Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. LARRY DONNELL JONES
Filed: 2 August 2005
1. Criminal Law--continuance denied--new evidence--not prejudicial
The denial of defendant's motion for a continuance was not an abuse of discretion where
his counsel first saw incriminating letters from defendant at the beginning of the trial for statutory
rape and indecent liberties, but there was overwhelming evidence that defendant fathered the
victim's child and defendant did not explain why he needed a continuance.
A statutory rape and indecent liberties defendant failed to lay a proper foundation for
admission of a videotape in which the victim denied having sex with defendant, and the trial court
did not err by excluding it.
3. Indecent Liberties--two charges--same act
Defendant was erroneously convicted of two charges of indecent liberties, one
characterized as indecent liberties and the other as lewd and lascivious act, based on the same
act. Although N.C.G.S. § 14-202.1(a) sets out alternative acts (indecent liberties and lewd and
lascivious acts), a single act can support only one conviction.
4. Sentencing--aggravating factors_Blakely error--jury finding required
Defendant's sentence was remanded because it was aggravated based on a factor not
found by a jury and not admitted by defendant.
5. Constitutional Law--rape and indecent liberties--not double jeopardy
Defendant was not subjected to double jeopardy by sentences for first-degree rape and
Appeal by defendant from judgment entered 20 November 2003 by
Judge W. Russell Duke, Jr., in Wayne County Superior Court. Heard
in the Court of Appeals 17 November 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Lauren M. Clemmons, for the State.
Parish & Cooke, by James R. Parish for defendant.
Defendant (Larry Jones) appeals from judgments entered upon
his convictions of one count of first degree statutory rape and two
counts of indecent liberties. We find no error in part, vacate in
part, and remand.
The State's evidence at trial tended to show, in pertinent
part, the following: Bonnie
(See footnote 1)
testified that she was born on 25
January 1989, and was in the ninth grade. She met the defendant
when she was a young child and he was dating her mother. The
defendant first touched her private parts when she was six or seven
years old. After Bonnie turned eleven, she and the defendant
started having sexual intercourse on a regular basis so many times
that Bonnie could not estimate the total number of incidents. They
engaged in sexual relations in a variety of locations, including
their respective homes, several different motels, and at an
abandoned dwelling in the country. On occasion, defendant would
sign her out of middle school so they could have intercourse at
a motel. Bonnie also identified approximately fifteen letters from
the defendant, in which he generally professed his love for her and
his desire to see her and be with her.
When she was twelve years old, Bonnie became pregnant. The
defendant continued to engage her in sexual intercourse, and he
accompanied her to prenatal medical appointments. On 3 April 2002
Bonnie gave birth to a son, Zeke
(See footnote 2)
who was later adopted. Aftershe got pregnant, Bonnie was interviewed by local law enforcement
authorities and caseworkers with the Wayne County Department of
Social Services (DSS). Bonnie testified that defendant instructed
her to lie about their relationship, so she initially told her
mother, Goldsboro Police Investigator Page Learnard, and a DSS
social worker that she never had a sexual relationship with
defendant. Defendant also directed her to make a videotape
recording: he set up the recording equipment, and her mother wrote
down what she should say. Bonnie testified that on the tape she
had denied having sex with defendant, but that she had lied on the
videotape and in her initial statements to law enforcement
officers, her mother, and DSS workers.
Bonnie's father testified to the contents of a letter from the
defendant, in which he admitted he was Zeke's father, and expressed
a wish that the child not be given up for adoption. Bonnie had
confided to her father that she had a sexual relationship with the
Terry Harne, DSS case worker for Bonnie's son Zeke, testified
to the contents of several letters the defendant had sent her. In
his letters, defendant professed his love and concern for the baby,
his hope that the child would not be adopted, and his wish to fight
the pending termination of parental rights proceeding. The
defendant did not deny paternity in any of these letters, and in
one he suggested that Zeke be placed with defendant's other
children, his brothers. Goldsboro Police Officer Page Learnard testified that when she
first talked with Bonnie in 2001, Bonnie denied any improper
physical contact with defendant. However, when Bonnie became
pregnant the case was reopened, at which time Bonnie disclosed her
relationship with defendant. Bonnie's statements to Learnard
corroborated Bonnie's trial testimony that defendant started having
sex with her when she was eleven years old, and that he had told
her to lie to various adults and to lie on the videotape. Learnard
also corroborated earlier testimony on the locations where the two
had met to have sex.
Other evidence provided further proof that defendant was the
father of Bonnie's child. The State offered evidence that Bonnie,
Zeke, and the defendant had submitted samples for DNA testing. The
results of this testing indicated to a 99.99% certainty that
defendant was Zeke's father, and that the chances that someone
else had fathered the child were ten million to one.
Additionally, attorney Gordon Parker testified that he represented
Wayne County DSS in a child support action brought against
defendant to obtain child support for Zeke. After defendant was
shown the results of DNA testing, he signed an acknowledgment of
paternity in the case. Finally, two DSS social workers testified
that defendant had called their office asking why he had to take a
DNA test, inasmuch as he admitted paternity.
Defendant's evidence may be summarized, in pertinent part, as
follows: Defendant recalled DSS worker Terry Harne and elicited
testimony from her that defendant had denied fathering Bonnie'schild on at least one occasion. Defendant's mother, Mary Elliott,
testified that Bonnie's mother had brought her a videotape on 5
June 2001. The defendant testified that he knew Bonnie because he
had once been engaged to her mother. He denied ever having sex
with Bonnie. Other evidence will be discussed as it becomes
relevant to the issues raised on appeal.
 Defendant argues first that the trial court erred by
denying his motion to continue. Defense counsel moved for a
continuance at the beginning of trial, on the grounds that he had
just been provided with two new letters written by defendant which
the State intended to introduce at trial. Counsel claimed that he
needed a continuance in order to study these letters and discuss
them with the defendant. The trial court denied his motion, and at
trial the letters were introduced without objection. On appeal,
defendant argues that the court's denial of his continuance motion
was an abuse of discretion and denied the defendant his due
process rights and rights to effective assistance of counsel. We
The standard of review of a trial court's ruling on a motion
for continuance is well-established:
Ordinarily, a motion to continue is addressed
to the discretion of the trial court, and
absent a gross abuse of that discretion, the
trial court's ruling is not subject to review.
When a motion to continue raises a
constitutional issue, the trial court's ruling
is fully reviewable upon appeal. Even if the
motion raises a constitutional issue, a denial
of a motion to continue is grounds for a new
trial only when defendant shows both that thedenial was erroneous and that he suffered
prejudice as a result of the error.
State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)
(citing State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433
(1981), and State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656
(1982)). Further, to establish that the denial of a continuance
motion was prejudicial,
a defendant must show that he did not have
ample time to confer with counsel and to
investigate, prepare and present his defense.
To demonstrate that the time allowed was
inadequate, the defendant must show how his
case would have been better prepared had the
continuance been granted or that he was
materially prejudiced by the denial of his
State v. Williams, 355 N.C. 501, 540-41, 565 S.E.2d 609, 632
(2002)(quoting State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d
331, 337 (1993)).
In the instant case, we find dispositive the question of
whether the defendant has shown that the court's denial of his
continuance motion, even if error, in any way prejudiced the
defendant. The two letters at issue were written by the defendant
and addressed to Terry Harne, the DSS caseworker for Bonnie's son
Zeke. The letters generally contain declarations of defendant's
love and concern for the baby. In addition, each includes certain
statements that might be interpreted as oblique acknowledgments of
paternity. For example, one letter proposes that Zeke be placed
with defendant's other sons, whom he refers to as his brothers;
the other letter argues against termination of his parental rights,in part so that Zeke might receive the love and respect . . . that
only a mother and father can give[.]
The defendant failed to articulate, either at trial or on
appeal, how a continuance would have helped him. The letters'
legal relevance was primarily in relation to the issue of
paternity, and to the extent that the letters admit paternity, they
support the State's case. However, the State also offered
overwhelming additional evidence that defendant was Zeke's father,
including: (1) Bonnie's testimony that defendant fathered her
child; (2) Bonnie's statements to Learnard; (3) defendant's
numerous other letters, including a letter to Bonnie's father
admitting paternity; (4) defendant's acknowledgment of paternity in
the child support action; and (5) the results of DNA testing
showing a 99.99% probability that defendant was the baby's father.
This evidence was largely available to defendant before trial;
therefore, the discovery of these two additional letters should not
have changed defendant's trial strategy. Moreover, defendant does
not explain why he needed a continuance, other than to discuss
this damaging new evidence. We conclude that [d]efendant has
been unable to show that he was materially prejudiced or that he
would have been better prepared had the continuance been granted.
Therefore, we conclude that the trial court did not abuse its
discretion, and we thus overrule this assignment of error.
Williams, 355 N.C. at 541, 565 S.E.2d at 632-33.
 Defendant argues next that the trial court committed
reversible error by excluding a videotape in which Bonnie denied
having sex with the defendant. The court ruled that the defendant
had failed to lay a proper foundation for admission of the tape.
We agree with the trial court.
The standard for admission of a videotape is stated in State
v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09
(1988)(citations and internal quotation marks omitted), rev'd on
other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990):
The prerequisite that the offeror lay a proper
foundation for the videotape can be met by:
(1) testimony that the motion picture or
videotape fairly and accurately illustrates
the events filmed, (illustrative purposes);
(2) proper testimony concerning the checking
and operation of the video camera and the
chain of evidence concerning the videotape . .
.; (3) testimony that the photographs
introduced at trial were the same as those
[the witness] had inspected immediately after
processing (substantive purposes); or (4)
testimony that the videotape had not been
edited, and that the picture fairly and
accurately recorded the actual appearance of
the area photographed.
In the instant case, the evidence failed to meet any of the
Cannon criteria. None of the witnesses offered testimony about the
operation or testing of the recording equipment. Bonnie testified
that defendant and her mother set up videotaping equipment before
leaving her alone to make a recording. She did not know if the
tape offered in court was the original or one of some six copies
that were made. She did not testify that she viewed the tape right
after it was made, and did not testify that the tape proffered bydefendant accurately depicted what she had filmed. Defendant's
mother testified only that Bonnie's mother gave her a videotape,
but she had no first-hand knowledge pertaining to the contents of
the tape or to the chain of custody. The defendant was absent
during most of the filming, and did not watch the tape after it was
made. We conclude that the trial court did not err by ruling that
defendant failed to lay a proper foundation for admission of the
videotape. This assignment of error is overruled.
 Defendant next argues that the trial court erred by
submitting to the jury two separate charges of indecent liberties
based on the same act. We agree.
Bonnie testified at trial that she had sexual intercourse with
the defendant on many occasions, but did not identify any specific
dates. The indictment alleged that the offenses occurred on 1 June
2001, which was nine months before Zeke's birth and thus represents
an approximate date of his conception. There was no evidence of
multiple sexual acts on that or any other date. However, defendant
was charged in a single indictment with first degree statutory rape
in violation of N.C.G.S. § 14-27.7A (2003), and with two violations
of N.C.G.S. § 14-202.1 (2003), one characterized as indecent
liberties and the other as lewd and lascivious act. We
conclude this was error.
G.S. § 14-202.1 provides in relevant part that:
(a) A person is guilty of taking indecent
liberties with children if . . . he either:
(1) Willfully takes or attempts to take
any immoral, improper, or indecent
liberties with any child of either sex
under the age of 16 years for the purpose
of arousing or gratifying sexual desire;
(2) Willfully commits or attempts to
commit any lewd or lascivious act upon or
with the body or any part or member of
the body of any child of either sex under
the age of 16 years.
The State argues that Subsections (a)(1) and (a)(2) are
separate criminal offenses with different elements because one's
commission of a lewd and lascivious act does not require proof of
an immoral purpose. The State cites no cases in support of this
position, and we find none. To obtain a conviction for a violation
of G.S. § 14-202.1(a)(1):
[T]he State must present substantial evidence
of each of the following elements: (1) the
defendant was at least 16 years of age, (2) he
was five years older than his victim, (3) he
willfully took or attempted to take an
indecent liberty with the victim, (4) the
victim was under 16 years of age at the time
the alleged act or attempted act occurred, and
(5) the action by the defendant was for the
purpose of arousing or gratifying sexual
State v. Every, 157 N.C. App. 200, 205, 578 S.E.2d 642, 647 (2003)
(quoting State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580
(1987)). The first four elements may be proved by direct
evidence[.] State v. Roberts, 166 N.C. App. 649, 653, 603 S.E.2d
373, 376 (2004), disc. review denied, 359 N.C. 325, 611 S.E.2d 843
(2005). The fifth element, that the action was for the purpose of
arousing or gratifying sexual desire, may be inferred from theevidence of the defendant's actions. Rhodes, 321 N.C. at 105, 361
S.E.2d at 580. Indeed:
our Supreme Court has stated that the evil
the legislature sought to prevent in this
context was the defendant's performance of any
immoral, improper, or indecent act in the
presence of a child 'for the purpose of
arousing or gratifying sexual desire.'
Defendant's purpose for committing such act is
the gravamen of this offense; the particular
act performed is immaterial.
State v. Shue, 163 N.C. App. 58, 61, 592 S.E.2d 233, 235 (quoting
State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990)),
disc. review denied, 358 N.C. 380, 597 S.E.2d 773 (2004).
In Hartness, the Court held that G.S. § 14-202.1 states
disjunctively two alternative means of proving one element of the
offense of indecent liberties:
[In t]he case sub judice . . . a single wrong
[may be] established by a finding of various
alternative elements. . . . [T]he crime of
indecent liberties is a single offense which
may be proved by evidence of the commission of
any one of a number of acts. . . .
Hartness, 326 N.C. at 566-67, 391 S.E.2d at 180. Accordingly,
although the statute sets out alternative acts that might establish
an element of the offense, a single act can support only one
In the instant case, the defendant was convicted of two
separate violations of G.S. § 14-202.1 arising out of a single act
on 1 June 2001. We conclude that this was error, and that judgment
may be properly entered on Count II of the indictment in 02 CRS
57952, but that no such conviction may be entered as to Count III
of the same.
 Defendant argues next that the trial court erred by
sentencing him in excess of the statutory maximum based on an
aggravating factor not submitted to the jury and not admitted by
defendant. Defendant argues he is entitled to a new sentencing
hearing pursuant to Blakely v. Washington
, 542 U.S. 296, 159 L. Ed.
2d 403, reh'g denied
, __ U.S. __, 159 L. Ed. 2d 851 (2004)
In the instant case, defendant's sentence was aggravated based
on a finding that [t]he defendant took advantage of a position of
trust or confidence to commit the offense. The trial court
sentenced defendant at the top of the aggravated range to a term of
480 to 585 months. The aggravating factor was not found beyond a
reasonable doubt by the jury and was not admitted by defendant.
Therefore, we must remand for resentencing in conformity with the
rulings in Blakely
and State v. Allen
, 359 N.C. 425, ___ S.E.2d ___
(No. 485PA04) (filed 1 July 2005).
 Defendant next contends that his sentences on the first
degree rape and indecent liberties offenses violate his right to be
free from double jeopardy. Defendant argues that, because the
conduct tending to prove these two offenses was identical, and
because the date of offense alleged in the indictment for these
offenses was the same, judgment may not be entered on the indecent
liberties offense. We disagree.
Our appellate courts have uniformly rejected defendant's
contention. See, e.g., State v. Etheridge
, 319 N.C. 34, 352 S.E.2d 673 (1987); State v. Fletcher
, 322 N.C. 415, 368 S.E.2d 633 (1988);
, 321 N.C. 102, 361 S.E.2d 578
. This assignment of error is
No error in part, vacated in part, and remanded.
Judges HUNTER and CALABRIA concur.
To preserve the victim's privacy, we will refer to her by
the pseudonym Bonnie.
We refer to Bonnie's son by the pseudonym Zeke to protect
*** Converted from WordPerfect ***