such
skill that he or she is better qualified than the jury to form an
opinion on the particular subject.”
State v. Goodwin, 320 N.C.
147, 150-51, 357 S.E.2d 639, 641 (1987). The trial court's
decision whether a witness possesses the necessary qualifications
to testify as an expert “is within the sound discretion of the
trial court and will not be reversed by the appellate court unless
there is a complete lack of evidence to support it.”
Pelzer v.
United Parcel Serv., 126 N.C. App. 305, 309, 484 S.E.2d 849, 851-52
(1997).
In this case, Martin's testimony during his
voir dire
examination revealed he had neither the knowledge, the skill, the
experience, the training, nor the education to qualify as an expert
in the field of child sexual abuse profiles. In addition, the fact
that Martin was aware of literature advising on the proper protocol
for child sexual abuse investigations, even if such testimony were
admissible,
(See footnote 2)
does not qualify him as an expert on proper procedure. As such, the trial court properly concluded Martin was not
qualified to testify as an expert.
III
Defendant further assigns error to the trial court's denial of
his motion to dismiss the charge of felonious child abuse.
Specifically, Defendant argues the State, which prior to trial
acknowledged the act specified in the felonious child abuse
indictment actually occurred in late August 1999 and not on 21
September 1999, failed to “present substantial evidence to support
the allegation that on or about September 21, 1999 a crime of
felony child abuse was committed by . . . [D]efendant . . . as
alleged in [the] bill of indictment.”
Because “'the date given in the bill of indictment is not an
essential element of the crime charged[,] . . . the fact that the
crime was committed on some other date is not fatal.'”
State v.
Blackmon, 130 N.C. App. 692, 696-97, 507 S.E.2d 42, 45 (1998)
(citation omitted). Moreover, “[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.”
State v.
McGriff, --- N.C. App. ---, ---, 566 S.E.2d 776, 779 (2002).
“Unless the defendant demonstrates that he was deprived of his
defense because of a lack of specificity, this policy of leniency
governs.”
State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306
(1991).
In this case, the State, prior to trial, notified Defendant of
the correct date on which it alleged the felonious child abuseoccurred. Moreover, Defendant chose not to offer any defense
evidence. As such, Defendant was not deprived of his defense
because of a lack of specificity, the trial court properly denied
Defendant's motion to dismiss.
IV
Defendant also argues the trial court committed plain error in
instructing the jury on a theory of felonious child abuse not
charged in the indictment.
Under a plain error analysis, the defendant carries the burden
of showing that an error occurred and that it “had a probable
impact on the jury's finding of guilt.”
State v. Odom, 307 N.C.
655, 661, 300 S.E.2d 375, 379 (1983). Thus, in order to find plain
error, this Court must determine that absent the error the jury
probably would have reached a different result.
Id. at 661, 300
S.E.2d at 378-79.
In this case, the trial court, in instructing the jury on
felonious child abuse by sexual act, defined a sexual act as “an
immoral, improper or indecent touching or act by . . . [D]efendant
upon the child or an inducement by . . . [D]efendant of an immoral
or indecent touching by the child for the purpose of arousing or
gratifying sexual desire.” Defendant claims this instruction is
too broad because it includes touching by Defendant and the act
alleged in the indictment as well as the evidence presented at
trial referred only to Defendant's inducement of S.L. to perform
oral sex on him. Assuming the trial court's instruction was in
error, Defendant has presented no argument in his brief to thisCourt of any prejudicial impact of the trial court's instruction on
the jury's verdict. Thus, the trial court did not commit plain
error.
See State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61
(2000) (the “[d]efendant's empty assertion of plain error, without
supporting argument or analysis of prejudicial impact, does not
meet the spirit or intent of the plain error rule”).
V
Defendant next contends the trial court committed plain error
in failing to arrest judgment on the charges of felonious child
abuse and indecent liberties based on a violation of Defendant's
double jeopardy rights.
A
Defendant's argument in respect to the charge of felonious
child abuse rests on the jury's finding of not guilty as to the
charges of statutory sexual offense and crime against nature, both
of which related to the acts alleged to have been committed at the
Days Inn in August 1999. Because, as Defendant contends, these
verdicts indicate oral sex did not occur at that time, the trial
court should have arrested the judgment and vacated the sentence
for felonious child abuse. We disagree.
This Court has held:
“It is not required that the verdict be
consistent; therefore, a verdict of guilty of
a lesser degree of the crime when all the
evidence points to the graver crime, although
illogical and incongruous, or a verdict of
guilty on one count and not guilty on the
other, when the same act results in both
offenses, will not be disturbed.”
State v. Black, 14 N.C. App. 373, 378, 188 S.E.2d 634, 637 (1972)(citation omitted). The jury's verdict in this case as to the
charges of statutory sexual offense and crime against nature
therefore is not determinative on the issue of whether oral sex
actually took place. This is especially true as the three offenses
charged are not identical in terms of the elements required to be
proven.
See N.C.G.S. § 14-27.7(a) (2001) (statutory sexual
offense); N.C.G.S. §14-177 (2001) (crime against nature); N.C.G.S.
§14-318.4(a2) (2001) (felonious child abuse).
B
Finally, Defendant asserts that because the State's actions
prior to trial “completely blurred the lines between the two
alleged crimes of indecent liberties and made them indistinct and
indistinguishable from one another[,] . . . an acquittal by a jury
of one count of indecent liberties bars, on these facts, the
judgment and conviction on the other count.” This argument has no
merit. The indictments and the State's case file made available to
Defendant clearly indicated one count of indecent liberties related
to the acts that allegedly occurred during the stay at the Days Inn
in August 1999 and the other count, of which Defendant was found
guilty, related to the events that took place at the family's home
on 26 September 1999. Accordingly, the trial court did not err in
failing to arrest judgment as to the count of indecent liberties of
which Defendant was found guilty.
No error.
Judges WYNN and BIGGS concur.
Report per Rule 30(e).
Footnote: 1