STATE OF NORTH CAROLINA
v. Randolph County
Nos. 00 CRS 119-21
ANTJUAN ANTONIO WILLIAMS
Attorney General Roy Cooper, by Assistant Attorney General
Belinda A. Smith, for the State.
Antjuan Antonio Williams, pro se; Walter T. Johnson, Jr.,
filed brief for defendant appellant but has withdrawn as
defendant's counsel.
McCULLOUGH, Judge.
On 18 September 2000, defendant Antjuan Antonio Williams was
indicted on charges of first-degree statutory rape, first-degree
statutory sexual offense, and taking indecent liberties with a
child. The case was tried at the 6 May 2002 Criminal Session of
Randolph County Superior Court.
The evidence presented at trial tended to show the following:
In 1998, the victim (S), lived with defendant, her mother, and her
two brothers. S alleged that on several occasions, defendant raped
her vaginally and anally, and forced her to perform oral sex.
Specifically, S testified that he tried to enter her vaginally and
anally, and that it hurt. S also stated that defendant made her“suck his worm” and described defendant ejaculating.
Defendant was convicted of attempted first-degree rape, first-
degree sexual offense with a child, and taking indecent liberties
with a child. Defendant was sentenced to a term of 180 to 225
months' imprisonment for the attempted rape charge, a consecutive
term of 288 to 355 months' imprisonment for the first-degree sexual
offense conviction, and a concurrent term of fifteen to eighteen
months' imprisonment for the indecent liberties charge. Defendant
appeals.
We first consider whether the trial court erred by denying
defendant's motion to dismiss. Defendant contends that there was
a fatal variance in regard to the date of the offenses in the
indictments and the evidence adduced at trial. In the indictment
for first-degree sex offense with a child, the date of offense is
listed as 10 June 1998. In the indecent liberties indictment, the
date of offense is listed as 25 May 1998. Defendant raises as an
alibi that he was not living with the children on these dates.
After careful review of the records, briefs and contentions of
the parties, we find no error. We initially note, in regard to
defendant's contentions about an alibi defense, that defendant did
not raise any alibi defense with the trial court when making his
motion to dismiss, and cannot raise the argument for the first time
on appeal.
Moreover, our Supreme Court has stated that
a child's uncertainty as to the time or
particular day the offense charged was
committed goes to the weight of the testimonyrather than its admissibility, and nonsuit may
not be allowed on the ground that the State's
evidence fails to fix any definite time when
the offense was committed where there is
sufficient evidence that the defendant
committed each essential act of the offense.
State v. Effler, 309 N.C. 742, 749, 309 S.E.2d 203, 207 (1983).
Additionally, this Court has stated that:
"the date given in the bill of indictment is
not an essential element of the crime charged
and [that therefore] the fact that the crime
was committed on some other date is not
fatal." In that same vein, we have also
stated that a "variance between allegation and
proof as to time is not material where no
statute of limitations is involved."
State v. Blackmon, 130 N.C. App. 692, 696-97, 507 S.E.2d 42, 45
(1998)(citations omitted), cert. denied, 349 N.C. 531, 526 S.E.2d
470 (1998).
In this case there was sufficient evidence to sustain the
conviction. S testified that defendant forced her to perform oral
sex on him, and that he tried to rape her vaginally and anally.
S's story was corroborated by several witnesses. S told her
brother about the abuse, and he corroborated that on more than one
occasion defendant had called her into his bedroom. Her brother
testified that while she was in the bedroom, they could hear the
bed moving and she would come out of the room limping. S also
related the abuse to her foster mother, Golda Person, and described
the abuse to a child protective services social worker, Stacy
Cholula. S further demonstrated the abuse with anatomically
correct dolls for Kimberly Madden, a counselor with Moses Cone
Hospital Systems. Dr. Angela Stanley, a pediatrician with theChild Evaluation Clinic at Moses Cone Hospital testified that S
suffered a penetrating trauma to her hymen. Accordingly, in the
light most favorable to the State, a reasonable mind could conclude
from this evidence that defendant committed the offenses charged by
the indictments. State v. Cross, 345 N.C. 713, 717, 483 S.E.2d
432, 434 (1997).
We next consider whether the trial court erred by refusing to
admit evidence that S had knowledge of sexual activity from
watching sexually explicit videos. Defendant asserts that the
trial court further erred by refusing to allow into evidence
testimony that S had been sexually assaulted by a friend of her
brother. Defendant contends that the evidence falls within one of
the exceptions to Rule 412 because it was offered for the purpose
of showing that the acts charged were not committed by defendant.
We disagree.
Rule 412(b)(2) states:
Notwithstanding any other provision of law,
the sexual behavior of the complainant is
irrelevant to any issue in the prosecution
unless such behavior . . . [i]s evidence of
specific instances of sexual behavior offered
for the purpose of showing that the act or
acts charged were not committed by the
defendant[.]
N.C. Gen. Stat. § 8C-1, Rule 412(b)(2) (2003). Here, the alleged
sexual assault cited by defendant as being evidence that he was not
the perpetrator of the offense occurred before S's baby brother was
born, no later than March 1997. The alleged sexual abuse here
occurred in 1998. Thus, there is no “temporal connection betweenthe dates of the alleged offense and the evidence pointing to
another perpetrator.” State v. Holden, 106 N.C. App. 244, 247, 416
S.E.2d 415, 417, appeal dismissed, disc. review denied, 332 N.C.
669, 424 S.E.2d 413 (1992). Therefore, any evidence that someone
else may have abused S before March 1997 is not relevant to show
that defendant did not abuse her in 1998. See id; cf. State v.
Ollis, 318 N.C. 370, 348 S.E.2d 777 (1986)(evidence that another
man abused victim during same time period as alleged against
defendant held admissible to explain physical evidence).
Accordingly, the evidence was properly excluded as being irrelevant
and confusing to the jury.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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