STATE OF NORTH CAROLINA
v. Person County
No. 01 CRS 5254
JOHN D. ALLEN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Anita LeVeaux, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
GEER, Judge.
Defendant John D. Allen appeals his conviction and sentence
for first degree sexual offense and taking indecent liberties with
a minor child. We find no error.
Defendant first claims that there is a "fatal variance"
between the date of the offense charged in the indictment and the
State's proof at trial regarding the date of the offense. We
disagree.
Under N.C. Gen. Stat. § 15A-924(a)(4) (2001), an indictment
must contain a statement "indicating that the offense charged was
committed on, or on or about, a designated date, or during a
designated period of time." The statute further provides, however,
that an error in the date alleged in an indictment will not requirereversal of a conviction "if time was not of the essence with
respect to the charge and the error . . . did not mislead the
defendant to his prejudice." Id.
The date or time of an offense is generally not an essential
element of the crime. State v. Whittemore, 255 N.C. 583, 592, 122
S.E.2d 396, 403 (1961). Moreover, "[i]n sexual abuse cases
involving young children, some leniency surrounding the child's
memory of specific dates is allowed." State v. Stewart, 353 N.C.
516, 518, 546 S.E.2d 568, 569 (2001). Unless defendant
demonstrates an actual impairment of his ability to present a
defense, the indictment's error or lack of specificity as to the
date of the offense will not be a ground for relief on appeal. Id.
The indictment in this case specified the two-month period of
"March-April 2001" as the date "on or about" which the offense
occurred. The child testified on direct examination that the
incident took place some time after her eighth birthday (on 31
March 2001) and after Easter. On cross-examination, the child also
testified that she believed the assault occurred in May. Donna
Potter, a clinical social worker who interviewed the child about
the incident on 29 May 2001, testified that the child indicated
that it occurred "last week." Ms. Potter explained that children
"tend to group, like it happened yesterday, last week, and last
year as sort of it happened a long time ago, a little bit a time
ago, really recently, or like, you know, just today kind of thing."
Ms. Potter clarified with the child that she meant the incident had
happened "not so long ago." Nan Tyree, a DSS Child ProtectiveServices Investigator, testified that she began her investigation
and interviewed the child on 3 May 2001, suggesting that the
incident occurred, at the latest, on the night of 2 May 2001, a
date within very close temporal proximity of "March-April 2001."
Defendant argues that because of the variance, he was deprived
of a meaningful opportunity to present an alibi defense. At trial,
defendant did not attempt to present an alibi defense for the two-
month period of March and April 2001 and he has not demonstrated
how he was prevented from offering such a defense by the, at most,
two-day extension of the time frame. As in State v. McGriff, 151
N.C. App. 631, 636, 566 S.E.2d 776, 779 (2002), "defendant offered
no alibi defense for the dates originally alleged in the
indictment, nor for the . . . dates shown by the evidence. In
fact, defendant presented no evidence at all." Accordingly,
defendant has failed to show that he was misled or prejudiced by
the alleged discrepancy. Id. at 637, 566 S.E.2d at 780.
Defendant next challenges the trial court's finding at
sentencing of the aggravating factor that he took advantage of a
position of trust and confidence to commit the offense. See N.C.
Gen. Stat. § 15A-1340.16(d)(15) (2001). A finding of this
aggravating factor requires evidence "of a relationship between the
defendant and victim generally conducive to reliance of one upon
the other." State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216,
218 (1987).
The State's evidence tended to show that defendant came to the
child's residence to visit her mother every night for more than ayear prior to the incident. During this time, defendant played
games and watched movies with the child, who was eight years old.
On the night of the offense, defendant was left alone with the
child and her sister while their mother went to the grocery store.
Defendant took advantage of this opportunity to sexually assault
the child while she slept. These facts are sufficient to support
the aggravating factor found by the trial judge. See State v.
McGuire, 78 N.C. App. 285, 293, 337 S.E.2d 620, 625 (1985)
(aggravating factor properly found when defendant was babysitting);
McGriff, 151 N.C. App. at 640, 566 S.E.2d at 782 (aggravating
factor properly found when defendant often alone with victim in
house over two month period).
For his final argument, defendant contends that the trial
court improperly denied him the right to cross-examine the State's
witness Donna Potter, a licensed clinical social worker at Duke
University's Center of Child and Family Health, about information
she obtained while evaluating the child. We disagree.
On direct examination, Ms. Potter testified that she met with
the child briefly on 21 May 2001 and again on 29 May 2001. On 21
May 2001, they did not specifically discuss the incident with
defendant. Ms. Potter scheduled a follow-up meeting for 29 May to
pursue "a number of concerns that [she] had from the information
[the child] had provided on the 21st." Ms. Potter then testified
that at the 29 May 2001 meeting, the child described the sexual
assault to her.
On cross-examination, defendant asked Ms. Potter about atrauma symptom checklist that she had administered to the child and
established that Ms. Potter believed the child had "hyper-
responded" or exaggerated her responses. Defendant then sought to
elicit from Ms. Potter information she had heard when interviewing
other family members such as claims of drug use by the mother in
the house and suggestions that the child may have seen the mother
engaging in sexual activity. None of this information was first-
hand. The trial court refused to allow defendant to question Ms.
Potter in front of the jury regarding this information.
Defendant does not dispute that the information the trial
court excluded would ordinarily constitute inadmissible hearsay.
Defendant argues, however, that the evidence was admissible and
relevant as a means of probing Ms. Potter's opinions as an expert
witness. Defendant is correct that under Rules 703 and 705 of the
Rules of Evidence, a party may cross-examine an expert witness
regarding "the underlying facts and data used by [the] expert in
reaching his expert opinion . . . ." State v. Golphin, 352 N.C.
364, 468, 533 S.E.2d 168, 235 (2000) (internal quotation marks
omitted), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
The proposed testimony does not, however, come within the scope of
Rules 703 and 705.
The State did not expressly tender Ms. Potter as an expert
witness. More importantly, on direct examination, Ms. Potter
offered no opinions at all. She simply recounted the child's prior
statement about the incident in order to corroborate the child's
in-court testimony. See State v. Gell, 351 N.C. 192, 204, 524S.E.2d 332, 340 ("[A] witness' prior consistent statements may be
admitted to corroborate the witness' sworn trial testimony . . .
."), cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000).
In arguing that Ms. Potter expressed an opinion during direct
examination, defendant points only to Ms. Potter's explanation as
to why she met with the child again on 29 May 2001: "It was a
follow-up. There were a number of concerns that I had from the
information she had provided on the 21st. One of the things had
been that she had described she was currently living with her
grandmother, but she didn't want to talk about why, and she agreed
she would come back and talk about that on another day." Ms.
Potter did not state what the concerns were or elaborate further.
While it is questionable whether this explanation constituted
an opinion within the meaning of Rules 703 and 705, defendant's
brief on appeal reveals that his cross-examination questions were
designed not to probe Ms. Potter's "concerns," but rather her
"Report, her Trauma Checklist, and their respective conclusions."
On direct examination, however, Ms. Potter never testified
regarding her report, the trauma checklist, or any of her
conclusions. They were the subject instead of defense counsel's
cross-examination.
As our Supreme Court has stated, when a witness testifies to
the facts that are the basis for his or her opinion, "such
testimony is not hearsay because it is not offered for the truth of
the matter, but to show the basis of the opinion." State v.
Robinson, 330 N.C. 1, 25, 409 S.E.2d 288, 302 (1991). Here,however, defendant was not attempting to bolster an opinion by
exploring its basis or to undermine an opinion by demonstrating the
weakness of its underpinnings. Instead, defendant sought to admit
Ms. Potter's hearsay testimony of drug use and sexual activity for
the truth of the matter asserted. Under those circumstances, the
trial court correctly found the testimony inadmissible. Id. at 26,
409 S.E.2d at 302 (testimony of an expert regarding an experiment
was inadmissible under Rule 703 when "the evidence would have been
admitted to prove the truth of the matter asserted and, in this
context, would be inadmissible hearsay.").
The record on appeal contains additional assignments of error
not addressed in defendant's brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***