Appeal by defendant from judgment dated 13 March 2002 by Judge
Timothy L. Patti in Lincoln County Superior Court. Heard in the
Court of Appeals 17 September 2003.
Attorney General Roy Cooper, by Assistant Attorney General Sue
Y. Little, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
Joseph L. Custis (defendant) appeals a judgment dated 13 March
2002 entered consistent with a jury verdict finding him guilty of
two counts of first-degree sexual offense and two counts of
indecent liberties with a child.
The indictments against defendant were issued on 13 August
2001 and alleged that on or about [15 June 2001] defendant
engaged in two counts of first-degree statutory sexual offense and
two counts of indecent liberties with T.H., defendant's eleven-
year-old step-grandson. At trial, the State's evidence tended to
show that defendant began living with T.H.'s grandmother two yearsprior to their marriage in March 2001.
(See footnote 1)
Before and after March
2001, T.H. stayed overnight at his grandparents' home almost every
other weekend and on some weekdays. T.H. testified that during
those visits, defendant routinely sexually abused him. T.H. could
not recall the exact date of his last stay at his grandparents'
home. T.H.'s mother testified that T.H. last spent the night at
the grandparents' home on the weekend around June 15th[, 2001]
but did not state whether defendant was at home on that date. The
trial court took judicial notice that 15 June 2001 was a Friday.
At the close of the State's evidence, defendant moved for a
dismissal of the charges and a directed verdict on the basis that
the State had failed to present evidence that the charged offenses
occurred on or about 15 June 2001. The trial court denied the
motions, and defendant proceeded with his defense. The defense
evidence indicated defendant had been admitted to a hospital at
4:00 a.m. on 15 June 2001. Hospital records showed he had remained
there until 22 June 2001. According to defendant, T.H. had [a]
lot of problems when they first met and seemed to have been
abused. T.H. looked up to defendant as a father figure and a
grandfather. Defendant further testified that, on 12 July 2001,
when T.H. told his mother and uncle he had been sexually abused by
defendant, T.H. had been to defendant's home. During that visit,
T.H. had acted as though he wanted defendant to kiss him.
Defendant had slapped T.H. on the hand and told him not to repeat
such behavior. Upset, T.H. had stomped his feet, gone outside, andpushed his younger brother. In addition, T.H.'s grandmother
testified that T.H. did not spend time at her home on 15 June 2001,
and Latasha Surratt, T.H.'s babysitter, stated he had been
troublesome and had told lies in the past. Two other witnesses
testified to defendant's good character and cordial relationship
At the close of all the evidence, defendant renewed his
motions to dismiss and for a directed verdict, which the trial
court again denied. According to a stipulation by the parties
contained in the record on appeal, the State argued to the jury
during its unrecorded closing argument that it did not matter if
the State failed to prove that [T.H.] was sexually assaulted on
June 15, 2001, for if he had not been sexually assaulted on June
15, he had been sexually assaulted during the previous weekend.
The dispositive issue is whether a fatal variance existed
between the date of the offenses charged in the indictments and the
State's evidence at trial so as to deprive defendant of the
opportunity to present an adequate defense. Specifically,
defendant contends the trial court erred in failing to dismiss the
charges against him because the State's evidence presented at trial
did not establish he committed the charged offenses on or about 15
June 2001 as alleged in the indictments.
Although [a]n indictment must include a designated date or
period of time within which the alleged offense occurred, a
judgment will not be reversed because an indictment states an
incorrect date or time frame if (1) time is not of the essence ofthe offense and (2) the error or omission did not mislead the
defendant to his prejudice. State v. Stewart
, 353 N.C. 516, 517,
546 S.E.2d 568, 569 (2001). Generally, the time listed in the
indictment is not an essential element of the crime charged. Id
at 517-18, 546 S.E.2d at 569 (citing State v. Whittemore
, 255 N.C.
583, 592, 122 S.E.2d 396, 403 (1961)). Furthermore, in child
sexual abuse cases our Courts have adopted a policy of leniency
with regard to differences in the dates alleged in the indictment
and those proven at trial. State v. McGriff
, 151 N.C. App. 631,
635, 566 S.E.2d 776, 779 (2002).
Even in child sexual abuse cases, however, [a] variance as to
time . . . becomes material and of the essence when it deprives a
defendant of an opportunity to adequately present his defense.
State v. Price
, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984); see
, 353 N.C. at 518, 546 S.E.2d at 569 (applying this
principle in a child sexual abuse case). The purpose of the rule
as to variance is to avoid surprise, and the discrepancy must not
be used to ensnare the defendant or to deprive him of an
opportunity to present his defense. State v. Guffey
, 39 N.C. App.
359, 362, 250 S.E.2d 96, 98 (1979) (citation omitted). As this
Court further explained in State v. Booth
Time variances do not always prejudice a
defendant so as to require dismissal, even
when an alibi is involved. Thus, a defendant
suffers no prejudice when the allegations and
proof substantially correspond; when [a]
defendant presents alibi evidence relating to
neither the date charged nor the date shown by
the State's evidence; or when a defendant
presents an alibi defense for both dates.
However, when the defendant relies on the date
set forth in the indictment and the evidence
set forth by the State substantially varies tothe prejudice of [the] defendant, the
interests of justice and fair play require
that [the] defendant's motion for dismissal be
State v. Booth
, 92 N.C. App. 729, 731, 376 S.E.2d 242, 244 (1989)
(citations omitted); see Stewart
, 353 N.C. at 518, 546 S.E.2d at
569 (citing Booth
, our Supreme Court, finding a dramatic and fatal
variance between the indictment and the evidence presented at
trial, noted that the defendant had prepared and presented alibi
evidence in direct reliance on the indictment listing the date of
the offense as 7-01-1991 to 7-31-1991. Stewart
, 353 N.C. at 518,
546 S.E.2d at 569. The indictment noted only the month of July
1991 as the period of time of the sexual assaults charged, and the
defendant presented evidence of his whereabouts for each day of
that month. During its case-in-chief, the State introduced
evidence concerning sexual encounters between the victim and the
defendant over a two-and-one-half-year period but failed to present
any evidence of a specific act occurring during July 1991.
Although the victim testified that the assaults began in 1989 and
continued for two and a half years, he also did not testify to any
offense occurring in July 1991. Id
. at 519, 546 S.E.2d at 570.
Based on this evidence and the defendant's reliance thereon for
purposes of shaping his alibi defense, the Supreme Court held that
[u]nder the unique facts and circumstances of this case, . . . the
dramatic variance between the date set forth in the indictment and
the evidence presented by the State prejudiced defendant by
depriving him 'of an opportunity to adequately present his
. (citation omitted). The case sub judice
appears to involve almost the same unique
facts and circumstances as Stewart
. In the instant case, there
was no evidence presented of sexual acts or indecent liberties
occurring on or about June 15. The language in the indictment, on
which defendant obviously relied in building his alibi defense for
the 15 June 2001 weekend, was not supported by the evidence.
Instead, T.H. testified that the sexual abuse occurred during
weekend visits to his grandparents' home and that he had begun
staying with his grandparents on weekends two years prior to their
marriage in March 2001. The mother in turn testified that T.H. had
stayed at the grandparents' home on the weekend around 15 June
2001, but neither the mother nor T.H. testified that defendant was
present at the time or that any sexual abuse occurred on that date.
Thus, all of the evidence presented at trial went to sexual
encounters over a period of years ending some time prior to the
date listed in the indictment. As in Stewart
, we hold that such a
dramatic variance between the indictment date and the evidence
adduced at trial prejudiced defendant by denying him the
opportunity to present an adequate defense. Id
.; see also State v.
, 307 N.C. 645, 650, 300 S.E.2d 381, 384 (1983) (finding
fatal variance where the defendant relied on the indictment in
shaping his alibi defense and the State's 'bait and switch'
routine forced the defendant to defend his actions over a period
of time much greater than the time specified in the indictment).
As the trial court erred in failing to dismiss the charges, we
vacate the judgment.
Vacated. Chief Judge MARTIN and Judge GEER concur.