Both the State and defendant offered evidence. The State
called as witnesses the victim H.P.; H.P.'s mother and defendant's
former wife, Patricia Welch; Detective Beaver, who had taken
statements from H.P. and her mother; and Dr. Christopher Cerjan,
who had examined and interviewed H.P. Defendant testified on his
own behalf, re-called Ms. Welch as a witness, and offered the
testimony of three character witnesses.
The evidence viewed in the light most favorable to the State
tended to show the following. H.P. lived with her mother and
defendant (who was her father) at three different locations. Until
she was age seven, they lived on Artree Road; from age seven untilage ten, they lived at Juniper Terrace; from sometime in 1997 until
August 1999, they lived on Padgett Road; and from August 1999
through October 1999, they lived on Gaffney Road. The transcript
does not reveal H.P.'s date of birth, but the record on appeal
states: "Although it is unclear from the transcript, [H.P.]'s date
of birth, as established by the documentary evidence[,] is October
H.P. testified that when she was living on Artree Road, at
"[a]round 5 or 6" years of age, defendant on one occasion touched
her breasts and between her legs. H.P. testified that when she was
"[a]round seven" and living at Juniper Terrace, defendant digitally
penetrated her. H.P. also testified about three separate occasions
on which defendant forced her to squeeze his penis. Detective
Beaver testified that H.P. had told him about a second instance in
which defendant digitally penetrated her.
After H.P. moved to Padgett Road (when she was age ten or
eleven), defendant engaged in sexual intercourse with her and then
inserted his tongue in her vagina. She testified about a
subsequent second instance of sexual intercourse also when she was
"[a]round 10." Detective Beaver testified that H.P. reported to
him that defendant had, on other subsequent occasions at Padgett
Road, squeezed her breast, digitally penetrated her, and performed
H.P. testified that defendant again engaged in sexual
intercourse with her after they moved to Gaffney Road in August
1999. Her parents subsequently separated, but she and her brothers
visited defendant at his apartment. H.P. testified that one day inJanuary 2000, H.P., her brothers, and defendant were all lying on
the same bed in defendant's apartment. Defendant touched her on
top of her clothes.
Detective Beaver testified, without any objection or limiting
instruction, about H.P.'s statements to him. He confirmed that
H.P. had told him about some of the incidents to which she
testified and that she had reported to him some additional events
to which she did not testify at trial.
Dr. Cerjan, a pediatrician, was accepted by the trial court as
an expert in pediatrics and child sexual abuse. Dr. Cerjan took a
history from H.P. and performed a full physical examination. Dr.
Cerjan testified, without any objection or limiting instruction,
that H.P. had told him about the incident at Artree Road when she
was age five, about two incidents "[a]round age 7" when defendant
forced her to touch his "privates," about two incidents of sexual
intercourse (one at Padgett Road and one at Gaffney Road), and
about defendant's touching her in January 2000. During the
physical examination, Dr. Cerjan observed: "She had some tissue
where the skin around her privates was somewhat thickened and what
we would call redundant. On closer examination, her hymen was
missing on the right side with some irregular borders of the hymen
that was from about 4 to 6 o'clock." Dr. Cerjan expressed his
opinion, without any objection, that H.P. had been sexually abused
with some form of penetration.
Defendant was originally indicted on fifteen separate charges
arising out of the alleged sexual abuse of his daughter H.P. from
1993 through January 2000. At the close of the State's evidence,the State dismissed three charges of first degree sexual offense
and six charges of indecent liberties with a child. Two charges of
rape, two charges of first degree sexual offense, and two charges
of indecent liberties were submitted to the jury. The jury
acquitted defendant of both rape charges and one indecent liberties
charge. It convicted him of both charges of first degree sexual
offense (alleged in the indictments as occurring between 1 June
1994 and 31 July 1994 and between 8 October 1997 and 16 October
1997) and the remaining indecent liberties charge (alleged in the
indictment as occurring between 1 May 1993 and 31 December 1993).
The trial court initially sentenced defendant to a
consolidated sentence of 230 to 285 months in accordance with the
Structured Sentencing Act. See N.C. Gen. Stat. § 15A-1340.17(c),
(e) (2003). Approximately three and a half months later, the State
moved to resentence defendant on the grounds that the indecent
liberties conviction and one of the first degree sexual offense
convictions were based on events occurring before the Structured
Sentencing Act went into effect on 1 October 1994. See N.C. Gen.
Stat. § 15A-1340.10 (2003). The State argued that as to these two
convictions, defendant should instead have been sentenced under the
Fair Sentencing Act as in effect prior to 1 October 1994. See N.C.
Gen. Stat. § 14-1.1(a)(2) (1993) (repealed 1993 N.C. Sess. Laws ch.
538, § 2). The court granted the State's motion and entered an
amended judgment, consolidating the indecent liberties conviction
and the first degree sexual offense conviction based on the 1994
acts, and imposing a life sentence. The court also imposed aconcurrent sentence of 230 months to 285 months for the second
first degree sexual offense conviction.
 Defendant argues first that the trial court erred in
denying his motion to dismiss the charges of first degree sexual
offense. A trial court properly denies a defendant's motion to
dismiss "[i]f there is substantial evidence _ whether direct,
circumstantial, or both _ to support a finding that the offense
charged has been committed and that the defendant committed it . .
. ." State v. Locklear
, 322 N.C. 349, 358, 368 S.E.2d 377, 383
(1988). "Substantial" evidence is such "relevant evidence that a
reasonable mind might accept as adequate to support a conclusion."
State v. Vick
, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
If, however, the evidence "is sufficient only to raise a suspicion
or conjecture as to either the commission of the offense
identity of the perpetrator, the motion to dismiss should be
allowed. This is true even though the suspicion is strong." State
, 310 N.C. 399, 404, 312 S.E.2d 470, 473 (1984) (citations
omitted). The evidence must be viewed in the light most favorable
to the State, giving the State the benefit of every reasonable
inference to be drawn from it. Locklear
, 322 N.C. at 358, 368
S.E.2d at 382.
Defendant does not contend that the record lacks substantial
evidence that he committed the offenses, but rather argues that
dismissal was appropriate because of a lack of evidence that the
offenses were committed during the periods specified in the
indictments. While an indictment must include a designated date orperiod of time within which it alleges the offense occurred, N.C.
Gen. Stat. § 15A-924(a)(4) (2003), our courts have recognized the
general rule that "[w]here time is not of the essence of the
offense charged and the statute of limitations is not involved, a
discrepancy between the date alleged in the indictment and the date
shown by the State's evidence is ordinarily not fatal." State v.
, 33 N.C. App. 647, 653-54, 236 S.E.2d 376, 380, disc.
293 N.C. 363, 237 S.E.2d 851 (1977). Nevertheless,
as our Supreme Court has stressed,
[t]his general rule, which is intended to
prevent "a defendant who does not rely on time
as a defense from using a discrepancy between
the time named in the bill [of indictment] and
the time shown by the evidence for the State,
cannot be used to ensnare a defendant and
thereby deprive him of an opportunity to
adequately present his defense."
State v. Stewart
, 353 N.C. 516, 518, 546 S.E.2d 568, 569 (2001)
(quoting State v. Whittemore,
255 N.C. 583, 592, 122 S.E.2d 396,
Our courts have also adopted a principle of leniency regarding
dates when the case involves a child's testimony. The Supreme
Court explained in Stewart
, 353 N.C. at 518, 546 S.E.2d at 569
(citations and internal quotation marks omitted), "[i]n sexual
abuse cases involving young children, some leniency surrounding the
child's memory of specific dates is allowed. Unless the defendant
demonstrates that he was deprived of his defense because of lack of
specificity, this policy of leniency governs."
A. Application of the General Rule
Indictment 00 CRS 55038 charged defendant with first degree
sexual offense and alleged that the acts took place during theperiod 1 June 1994 through 31 July 1994. At trial, H.P. testified
that the incident occurred when she was "[a]round seven" while she
was living at Juniper Terrace, her residence from age seven until
she was approximately age ten. Detective Beaver testified that
H.P. had told him that the incident occurred when she "was seven
years old." H.P. turned seven years old on 8 October 1994.
Indictment 00 CRS 55042 alleged the occurrence of a first
degree sexual offense between 8 October 1997 and 16 October 1997.
The parties agree that this instance of first degree sexual offense
occurred at the same time as the first alleged rape. The victim
H.P. testified that it occurred when she was "[a]round 10" and
maybe at age eleven, while the family was living at Padgett Road.
H.P. turned ten on 8 October 1997. Defendant testified that they
lived at Padgett Road from 1997 until August 1999.
Defendant did not assert an alibi defense regarding the dates
of the first degree sexual offenses or rely in any other manner
upon the dates in the indictments in preparing his defense. Under
the general rule, any variance between the dates in the indictments
and the evidence would, therefore, not be material. Stewart
N.C. at 518, 546 S.E.2d at 569. Moreover, this Court has already
held that evidence comparable to that presented in this case is
sufficient given the principle of leniency for child witnesses in
sexual abuse cases. State v. Blackmon
, 130 N.C. App. 692, 697, 507
S.E.2d 42, 46 (when date of offense was not material, testimony of
minor child that sexual acts "occurred when she was seven years old
and that some of those acts happened when it was cold outside and
some when it was warm outside" was sufficient for an indictmentspecifying the time frame of 1 January 1994 through 12 September
1994), cert. denied,
349 N.C. 531, 526 S.E.2d 470 (1998).
Defendant argues, however, that the dates of the offenses are
material because of the effect of the Double Jeopardy Clause and,
as to indictment 00 CRS 55038, because of the need to determine
whether defendant should be sentenced under the Fair Sentencing Act
or the Structured Sentencing Act. We consider these arguments
B. Double Jeopardy
Defendant contends that the State's dismissal of nine of the
fifteen indictments made the dates of the offenses material.
According to defendant, unless the date alleged in the indictment
is deemed material, the jury could have convicted him of an offense
already dismissed in violation of the Double Jeopardy clause.
Defendant is correct that jeopardy attached with respect to the
charges dismissed by the State at the close of its evidence. See
State v. Vaughan
, 268 N.C. 105, 107, 150 S.E.2d 31, 32-33 (1966)
(jeopardy attaches as soon as a defendant in a criminal prosecution
is placed on trial on a valid indictment, before a court of
competent jurisdiction, after arraignment, after plea, and when a
competent jury has been empaneled and sworn). We do not, however,
believe that this fact requires dismissal of indictments 00 CRS
55038 and 00 CRS 55042.
The State dismissed three first degree sexual offense
indictments: 00 CRS 55049 alleging occurrence between 8 October
1994 and 7 October 1995, 00 CRS 55048 alleging occurrence between
1 January 1997 through 7 October 1997, and 00 CRS 55043 allegingoccurrence between 1 November 1997 and 31 December 1997. That
dismissal left only 00 CRS 55038 alleging occurrence between 1 June
1994 and 31 July 1994 and 00 CRS 55042 alleging occurrence between
8 October 1997 and 16 October 1997.
The evidence reflected five separate incidents amounting to
first degree sexual assault. H.P. testified about an initial
incident of digital penetration occurring while she lived at
Juniper Terrace when she was approximately seven years of age. She
testified that when she was living at Padgett Road, there was a
second incident of first degree sexual assault involving
cunnilingus, which occurred at the same time she was raped.
Detective Beaver and Dr. Cerjan provided corroborating testimony
regarding the first instance of sexual assault at Juniper Place as
well as the rape and cunnilingus at Padgett Road. Detective
Beaver, however, also reported a subsequent, separate instance of
first degree sexual assault at Juniper Terrace involving digital
penetration and two subsequent, separate instances at Padgett Road
involving digital penetration and cunnilingus.
In other words, the number of first degree sexual offense
incidents corresponded to the number of indictments issued. As a
result, the circumstances of this case do not present a double
jeopardy concern. If, as the general rule provides, the date of
the offense is not material, then the critical issue is whether
there is an indictment for each alleged offense. When, as here,
there is a corresponding number of indictments and offenses, then
double jeopardy would only be a concern if the dates on the
indictment were material. Defendant's argument becomes circular. If, hypothetically, more indictments had been issued than
incidents, then defendant's contention might be valid. As Judge
McCrodden noted in her concurring opinion in State v. McKinney
N.C. App. 365, 375, 430 S.E.2d 300, 306 (McCrodden, J., concurring)
(quoting State v. Wise,
66 N.C. 120, 124 (1872)), appeal dismissed
and disc. review denied,
334 N.C. 437, 433 S.E.2d 182 (1993),
absent evidence of the same number of incidents as indictments
"time would have a 'most important effect upon the punishment,'
because defendant would have received two consecutive [terms of
imprisonment] for identical offenses based upon the same act, in
violation of defendant's Fifth Amendment right not to be twice
tried for the same offense."
With respect to indictment 00 CRS 55042, defendant also argues
that the State dismissed the wrong indictment, pointing to the fact
that the indictment for rape bore the time frame of 1 January 1997
through 7 October 1997, the same period specified in the dismissed
indictment 00 CRS 55048 for first degree sexual offense. The
jury's verdict of not guilty as to that rape charge, however,
supports the State's contention that the jury was careful in
distinguishing among dates. The jury could reasonably conclude,
based on the trial court's instructions, that the State had failed
to prove that a rape occurred during the period 1 January 1997
through 7 October 1997 if it also concluded that the
contemporaneous sexual offense occurred on another date.
Accordingly, we find that double jeopardy concerns do not,
under the circumstances of this case, render the dates of the
C. Fair Sentencing Act
 As to indictment 00 CRS 55038, defendant contends that the
date of the offense is material because that date is dispositive in
deciding whether defendant should be sentenced under the Fair
Sentencing Act or the Structured Sentencing Act. Structured
sentencing "applies to criminal offenses in North Carolina . . .
that occur on or after October 1, 1994." N.C. Gen. Stat. § 15A-
1340.10. If the offense occurred prior to 1 October 1994,
defendant was required to be sentenced to life in prison as a Class
B felon under the Fair Sentencing Act. On the other hand, if the
crime took place on or after 1 October 1994, the trial court was
required to sentence defendant as a Class B1 felon to a term of
months under the Structured Sentencing Act.
We disagree that this fact rendered the date of the offense
material for purposes of reviewing defendant's conviction. The
date does not have any bearing on whether or not defendant
committed the offense. Defendant's argument addresses only whether
defendant was properly sentenced.
When a defendant challenges the trial court's sentence, the
"standard of review is 'whether [the] sentence is supported by
evidence introduced at the trial and sentencing hearing.'" State
v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997)
(quoting N.C. Gen. Stat. § 15A-1444(a1) (Cum. Supp. 1996)). We
hold that the evidence introduced at trial and during the
sentencing hearing was insufficient to permit the trial court to
sentence defendant under the Fair Sentencing Act. See State v.Branch, 134 N.C. App. 637, 639-40, 518 S.E.2d 213, 215 (1999)
(trial court was required to apply the Fair Sentencing Act to
crimes committed on 19 September 1994 and the Structured Sentencing
Act to crimes committed on 4 October 1994 "as a matter of law").
The victim H.P. testified that the incident occurred when she
was "[a]round seven"; Detective Beaver testified twice that H.P.
reported to him that "at this time [she] was seven years old." The
record contains no other evidence as to the date of the occurrence.
Since H.P. turned seven years old on 8 October 1994, a week after
structured sentencing went into effect, H.P.'s statement to
Detective Beaver would indicate that the incident occurred after 1
October 1994. The testimony that it occurred when H.P. was
"[a]round seven" _ a time frame arguably covering more than a year
with the critical date at its center _ supports only a suspicion or
conjecture that the crime occurred prior to 1 October 1994.
This testimony is not sufficient to meet the State's burden of
establishing that defendant should be sentenced under the Fair
Sentencing Act. See United States v. Knowles, 66 F.3d 1146, 1164
(11th Cir. 1995) (In order for the defendant to be sentenced under
the Federal Sentencing Guidelines, in effect for offenses occurring
after 1 November 1987, "[t]he government was required to prove that
the conspiracy continued after November 1, 1987, and . . . they
failed to carry their burden. We therefore vacate the defendants'
sentences, and remand for resentencing pursuant to pre-Guidelines
law."), cert. denied sub nom. Wright v. United States, 517 U.S.
1149, 134 L. Ed. 2d 568, 116 S. Ct. 1449 (1996); United States v.
Harrison, 942 F.2d 751, 760 (10th Cir. 1991) ("The governmentsimply has not met its burden of establishing that the . . .
conspiracy continued past the effective date of the sentencing
guidelines."). Because the State has failed to meet its burden of
demonstrating that the more severe sentencing statute is
applicable, we remand 00 CRS 55038 for resentencing under the
Structured Sentencing Act. See Bell v. United States, 349 U.S. 81,
83, 99 L. Ed. 905, 910, 75 S. Ct. 620, 622 (1955) ("It may fairly
be said to be a presupposition of our law to resolve doubts in the
enforcement of a penal code against the imposition of a harsher
 As to all three convictions, defendant contends that the
trial court erred in denying the jury's request that it be read a
portion of the transcript of defendant's testimony. We hold that
the trial court did not abuse its discretion.
During deliberations, the jury submitted a request in writing:
"Could we have read, to us the transcript when Mr. Poston stated to
his wife, that he may have done something to [H.P.] that he should
not have done. Or have a copy of his testimony?" In his
testimony, Mr. Poston had denied any such statement, but his wife
had testified that he told her, "I think I done something to [H.P.]
that I shouldn't have done." Counsel for defendant had no
objection to submitting Mr. Poston's testimony to the jury, but
resisted the State's request that the court also provide the jury
with his wife's testimony. The trial court expressed concern about
emphasizing one portion of the evidence over another and stated,"In the exercise of my discretion, I'm going to tell them that they
need to rely upon their memory of the evidence as presented."
Under N.C. Gen. Stat. § 15A-1233(a) (2003), the decision
whether to allow a jury to review trial testimony lies within the
discretion of the trial court. This Court reviews the trial
court's exercise of discretion to determine whether the ruling
"'was so arbitrary that it could not have been the result of a
reasoned decision.'" State v. Perez, 135 N.C. App. 543, 555, 522
S.E.2d 102, 110 (1999) (quoting State v. Dial, 122 N.C. App. 298,
308, 470 S.E.2d 84, 91, disc. review denied, 343 N.C. 754, 473
S.E.2d 620 (1996)), appeal dismissed and disc. review denied, 351
N.C. 366, 543 S.E.2d 140 (2000). When, as here, the trial court
expressed concern that allowing the jury to hear Mr. Poston's
testimony, but not his wife's, would emphasize one portion of the
evidence over another, we hold that the trial court did not abuse
its discretion. Id.