An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-386


Filed: 02 March 2004


v .                         Martin County
                            No. 01 CRS 50707

    Appeal by defendant from judgment entered 25 September 2002 by Judge William C. Griffin, Jr., in Martin County Superior Court. Heard in the Court of Appeals 28 January 2004.

    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.
    Judges MARTIN and GEER concur.
    Report per Rule 30(e).

Footnote: 1
     This statute has been modified, effective 1 December 2002. However the offense charged in this case falls under the old statute.

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