State v Vincent, (02-1165) 11/18/2003

Appeal by defendant from judgment entered 14 December 2001 by Judge Howard E. Manning, Jr. in the Superior Court in Orange County. Heard in the Court of Appeals 14 May 2003.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

Stowers & James, P.A., by Paul M. James, III, for defendant- appellant.

    HUDSON, Judge.

    On 23 April 2001, defendant was indicted on three charges: attempted first-degree statutory sexual offense (No. 01 CRS 2111); first-degree statutory sexual offense (No. 01 CRS 51216); and second-degree kidnapping (No. 01 CRS 2112). The defendant was tried before a jury during the 11 December 2001 criminal session of the superior court in Orange County. At the close of the evidence, the court dismissed the second-degree kidnapping charge, and submitted the remaining two charges to the jury.
    The jury returned a verdict in open court in case number 01 CRS 51216 of not guilty and a verdict in case number 01 CRS 2111 of guilty of attempted first-degree sexual offense. On the verdictsheets, the numbers were stricken and switched by hand. Upon these verdicts, on 14 December 2001, the trial court found that defendant had a prior record level II and entered judgment sentencing him to a term of imprisonment between 180 and 225 months, for attempted first-degree sexual offense.
    Defendant contends (1) that the unexplained alteration of the jury verdict sheets after they were read to the trial court was plain error or error, (2) that the short-form indictments used by the State were unconstitutional, (3) that the trial court erred by allowing into evidence statements made by the victim to a detective at the victim's home and the police station, (4) that his motion to dismiss the attempt charge should have been granted because the State's affirmative response to his motion for a bill of particulars indicated that all the alleged incidents occurred in the bathroom, not the bedroom, of the victim's home, (5) that the trial court erred by admitting the testimony of the State's expert witness, (6) that the trial court erred by denying his requested jury instructions regarding witness bias and prior bad acts, and (7) that the trial court committed plain error by sentencing him at a prior record level II. For the following reasons, we find no error.

    The State's evidence at trial tended to show the following: The victim in this case was an eight-year-old girl. She lived with her father, step-mother, brother, and sister. The defendant, who was then nineteen-years old, was a friend of the father. He hadlived with the victim's family for a period of time before the date of the offenses, but was asked to move out when he violated a number of house rules. In particular, defendant allowed women to visit him at the victim's home and one of his guests stole a pair of the victim's shoes.
    On the afternoon of 15 March 2001, when defendant was no longer living in the victim's home, he returned to the home to look for a compact disc. The victim and her eleven year old brother were the only people home at the time.
    Shortly after defendant entered the home, the victim's step- mother, Saundra Ragland, arrived. When she saw defendant she asked him to leave, and he did. The victim was crying and upset and told her step-mother that “[defendant] tried to do it with me.” The step-mother then called the police.
    Detective Chappell, the first officer to arrive, interviewed the victim within an hour after the alleged events. Although the victim was upset at first, Det. Chappell managed to calm her down before she began the interview. The victim told Det. Chappell that she was in her bedroom sweeping the floor when defendant walked in, pulled her pants down, and tried to “stick his hot dog in her butt.” The victim said she turned around and slapped defendant, and then walked into the adjacent bathroom. Defendant followed her into the bathroom and closed and locked the door. He pulled his pants down and sat down on the toilet. He pulled the victim's clothes down, picked her up, and repeated the act. The victim told Det. Chappell that it hurt.    That same day, after the interview with Det. Chappell at her home, the victim was taken to the hospital for a rape kit examination. Neither the examining physician nor the trained sexual assault nurse, Joyce Moore, discovered any physical evidence of any sexual contact. At trial, the court received Ms. Moore as an expert for the State in child sexual assault. On direct examination she testified that a finding of no medical evidence was not inconsistent with sexual assault. On cross-examination she testified that an absence of medical evidence would also be consistent with no sexual assault.
    The day after the alleged assault, the victim was again interviewed by Det. Chappell at the police station. In her second interview, the victim repeated the story she told in the first interview. There was no description of the victim's demeanor at the time of the second interview.
    On 3 May 2001, defendant moved to dismiss the indictments against him “as being over broad and inadequate to apprize the defendant of the charges in order to prepare an adequate defense or protect him from double jeopardy.” The trial court denied the motion. On the same day, defendant also moved for a bill of particulars. The State filed a response indicating that the alleged first-degree statutory sexual offense and the attempted statutory sexual offense both occurred in the bathroom of the victim's home.
    At trial, the victim testified that the alleged first-degree statutory sexual offense occurred in the bathroom. After thevictim's testimony, Det. Chappell testified, over defendant's objections, about the victim's two statements to her that the alleged attempted offense occurred in the bedroom. Defendant objected to Det. Chappell's testimony on two grounds: (1) that the testimony was inadmissable hearsay; and (2) that the State's response to his motion for a bill of particulars indicated that all the alleged conduct happened in the bathroom. As a result, he argues, he had not prepared a defense to the alleged conduct in the bedroom. The trial court overruled both of defendant's objections.
    At the close of all the evidence, defendant requested a number of specific jury instructions. In particular, defendant requested an instruction on the relevance of prior bad acts by defendant and possible witness bias. The trial court declined to give the requested instructions. Instead, the trial court gave the pattern jury instruction for witness bias and, following oral delivery of the entire charge, provided the jury in writing the elements of each of the alleged offenses. The instruction for the attempt, labeled “BEDROOM CHARGE,” listed the elements that the State must prove beyond a reasonable doubt, and gave the jury two choices: guilty of attempted first-degree statutory sexual offense; or not guilty. The written instruction for first-degree statutory sexual offense, labeled “BATHROOM CHARGE,” listed the elements that the State must prove beyond a reasonable doubt, and gave the jury three choices: guilty of first-degree statutory sexual offense; guilty of attempted first-degree statutory sexual offense, a lesser included offense; or not guilty. The jury returned its verdict of guilty ofattempted first-degree sexual offense and not guilty of the attempt charge.
    During the sentencing hearing, the State offered a worksheet showing that defendant had a prior record level of II. The trial court addressed defendant's counsel to ensure that she understood the worksheet and its relevance to defendant's sentencing. Defendant's counsel did not object to the worksheet. Consequently, the trial court found defendant to be a prior record level II and sentenced him to prison for 180 to 225 months, for the attempted first-degree sexual offense.
    At some point after the verdicts were accepted by the court and recorded, the verdict sheet that originally bore the typewritten file number 01 CRS 51216, and which has the verdict of not guilty of attempted first-degree sexual offense marked upon it, was altered by hand to bear the file number 01 CRS 2111. The verdict sheet that originally bore the typewritten file number 01 CRS 2111, and which shows the verdict of guilty of attempted first- degree sex offense marked upon it, was altered to bear the file number 01 CRS 51216.

    Defendant contends that the alteration of the case numbers following the reading of the verdicts was plain error or fundamental error. We disagree.
    A verdict must be unanimous, in writing, signed by the jury foreman, returned in open court, and made part of the record of acase. N.C. Gen. Stat. . 15A-1237. Moreover, “a verdict is sufficient if it can be properly understood by reference to the indictment, evidence and jury instructions.” State v. Tucker, 156 N.C. App. 53, 60, 575 S.E.2d 770, 774, disc. review granted, 357 N.C. 65, 579 S.E.2d 573 (2003) (quotation and citation omitted). In Tucker, the defendant argued that the court should have amended the judgment against him because the verdict sheets contained fourteen counts of first-degree sexual offense under G.S. . 14-27.4 rather than for statutory sexual offense of a thirteen, fourteen, or fifteen year old under G.S. . 14-27A(a) for which he was indicted. Id. at 59, 575 S.E.2d at 774. We held that the alleged error in Tucker was not fundamental because the jury in that case “had heard the indictments which included that crime, heard the evidence, and were properly instructed on that crime.” Id. at 60- 61, 575 S.E.2d at 775.
    Here, the indictments listed the alleged crimes -- one attempted sex offense, and one completed sex offense -- along with case numbers 01 CRS 2111 and 01 CRS 51216 respectively. The State presented evidence at trial to prove these alleged offenses, and the jury instructions, oral and written, accurately charged the jury on the elements of the offenses, clearly differentiating between the two. In the written instructions, the trial court labeled the attempted first-degree sexual offense as the “BEDROOM CHARGE” and gave the jury only two choices: guilty of attempted first-degree sex offense; or not guilty. Similarly, the trial court labeled the first-degree sexual offense as the “BATHROOMCHARGE” and gave the jury three choices: guilty of first-degree sex offense; guilty of attempted first-degree sexual offense; or not guilty. Finally, the choices on the verdict sheets corresponded to the options presented by the written instructions. Case numbers were not included in the instructions, oral or written. However, one verdict sheet gave the jury the two choices (guilty or not guilty) corresponding to the instructions in the attempt offense; its number was changed from the printed 01 CRS 51216 to the handwritten 01 CRS 2111, reflecting a verdict of not guilty on the attempt charge. The other the verdict sheet gave the jury the three choices (guilty, guilty of attempt, or not guilty) corresponding to the instructions in the other offense; its number was changed from the printed 01 CRS 2111 to the handwritten 01 CRS 51216, reflecting a verdict of guilty of attempted first-degree sexual offense. As altered, the verdict sheets correspond to the indictments.
    Under these circumstances, we find that the alterations to the numbers on the verdict sheets were nothing more than an effort to make the sheets reflect the true intent and meaning of the jury's verdicts. State v. Whisenant, 149 N.C. 515, 63 S.E. 91 (1908). Courts have inherent authority to correct clerical errors before the term ends. See State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (“a court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein”). The transposition of the numbers here, and thesubsequent correction, appear to us as no more than the court's correction of a clerical error. Therefore, any error committed in regards to the altered case numbers was not plain error or fundamental error. This assignment of error is overruled.

Defendant next contends that his motion to dismiss the short- form indictments should have been granted because the indictments were constitutionally deficient. We disagree.
Defendant argues that the recent decision of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), requires us to find in his favor. Defendant concedes, however, that our Supreme Court, in light of Apprendi, has upheld the validity of short-form indictments for murder cases. See State v. King, 353 N.C. 457, 546 S.E.2d 575 (2001), cert. denied, 534 U.S. 1147, 151 L. Ed. 2d 1002 (2002). Furthermore, this Court has recently upheld the validity of short-form indictments for sex offense cases. See State v. Ackerman, 144 N.C. App. 452, 551 S.E.2d 139, cert. denied, 354 N.C. 221, 554 S.E.2d 344 (2001). Thus, our Supreme Court has addressed the impact of Apprendi on our State's short-form indictments, and has found such indictments to be constitutional. This Court is bound to follow such precedent. See State v. Parker, 140 N.C. App 169, 172, 539 S.E.2d 656, 659 (2000), disc. review denied, 353 N.C. 394, 547 S.E.2d 37 (2001), cert. denied, 532 U.S. 1032, 149 L. Ed. 2d 777 (2001). Therefore, this assignment of error is overruled.

    Next, defendant argues that Det. Chappell's testimony at trial concerning the victim's statements at her home and at the police station, were inadmissible hearsay. Likewise, defendant contends that the trial court erred by allowing Det. Chappell's notes of the statements to be received in evidence and read to the jury. We disagree.
    Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. . 8C-1 Rule 801(c). Hearsay is not admissible generally, but the rules provide many exceptions. N.C. Gen. Stat. . 8C-1 Rule 802. One such exception is the excited utterance, defined as “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” N.C. Gen. Stat. . 8C-1 Rule 803(2). When the hearsay declarant is a child, the scope of the exception expands. State v. Perkins, 345 N.C. 254, 279, 481 S.E.2d 25, 35, cert. denied, 522 U.S. 837, 139 L. Ed. 2d 64 (1997).
    Here, the victim was a child who gave her first statement to Det. Chappell at her home approximately a half an hour after the alleged incident occurred. Moreover, Det. Chappell described the victim as so upset that she needed calming before she could give a statement. Under these circumstances, we cannot conclude that the court abused its discretion in admitting the testimony and notes about the victim's statements at the home, under the excited utterance exception.    The second interview (at the police station) essentially corroborated the substance of the first interview. Since the first statement was admissible, the second statement was admissible as corroboration. In addition, to the extent that the second statement varied from the first, the same or similar evidence was already before the jury so any error in allowing the second statement was harmless. See State v. Gordon, 316 N.C. 497, 506, 342 S.E.2d 509, 514 (1986). We overrule this assignment of error.

In his next argument, defendant contends the trial court committed reversible error when it denied his motion to dismiss the attempt charge, 01 CRS 2111, where the State's response to defendant's motion for a bill of particulars indicated that all the alleged incidents occurred in the bathroom, not the bedroom, of the victim's home. We disagree.
The defendant argues that he was prejudiced by the State's presenting evidence of an event in the bedroom because he had no notice or opportunity to defend against that evidence. However, defendant does not explain how, if at all, his defense would have been different. Thus, we are unable to conclude that defendant was prejudiced by the trial court's ruling on this issue. See State v. Whitfield, 310 N.C. 608, 611, 313 S.E.2d 790, 792 (1984) (“While it would have been preferable for the State to particularize both counts, rather than only the second count, defendant has failed to show prejudice as a result of the State's clarification of only the second count”). Moreover, defendant successfully mounted hisdefense to this charge as shown by the jury's verdict of not guilty of the attempted first-degree sexual offense charge, 01 CRS 2111, labeled by the trial court as “BEDROOM CHARGE.” Thus, any error committed by the trial court when it denied defendant's motion to dismiss was harmless. We overrule this assignment of error.

    Defendant next argues that the trial court erred in admitting nurse Joyce Moore's testimony as to (1) whether she has seen other children who have been abused but have no observable physical findings, and (2) whether in her opinion the absence of any physical findings was not inconsistent with the victim having been sexually abused. We disagree.
    In State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002), our Supreme Court discussed the limits of permissible expert testimony in a child sexual offense case. In the absence of physical evidence, an expert cannot opine that a child has in fact been sexually abused, because “such testimony is an impermissible opinion regarding the victim's credibility . . . .However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.” Id. at 266-7, 559 S.E.2d at 789 (citations omitted).
    Here, the trial court admitted Ms. Moore as a nurse with expertise in child abuse, neglect, and maltreatment. When she examined the victim here, Ms. Moore found no physical evidence of sexual abuse. The State asked Ms. Moore whether the absence of physical evidence was consistent with physical abuse. Ms. Moore replied that it was and referred to research done by others to support her opinion. Ms. Moore did not testify that the victim had in fact been sexually abused. In fact, on cross-examination, Ms. Moore indicated that a finding of no physical evidence would also be consistent with no sexual abuse. Thus, we conclude that Ms. Moore's testimony was permissible under Stancil.
    Defendant contends further that Ms. Moore's testimony was so prejudicial that, even if admissible, it should have been excluded under North Carolina Rule of Evidence 403. Defendant did not object to Ms. Moore's testimony on this basis. Therefore, we review for plain error. See State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983).
        [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error 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,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4^th Cir. 1982)). After reviewing the entire record, we cannot conclude that this is the exceptional case where the claimed error is sofundamental that justice could not have been done. We overrule this assignment of error.

    Defendant next contends that the trial court erred by denying his requested jury instructions regarding witness bias and prior bad acts. We disagree.
    A defendant appealing a trial court's failure to give a requested instruction “must show that substantial evidence supported the omitted instruction and that the instruction was correct as a matter of law.” State v. Farmer, 138 N.C. App. 127, 133, 530 S.E.2d 584, 588, disc. review denied, 352 N.C. 358, 544 S.E.2d 550 (2000). In addition, in order to properly bring forward an instruction error for appellate review, the defendant must include in the record on appeal “a transcript of the entire charge given.” N.C. R. App. P. 9(a)(3)(f). Here, the printed record on appeal includes only the requested instructions and that part of the charge that was given to the jury in writing. Thus, this issue is not presented in compliance with the Rules of Appellate Procedure. While this may seem quite technical, we point out that this rule serves an important practical purpose: it facilitates review of an instruction issue by all three members of our panel, even though the parties file but a single copy of the trial transcript. Nonetheless, in our discretion we review the merits of the issue. N.C. R. App. P. 2.
    Here, the trial court may have erred by refusing to give the requested witness bias instruction, but defendant cannot showprejudicial error given the instructions as a whole. The trial court gave the pattern jury instructions on the credibility of witnesses and interested witnesses, which informed the jury of similar possible reasons to evaluate a witness' testimony.
    Regarding the requested prior bad acts instruction, the State argues that the court properly refused the request because the evidence did not support his request. The defendant's requested instruction would have informed the jury not to consider any evidence of defendant's use of drugs or alcohol in addressing the elements of the offenses with which he was charged. Defendant's trial counsel again requested the instructions because she intended to “bring out in argument this background of [defendant] hanging out with [victim's father] doing drugs.” Again, the trial court denied defendant's request. Since there was no evidence submitted at trial to show that defendant had participated in such conduct or committed a crime, and the defendant, through his trial counsel's closing argument, purposefully put his conduct in front of the jury, we conclude that there is not substantial evidence supporting his requested prior bad acts instruction. Therefore, the trial court properly denied his request. This assignment of error is overruled.

    Finally, defendant contends that the trial court committed plain error in sentencing him at prior record level II criminal history without either a stipulation from defendant or evidence from the State. We disagree.    Defendant failed to object to the trial court's finding that he had a prior record level II criminal history. Thus, defendant urges us to apply a plain error standard of review to this assignment of error. After reviewing the entire record, we cannot conclude that the alleged error, if any, was fundamental or that justice could not have been done.
    For sentencing purposes, proof of prior convictions may be made by stipulation of the parties or any other method the court finds to be reliable. N.C. Gen. Stat. . 15A-1340.14(f) (2001). However, a “worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.” State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002).
    Here, the State submitted a prepared worksheet listing the purported prior convictions of defendant. By itself, the worksheet would have been insufficient evidence to establish defendant's criminal history as a prior record level II. The following dialogue occurred during the sentencing phase of defendant's trial:
    Court: . . .
            Now, I don't know anything about [defendant's] prior criminal record, if he has one at all, but that would factor into the prior record level within the grid that I have to consider sentencing on.
            [Prosecutor]: Your Honor, the state would submit __ if I can approach.
            Court: What [the prosecutor] is going to give me is called a sentencing work sheet, which tells me what the defendant's prior record level is for structured sentencing.
            Ms. Seahorn [defendant's trial counsel], you're looking at it. This is something everybodyshould have done __ known about before we get to this juncture. [Defendant], according to what's on the work sheet, has got convicted of two misdemeanor injuries to personal property, one misdemeanor larceny, and one misdemeanor posession of stolen goods. All of those are misdemeanors __ no felonies and nothing like this before __ which would make him a prior record level II.
    [Prosecutor]: That's correct, Your Honor.
    Court: All right. Prior record level II.
    [Prosecutor]: Yes, sir.
We see no meaningful distinction between this case and Eubanks, where this Court held that the defendant stipulated to his prior convictions by not objecting when the State handed the judge a prepared worksheet showing defendant's prior convictions. Eubanks, 151 N.C. App. at 504-06, 565 S.E.2d at 742-3. Also, in Eubanks, as here, the defendant did not assert that the worksheet was incorrect, or that there was an error in the computation of his prior record level. Id. In sum, we see no plain error and this assignment of error is overruled.