STATE OF NORTH CAROLINA
v
.
Martin County
No. 01 CRS 50707
MILTON LEROY LAWRENCE
Joseph E. Zeszotarski, Jr., for defendant-appellant.
Roy Cooper, Attorney General, by Laura E. Crumpler, Assistant
Attorney General, for the State.
STEELMAN, Judge.
Defendant, Milton Leroy Lawrence, appeals a conviction for
statutory rape, vaginal intercourse by a substitute parent, incest
between near relatives, and indecent liberties with a child. For
the reasons discussed herein, we find no error.
S.H. testified about an incident that occurred in May 2001,
when she was 13 years old. S.H. testified that defendant, her
stepfather, entered her bedroom, put his hand on her leg, laid on
top of her, “started pulling off my clothes and he inserted his
penis in my vagina.” She said defendant ejaculated, then got off
of her and left the room.
The State's evidence also tended to show that at the time of
the incident, S.H. lived in Martin County with defendant, hermother, Denise Lawrence, and her younger sister. Mrs. Lawrence saw
defendant leaving S.H.'s room on the night in question around 2:30
a.m. Mrs. Lawrence asked defendant what he was doing in S.H.'s
room, and defendant said he went to turn off the fan. When Mrs.
Lawrence looked in S.H.'s room, the fan was still on. Two
days later, S.H. told her mother about the incident. Mrs. Lawrence
purchased a lock for S.H.'s room. Defendant did not come into
S.H.'s room after the lock was installed.
After S.H. told her mother about the incident, Mrs. Lawrence
took S.H. to Roanoke Women's Clinic. At the clinic, S.H. and Mrs.
Lawrence met with Nancy Bullock from the Martin County Department
of Social Services. Mrs. Lawrence told Ms. Bullock she saw her
husband, defendant, leaving S.H.'s room wearing only his underwear.
Ms. Bullock then questioned S.H. about the incident. Upon Ms.
Bullock's suggestion, Mrs. Lawrence had S.H. and her younger sister
move to Renna Little's residence. The next week, Ms. Bullock
visited the home to confirm that S.H. and her younger sister had
left the Lawrence home. On the following Monday, Ms. Bullock
separately interviewed S.H., Mrs. Lawrence, and S.H.'s younger
sister. Based on the allegations of abuse, Ms. Bullock made an
appointment for S.H. at the Tedi Bear Clinic in Greenville, North
Carolina. She accompanied S.H. at her appointment at the clinic.
In September 2001, S.H. went to live with her biological
father, Larry Battle. Mr. Battle testified that during the two
weeks S.H. lived with him in September 2001, she did not tell him
about the alleged abuse by defendant. While living with her father, S.H. was interviewed at her
father's home by Ms. Bonnie Whitehurst, a children's services
social worker with the Edgecombe County Department of Social
Services. S.H. told Ms. Whitehurst about various incidents of
sexual abuse by defendant.
When Mr. Battle learned about the alleged sexual abuse, he
took S.H. to the Tedi Bear Clinic in Greenville, North Carolina.
S.H. was examined by Dr. Elaine Cabinum-Foeller, an expert witness
in the examination of alleged sexually abused children. During her
physical examination of S.H., Dr. Cabinum-Foeller noticed a notch
on S.H.'s hymenal rim, which was consistent with “penetrating
trauma.” Dr. Cabinum-Foeller testified that S.H.'s condition could
have been caused by something other than sexual intercourse.
Mr. Battle placed S.H. in counseling at the Edgecombe-Nash
Mental Health Center. S.H. was still in therapy at the time of the
trial.
S.H. testified about previous incidents of sexual abuse by
defendant. Her first recollection of a similar encounter occurred
when she was living with her mother, defendant, and her sister in
Tarboro. S.H. testified that defendant entered her bedroom at
night, sat on the bed, removed her panties, and put his finger into
her vagina. S.H. said she was afraid to tell anyone about the
incident.
S.H.'s family moved to Martin County in September 1999 to stay
with defendant's sister, Renna Little. S.H. testified that “every
week” while they were living with Ms. Little, defendant would“touch my breasts and then he would touch my vagina.” S.H. also
testified that defendant would engage in intercourse with her. She
testified that she did not tell anyone about these alleged
incidents.
A few months later, the family moved to a home where S.H. and
her younger sister shared a bedroom. S.H. testified that during
this time, defendant would come into her room and touch her and
have sexual intercourse with her when everyone else was asleep.
S.H. testified she eventually told her mother about these incidents
when “she asked me what was going on and why was he coming out of
my room at night.”
The family subsequently moved to a two-story apartment in
Martin County, where the incident in May 2001 occurred. She said
that during the time they lived there, defendant would touch her
and engage in intercourse with her. S.H. said that when her
younger sister was sleeping in the same room, defendant would make
her sister leave the room before engaging in the alleged abuse.
Mrs. Lawrence testified that she asked defendant about the
alleged abuse, and he denied the incidents occurred. Mrs. Lawrence
also testified that S.H. resented defendant because he had
disciplined her, prior to any allegations of sexual abuse.
Defendant offered no evidence at trial. Defendant's motions
to dismiss at the close of the State's evidence and at the close of
all the evidence were denied.
The jury returned a verdict of guilty on the charges of
statutory rape, vaginal intercourse by a substitute parent, incestbetween near relatives, and indecent liberties with a child. The
trial court consolidated the charges of statutory rape, vaginal
intercourse by a substitute parent, and indecent liberties with a
child for sentencing, and sentenced defendant to an active term of
imprisonment of 288 to 355 months. On the charge of incest between
near relatives, the trial court sentenced defendant to a
consecutive active term of imprisonment of 15 to 18 months.
In his first assignment of error, defendant argues the trial
court erred in failing to dismiss the charge of incest between near
relatives because the indictment did not allege all of the elements
of that offense. We disagree.
An indictment must allege facts to support every element of
the offense charged “with sufficient precision clearly to apprise
the defendant or defendants of the conduct which is the subject of
the accusation.” N.C. Gen. Stat. § 15A-924(a)(5) (2003). The
indictment need not state every element of the offense charged, but
only facts supporting every element. State v. Jordan, 75 N.C. App.
637, 639, 331 S.E.2d 232, 233 (1985).
The crime of incest between near relatives has three elements:
(1) the defendant engaged in sexual intercourse; (2) with his or
her grandchild, child, stepchild, adopted child, or brother or
sister; and (3) the defendant knew of that relationship at the time
he or she engaged in sexual intercourse with that person. N.C.
Gen. Stat. § 14-178 (2001)
(See footnote 1)
; State v. Collins, 44 N.C. App. 27, 29,259 S.E.2d 802, 803 (1979). Defendant argues the trial court
lacked jurisdiction to try defendant on this charge because the
indictment failed to allege the third element.
The third count of the indictment charged that defendant
“unlawfully, willfully, and feloniously did have carnal intercourse
with S.H., who is the defendant's stepchild.” This is sufficient
to allege the requisite knowledge by defendant of the stepdaughter-
stepfather relationship between he and S.H.. This assignment of
error is without merit.
In his second assignment of error, defendant argues the trial
court erred in failing to dismiss the charge of statutory rape
because the indictment did not allege the time of the offense with
sufficient particularity. We disagree.
Section 15A-924 of the North Carolina General Statutes
requires that a criminal pleading contain a “statement or cross
reference in each count indicating that the offense charged was
committed on, or on or about, a designated date, or during a
designated period of time.” N.C. Gen. Stat. § 15A-924(a)(4)
(2003). However, “[e]rror as to a date or its omission is not
ground for dismissal of the charges or for reversal of a conviction
if time was not of the essence with respect to the charge and the
error or omission did not mislead the defendant to his prejudice.”
N.C. Gen. Stat. § 15A-924(a)(4); see State v. McKinney, 110 N.C.
App. 365, 370-71, 430 S.E.2d 300, 303 (1993). Moreover, in cases
of sexual assaults on children, temporal specificity requirements
are diminished. State v. Young, 103 N.C. App. 415, 420, 406 S.E.2d3, 6 (1991). “This policy of leniency as to the time of the
offenses stated in an indictment governs so long as the defendant
is not thereby deprived of his defense.” State v. Hicks, 319 N.C.
84, 91, 352 S.E.2d 424, 428 (1987).
Defendant was charged with four sex offenses against S.H. in
a single indictment, spanning a period from September 1997 to May
2001. Count one of the indictment specifically alleged that
defendant “unlawfully, willfully and feloniously did engage in
vaginal intercourse with S.H., a person of the age of 13 years.”
The offense actually occurred in May 2001, which was within the
time period alleged.
Defendant has not shown that the lack of specificity in the
indictment deprived him of his defense. Defendant argues that
prior to trial, he had no way of knowing on what date the alleged
crime occurred. However, if his defense had truly been hampered,
defendant could have requested specific dates through a bill of
particulars prior to the trial. See State v. Foster, 10 N.C. App.
141, 143, 177 S.E.2d 756, 757 (1970). This assignment of error is
without merit.
In his third assignment of error, defendant argues he is
entitled to a new trial as the result of erroneous evidentiary
rulings made by the trial court which unduly prejudiced defendant
and deprived him of a fair trial. We disagree.
Defendant first contends that the trial court committed plain
error in admitting improper evidence offered by the State regarding
defendant's character. Because defendant did not object to thechallenged evidentiary rulings at trial, this Court is limited to
plain error review of the trial court's rulings on this evidence.
Under the plain error rule, “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court.” State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983) (quoting Fed. R. Crim. P. 52(b)). The 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 . . . .'” Id. at 660, 300 S.E.2d at 378
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982)). To prevail on plain error review, defendant must show the
jury would have likely reached a different result absent the
alleged error. Id.
The State presented evidence that defendant was a strict
disciplinarian who did not permit S.H. or her sister to have
visitors or allow S.H.'s biological father to give her gifts.
Defendant did not object to this evidence at trial. On the
contrary, defendant relied upon this evidence to support his
contention that S.H.'s dislike of defendant was her motivation for
the allegations of sexual abuse. As defendant states in his brief,
“[o]ne of the chief defenses offered by defendant at trial was that
the alleged victim's family did not like him or his relationship
with Mrs. Lawrence, and that therefore they were assisting in false
allegations being made against defendant by [S.H.].” Having reliedupon the same evidence that defendant now challenges as the basis
for his defense, defendant cannot claim that admission of the
evidence amounted to a miscarriage of justice or that the jury
would have likely reached a different result if the evidence had
been excluded.
Defendant also contends that the trial court improperly
sustained the State's objection to a question asked of S.H. by
defense counsel during cross-examination. Defense counsel asked
S.H. whether her brother had brought charges against defendant
several years ago. The witness responded, “Yes, he did.” Counsel
then asked whether the charges had been dismissed. The State
objected and the trial court sustained the objection.
Defendant argues that this question was relevant to show bias
and was improperly excluded. However, it is unclear whether
defendant contends that it showed bias on the part of the
prosecuting witness or her brother. Defendant's brief states that
the “excluded evidence plainly showed bias of a person aligned with
the prosecuting witness.” However, the prosecuting witness's
brother, Larry Johnson, did not testify at trial; therefore, his
bias is irrelevant.
Even if this argument is based upon the possible bias of the
prosecuting witness, S.H., it still must fail. When the trial
court excludes evidence offered by the defendant and the
significance of the excluded testimony is not obvious from the
record, the defendant must make an offer of proof regarding the
proffered testimony. N.C. Gen. Stat. § 8C-1, Rule 103(a)(2)(2003); State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-11
(1994). If an offer of proof is not made, the issue is not
preserved for appeal. State v. Braxton, 352 N.C. 158, 184, 531
S.E.2d 428, 443 (2000). In this case, defendant made no offer of
proof when the trial judge sustained the State's objection to
defendant's questions to S.H. concerning her brother.
Defendant has not shown that he was unduly prejudiced or
deprived of a fair trial by the trial court's evidentiary rulings.
This assignment of error is without merit.
NO ERROR.
Judges MARTIN and GEER concur.
Report per Rule 30(e).
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