1. Constitutional Law--right to speedy trial--pre-indictment delay
The trial court did not err in a second-degree sexual offense, second-degree rape, and
taking indecent liberties with a minor case by denying defendant's motion to dismiss the charges
based on the fifteen-year delay that the victim took in reporting the incidents prior to the
indictment being issued, because: (1) defendant's Sixth Amendment right to a speedy trial is not
implicated until he becomes accused of a crime, which in this case came on the day he was
indicted; (2) the State cannot delay indictment of an offense it knew nothing about; and (3) the
State has no statute of limitations on the crimes of rape, sex offense, or indecent liberties.
2. Indecent Liberties--motion to dismiss--sufficiency of evidence
The trial court erred by denying defendant's motion to dismiss the charge of indecent
liberties, because: (1) there was no substantial evidence during the pertinent time period that
defendant brushed against the breast of his niece for the purpose of arousing sexual desire, and
the evidence suggested nothing more than an accidental encounter; and (2) the State's evidence
supporting the other sexual offense charges occurred months after this incident, and there was no
evidence suggesting that the later incidents were even similar to the first to allow a reasonable
inference that defendant had the same purpose.
Attorney General Roy Cooper, by Assistant Attorney General
Sonya M. Calloway, for the State.
Paul F. Herzog for Defendant-Appellant.
ELMORE, Judge.
Jerry Stanford (defendant) appeals his convictions for sexual
offense in the second degree, rape in the second degree, and taking
indecent liberties with a minor on the basis that 1) the delay
prior to indictment violated his due process rights and 2) there
was insufficient evidence to support the charge of indecentliberties. We affirm the trial court's denial of defendant's
motion to dismiss for pre-indictment delay, but reverse the denial
of defendant's motion to dismiss the indecent liberties charge.
[1] The offenses defendant was convicted for occurred in the
months of March, May, July, and September of 1987. The victim of
defendant's abuse is his niece, who at the time of trial was
thirty-two years old; at the time of the incidents she was thirteen
and fourteen years old. Despite her telling a few family members
and close friends about defendant's interactions with her
previously, she did not file a report against defendant until
approximately 5 September 2002, some 15 years after the incidents
took place. On 14 October 2002, within just over one month of
receiving the complaint from the victim, defendant was indicted for
the alleged sex crimes against his niece. Defendant contends that
the extensive delay between the incidents of the sex crimes and his
indictment for those offenses violated his due process rights. We
disagree.
It is well settled that defendant's Sixth Amendment right to
a speedy trial is not implicated until he becomes accused of a
crime, which in this case came on the day he was indicted. See
State v. Gallagher, 313 N.C. 132, 136, 326 S.E.2d 873, 877 (1985)
(citing United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468
(1971)). But defendant is entitled to a limited measure of due
process in the time prior to his indictment. Id. (citing United
States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, reh'g. denied,
434 U.S. 881, 54 L. Ed. 2d 164 (1977)). In order to obtain aruling that pre-indictment delay violated his due process rights,
defendant must show “actual prejudice in the conduct of his defense
and that the delay was unreasonable, unjustified, and engaged in
for the impermissible purpose of gaining a tactical advantage over
the defendant.” State v. Jones, 98 N.C. App. 342, 344, 391 S.E.2d
52, 54 (1990).
Yet, we need not reach the issue of whether defendant has
adequately shown prejudice since it was not the State that delayed
its indictment of him; defendant argues the fifteen year delay that
the victim took in reporting the incidents violates his due process
rights. But he cites no case that would allow the period of time
between a violation of law the State knew nothing about and its
subsequent report to the police to be a delay on behalf of the
State. It is inconceivable that the State could delay indictment
of an offense it knew nothing about. See, e.g., Gallagher, 313
N.C. at 136, 326 S.E.2d at 877 (complaining witness's five year
delay in coming forward was not prejudicial).
The gravamen of defendant's argument is that this case is too
stale to prosecute. He argues that the limited pre-indictment due
process protection is similar in application to a statute of
limitations. To the extent that this argument has any merit, it is
undercut by the fact that this State has no statute of limitations
on the crimes of rape, sex offense, or indecent liberties. See
State v. McKinney, 110 N.C. App. 365, 371-72, 430 S.E.2d 300, 304
(1993); State v. Swann, 322 N.C. 666, 672, 370 S.E.2d 533, 536
(1988). Whether we should have one is a question for our GeneralAssembly, not for this Court. And, to judicially carve out a time
period in which a felony becomes too stale to prosecute, under the
guise of due process, is an act of construction we choose not to
engage in.
[2] Defendant also argues that the evidence supporting his
indecent liberty charge was insufficient as a matter of law. We
agree.
Where a defendant moves to dismiss charges
brought under N.C. Gen. Stat. §
14-202.1(a)(1), the State must present
substantial evidence 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 desire.
State v. Brown, 162 N.C. App. 333, 336, 590 S.E.2d 433, 436 (2004)
(quoting State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580
(1987)).
According to the indictment, defendant was charged with taking
an indecent liberty with his niece during the month of March 1987.
At trial, the evidence pertaining to this time period, and reviewed
in the light most favorable to the State, consisted of defendant's
hand “brush[ing] against” the victim's breast. This incident
occurred when no one else was in the home and while the two were
smoking marijuana that defendant had provided. Defendant had come
over to his niece's house to babysit her and tutor her in math. By
the victim's testimony, she asked defendant what he was doing inbrushing against her, and he apologized for the contact. She
stated that defendant's hand was in contact with her breasts very
briefly, only a couple of seconds.
Similar to our decision in Brown, we cannot find substantial
evidence that defendant brushed against his niece for the purpose
of arousing sexual desire. Id. at 337-38, 590 S.E.2d at 436-37;
State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990)
(“Defendant's purpose for committing such act is the gravamen of
this offense . . . .”). To the contrary, the evidence suggests
nothing more than an accidental encounter.
The State relies on our decision in State v. Bruce, 90 N.C.
App. 547, 551, 369 S.E.2d 95, 98 (1988), to support its argument
that sufficient evidence of purpose was presented. However, in
Bruce, defendant reached under the victim's blouse while they were
playing around and “rubbed” her breast. Further, he locked the
door to the house before proceeding to the bedroom with the child,
and stopped what he was doing when someone came to the door. That
level of evidence is not present in this case. Here, defendant was
in the house babysitting, and his hand very briefly brushed his
niece's breast, over her clothing. The added fact that the two
were smoking marijuana does nothing but foster mere speculation
that would otherwise seem an accident might be for some purpose of
arousal; no evidence was presented that defendant gave his niece
drugs for a sexually deviant purpose. Brown, 162 N.C. App. at 338,
590 S.E.2d at 436-37 (if evidence is sufficient only to raise
suspicion, speculation, or conjecture that defendant committed anact of indecent liberties, then a dismissal is proper) (citing
State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983)).
The State further argues that the jury should be allowed to
infer defendant's arousal because he was also tried and convicted
for counts of sexual offense and rape. Indeed, defendant was
charged, convicted, and does not appeal from five counts of second-
degree sexual offense and two counts of second-degree rape that
were consolidated and tried with his charge for indecent liberties.
Defendant had intercourse with his niece on two distinct occasions
and also engaged in fellatio and cunnilingus on other occasions.
But the State's evidence supporting these charges occurred at times
other than when defendant brushed against the breast of his niece.
In fact, the other incidents occurred months after this incident.
Thus, the State's reliance on cases such as State v. Hewett, 93
N.C. App. 1, 376 S.E.2d 467 (1989), is misplaced, since those cases
hold that a single specific incident of sexual offense or rape may
also be sufficient for an indecent liberties charge. The
cumulative evidence presented at trial did sufficiently show
defendant acted with a purpose of arousing sexual desire while
committing the other incidents of sexual offense and rape. But
without any evidence suggesting that the later incidents were even
similar to the first, to infer that because defendant acted with a
certain purpose a month or so later then he must have had the same
purpose when he brushed against the victim still remains
speculation; it is not a reasonable inference borne out of the
evidence. As such we reverse the trial court's denial of defendant's
motion to dismiss the indecent liberty charge and vacate the
judgment entered upon the charge.
(See footnote 1)
However, there was no pre-
indictment delay affecting any of the remaining convictions against
defendant.
No error in part; reversed in part.
Judges McCULLOUGH and LEVINSON concur.
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