STATE OF NORTH CAROLINA
v
.
Wake County
Nos. 02 CRS 47332
MARTIN JOHN CUNNINGHAM, JR., 02 CRS 47333
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Sandra Wallace-Smith, for the State.
Haral E. Carlin for defendant-appellant.
THORNBURG, Judge.
Defendant was indicted on one count of first degree sex
offense and one count of indecent liberties with a minor.
Defendant was found guilty on both counts and was sentenced to 240
to 297 months. Defendant appeals.
The indictment for first degree sexual offense alleged that
defendant “unlawfully, willfully and feloniously did engage in a
sex offense with S.W. . . ., by force and against [her] will” on or
between the “1st day of May, 2001 and the 31st day of May, 2001.”
The indictment for indecent liberties with a minor alleged the same
dates for the commitment of that offense. Before trial, the State
tried to amend the indictment to include a time period from 1August 2000 to 31 May 2001. After arguments from both sides, the
State withdrew the motion and proceeded to trial.
At the time of the trial in April 2003, S.W. was 10 years old.
In May of 2000, S.W.'s parents separated. S.W. and her two
siblings lived primarily with their mother. S.W.'s mother met and
began dating defendant in July of 2000.
S.W. testified that defendant often spent the night in their
home while he was dating her mother. S.W. testified that in
September of 2000, while she was alone in her mother's room
watching television, defendant entered the room, reached under
S.W.'s clothing and inserted his finger in her “private.” This
occurred early in the morning, after defendant had spent the night
and after S.W.'s mother had gone to work. S.W. testified to
several other instances of defendant inserting his finger into her
vagina. She also testified that defendant placed his penis on her
cheek and “something wet came out.” S.W. also described an
instance where defendant asked her to touch his penis and took her
hand and forced her to squeeze his penis. Also, on one occasion,
S.W. testified that defendant undressed her, kissed her from “on
[her] lips down to [her] privates” and that “when [defendant] was
kissing me down here he spread the, where my private is, where.”
During most of these incidents, S.W. testified that her mother was
at work. These incidents occurred starting in August or September
of 2000 through March of 2002, when S.W. was taken from her
mother's custody. S.W. testified that she told people about what defendant was
doing to her. S.W. first told her mother's cousin, Glenda, that
defendant had touched her. Glenda told S.W. that she should tell
her mother about what defendant was doing. S.W. testified that she
told her mother, but that her mother punished her for lying. S.W.
also told her friend, B.S., that defendant was touching her. Both
Glenda and B.S. testified that S.W. told them that defendant was
touching her.
Teresa, S.W.'s mother, testified that she began dating
defendant in July of 2000. However, she denied that defendant ever
spent the night at her home in September of 2000 while the children
were home, the time S.W. testified defendant first started touching
her. Teresa testified that defendant did not spend the night at
her home while the children were there until Christmas of 2000.
Further, she did not know anything about defendant touching S.W.
until S.W. was removed from her home in March of 2002.
Defendant denied S.W.'s allegations. He asserted that he
never spent the night at Teresa's home while the children were
there until Christmas of 2000. The jury found defendant guilty on
both charges. Defendant appeals.
Defendant argues on appeal: (1) that the trial court erred in
denying his motion to dismiss based on the variance between the
evidence presented and the dates listed in the indictment; (2) that
the trial court erred in instructing the jury that the State was
not required to prove a definite time of the offense; (3) that the
trial court erred in denying his motion to dismiss the charge offirst degree sexual offense based on a variance between the type of
offense the indictment charges and the evidence presented; and (4)
that the trial court committed plain error in instructing the jury
on the sex offense charge.
Defendant failed to set out several of his assignments of
error in his brief. Because he has neither cited any authority nor
stated any reason or argument in support of those assignments of
error, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
Defendant first argues that there was a fatal variance between
the dates alleged in the indictments and the evidence presented at
trial. The indictments alleged that defendant committed both
offenses between 1 May 2001 and 31 May 2001. However, S.W. was
allowed to testify broadly to events that spanned from September of
2000 until March of 2002. Defendant argues that while he was
prepared to answer the charges found in the indictments, the
dramatic difference between the dates in the indictments and the
evidence prejudiced him by depriving him of the opportunity to
adequately present his defense.
An indictment must include a designated date or period of time
within which the alleged offense occurred. N.C. Gen. Stat. §
15A-924(a)(4) (2003); State v. Stewart, 353 N.C. 516, 517, 546
S.E.2d 568, 569 (2001). However, a judgment should not be reversed
when the indictment lists an incorrect date or time “'if time was
not of the essence'” with respect to the offense, and “'the error
or omission did not mislead the defendant to his prejudice.'” State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991)
(quoting N.C. Gen. Stat. § 15A-924(a)(4)).
When the defendant relies on the date set forth in the
indictment to prepare his defense, and the evidence produced by the
State substantially varies to the prejudice of the defendant,
defendant's motion to dismiss must be granted. Stewart, 353 N.C.
at 518-19, 546 S.E.2d at 569-70 (where evidence covered a two and
half year period, defendant was prejudiced where defendant relied
on the one month period in the indictment to present his alibi
defense); State v. Booth, 92 N.C. App. 729, 731-32, 376 S.E.2d 242,
244 (1989) (approximate three-month variance prejudiced defendant
where defendant relied on date in the indictment to present his
alibi defense).
When the case involves allegations of child sex abuse,
temporal specificity requirements are further diminished. Everett,
328 N.C. at 75, 399 S.E.2d at 306. As children frequently cannot
recall exact dates and times, any uncertainty as to the time of the
offense goes only to the weight to be given that child's testimony.
Id. “Unless the defendant demonstrates that he was deprived of his
[alibi] defense because of lack of specificity, this policy of
leniency governs.” Id.
In the instant case, defendant has not specifically presented
an alibi defense. Rather, he relies on testimony that showed he
did not spend the night at Teresa's home while the children were
there until Christmas of 2000, and thus could not have committed
any offenses on any mornings before that time period. Defendantdid not present evidence that specifically attempted to account for
his whereabouts for every day in May of 2001, the period alleged in
the indictment during which defendant was supposed to have
committed these offenses. Accordingly, we conclude that the policy
of leniency controls and defendant has not shown any prejudice.
Defendant's assignment of error fails.
Defendant next argues that the trial court erred in
instructing the jury that the State did not have to prove a
definite time for when the offense was committed. Defendant argues
that this instruction makes it virtually impossible for him to
protect himself from subsequent prosecution for the same offense,
thus raising the possibility of double jeopardy. “The Double
Jeopardy Clause protects against (1) a second prosecution for the
same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same
offense.” State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707
(1986). We are not concerned with category (1) as there has been
no prior acquittal, nor with category (2) as there has only been
one prosecution. Further, defendant was charged with two distinct
offenses, first degree sexual offense and indecent liberties with
a minor. There was substantial evidence to support these
independent convictions and thus defendant was not subjected to
multiple punishments for the same offense. The concerns of double
jeopardy are not implicated in this instance. We will not
speculate on possible future indictments based on defendant's
conduct toward S.W. Defendant's assignment of error fails. Finally, defendant argues that the trial court erred in not
dismissing the count of first degree sexual offense and in its
instructions to the jury on that count. The indictment in the
instant case alleged that defendant “unlawfully, willfully and
feloniously did engage in a sex offense with S.W. . . ., by force
and against that victim's will.” Defendant argues that the State
presented no evidence that force as defined in the statute, N.C.
Gen. Stat. § 14-27.4(a)(2), was involved in any of the alleged
incidents and thus, that the State did not show substantial
evidence of each essential element of the offense charged in the
indictment. The State has conceded this error in its brief to this
Court and we agree. This issue was decided by the Supreme Court in
State v. Williams, 318 N.C. 624, 350 S.E.2d 353 (1986), which held
that a defendant must be convicted of the particular offense
charged in the indictment.
Because the jury in this case was instructed and reached its
verdict on the basis of the elements set out in N.C. Gen. Stat. §
14-27.4(a)(1), whereas defendant had been charged with sexual
offense on the basis of the elements set out in N.C. Gen. Stat. §
14-27.4(a)(2), the indictment under which defendant was brought to
trial cannot be considered to have been a valid basis on which to
rest the judgment. Therefore, we hold that the instructions given
to the jury pursuant to N.C. Gen. Stat. § 14-27.4(a)(1) were
fundamentally in error. See also State v. Bowen, 139 N.C. App. 18,
533 S.E.2d 248 (2000). As we are bound by the Supreme Court's holding in Williams, as
the State concedes, we conclude that the trial court erred in not
dismissing the charge of first degree sexual offense and that the
jury instructions on that charge were fatally flawed; thus,
defendant's conviction on that charge must be vacated.
No error in part; vacated in part.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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