STATE OF NORTH CAROLINA
v
.
Randolph County
No. 02 CRS 55113
STEPHEN GUY MICHAELIS,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Wendy L. Greene, for the State.
James M. Bell, for defendant-appellant.
HUDSON, Judge.
At the 18 November 2003 Criminal Session of the Superior Court
in Randolph County, defendant Stephen Guy Michaelis appeared
pursuant to indictments for two counts of indecent liberties with
a child and one count of first degree rape. A jury found defendant
guilty of one count of indecent liberties with a child, and the
court sentenced him to 16-20 months in prison. Defendant appeals.
For the reasons discussed below, we find no error.
The evidence tended to show that, in 2000, when T.C. was nine
years old and defendant was sixteen, their families were close
friends, and defendant sometimes spent the night with T.C.'s
family. On 17 June 2000, T.C. awoke in the night to find
defendant, laying on top of her. T.C.'s shirt was off anddefendant was rubbing her chest and putting his hands between her
legs and his fingers into her vagina. The next morning, defendant
told T.C. not to tell anyone. Several weeks later, defendant was
again spending the night with T.C.'s family. After everyone went
to bed, defendant came into T.C.'s room, laid on top of her, rubbed
her chest and forced his penis inside her. Two days later, T.C.
told her brother, age eleven at the time, about the assaults, but
said nothing to anyone else until 11 March 2002, when she told her
school guidance counselor following a D.A.R.E program about
inappropriate touching. After the guidance counselor, Ms. Mary
Tinker, notified social services and police, Dr. Angela Stanley
examined T.C. and testified as an expert. Dr. Stanley testified
that the condition of T.C.'s hymen was consistent with the events
she had described.
Defendant denied the allegations and presented testimony that
he was not in North Carolina on the dates of the alleged sexual
assaults.
Defendant first argues that the court erred in denying his
motion to replace juror nine because that juror had been a close
friend of Ms. Tinker, a key witness. We disagree.
Ms. Tinker was the guidance counselor to whom T.C. first
disclosed the sexual assaults. After juror nine sent the court a
note indicating that she was acquainted with Ms. Tinker, the court
cleared the courtroom and examined the juror regarding her
relationship with Ms. Tinker. Juror nine stated that she had
worked with Ms. Tinker in 1991 and had been friendly with her,although she had not seen Ms. Tinker since then. The juror also
indicated that she was currently working in the same school as Ms.
Tinker's husband, and often spoke with him in passing. Defendant
then moved to replace juror nine, which motion the court denied.
The decision to replace a juror is within the sound discretion
of the trial court, and we review the denial of defendant's motion
for abuse of discretion. State v. Tirado, 358 N.C. 551, 586, 599
S.E.2d 515, 539 (2004). “An abuse of discretion occurs where the
trial judge's determination is manifestly unsupported by reason and
is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Reed, 355 N.C. 150, 155, 558 S.E.2d
167, 171 (2002) (internal quotation marks omitted). Here, the
court examined the juror's relationship with Ms. Tinker, and
determined that despite having some acquaintance with the witness,
juror nine did not need to be replaced. There is nothing in the
record to suggest the court's decision was “manifestly unsupported
by reason and is so arbitrary that it could not have been the
result of a reasoned decision,” and we overrule this assignment of
error.
Defendant next argues that the court erred in overruling
defendant's objection to allowing T.C.'s brother to speculate
regarding what T.C. might have told him about the assault. We
disagree.
J.C., T.C.'s brother, testified about what T.C. told him about
the sexual assaults. Defendant objected when J.C. speculated that
T.C. had not finished telling him what had happened, and the courtsustained that objection. J.C. then continued his testimony as
follows:
A: (continuing) I think I like cut her off in
the middle of her- in the middle of her
telling me this and she- because I was so
shocked and I don't think she ever finished.
Q: So she never got the chance to tell you?
A: I'm not sure. She might have finished, but
I think that night that I- I cut her off in
the middle of the story, in the middle of her
telling me this.
Defendant contends that this testimony was speculation which is
barred under Rule 602 of the North Carolina Rules of Evidence.
N.C. Gen. Stat. § 8C-1, Rule 602 (“A witness may not testify to a
matter unless evidence is introduced sufficient to support a
finding that he has personal knowledge of the matter.”) “This rule
is designed to prevent a witness from testifying to a fact about
which he has no direct, personal knowledge.” State v. Poag, 159
N.C. App. 312, 323, 583 S.E.2d 661, 669, disc. appeal dismissed,
357 N.C. 661, 590 S.E.2d 857 (2003). “[P]ersonal knowledge is not
an absolute but may consist of what the witness thinks he knows
from personal perception.” Id. (quoting N.C. Gen. Stat. § 8C-1,
Rule 602 (Commentary) (1999)). Further, in State v. Davis, this
Court considered the following witness testimony about whether
defendant entered a particular hotel room: “I presume because I
heard --” and “[s]aw him sh-- shut the door or whatever.” 77 N.C.
App. 68, 73, 334 S.E.2d 509, 512 (1985). We held that such
statements “while reflecting either poor memory or indistinct
perception, are nonetheless competent and admissible because theywere rationally based on the firsthand observation of the witness,
rather than mere speculation or conjecture.” Id. J.C.'s
statements here were similarly competent and admissible, reflecting
J.C.'s firsthand observations of his sister during their
conversation.
Defendant next argues that the court erred in allowing
publication of T.C.'s statement which had been admitted only as
corroborative evidence. We disagree.
A detective read into the record a statement made to him by
T.C. for the purpose of corroborating T.C.'s prior testimony. The
State then moved to publish the written statement to the jury,
which the court allowed over defendant's objection. “Because the
manner of the presentation of evidence is a matter resting
primarily within the discretion of the trial judge, his control of
the case will not be disturbed absent a manifest abuse of
discretion.” State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383,
387 (1986). In Harris, our Supreme Court held that a trial judge
did not err when he had copies of impeaching out-of-court
statements distributed to individual jurors instead of providing a
single copy for the jurors to share. Noting that Harris had not
established prejudice, the Court held that the judge acted “well
within his discretion.” Id. Likewise, here we do not see any
error which amounts to manifest abuse of discretion in the
publication of the corroborative statement. State v. Harrison,
cited by defendant is clearly distinguishable, as prejudice is
clear where the document published was a “copy of the arrestwarrant [which] carried the officer's handwritten notation that in
District Court the defendant had been found guilty of the same
offense for which he was being tried” de novo. State v. Harrison,
67 N.C. App. 560, 561, 313 S.E.2d 268, 269 (1984).
Defendant next argues that the court erred in denying his
motion to dismiss at the close of all evidence. He contends that,
because the indictment charged defendant with taking indecent
liberties with a minor on or about 17 June 2000, that date became
an essential element of the crime charged. “Generally, the time
listed in the indictment is not an essential element of the crime
charged.” State v. Custis, 162 N.C. App. 715, 717, 591 S.E.2d 895,
897 (2004)(internal citations and quotation marks omitted).
“Furthermore, in child sexual abuse cases our Courts have adopted
a policy of leniency with regard to differences in the dates
alleged in the indictment and those proven at trial.” Id. This
Court has set forth the proper analysis for determining when a time
variance is fatal in a child sexual abuse case:
Time variances do not always prejudice a
defendant so as to require dismissal, even
when an alibi is involved. Thus, a defendant
suffers no prejudice when the allegations and
proof substantially correspond; when [a]
defendant presents alibi evidence relating to
neither the date charged nor the date shown by
the State's evidence; or when a defendant
presents an alibi defense for both dates.
However, when the defendant relies on the date
set forth in the indictment and the evidence
set forth by the State substantially varies to
the prejudice of [the] defendant, the
interests of justice and fair play require
that [the] defendant's motion for dismissal be
granted.
State v. Booth, 92 N.C. App. 729, 731, 376 S.E.2d 242, 244 (1989)
(citations omitted).” In Booth, the State presented no evidence
that charged offense occurred during the dates specified in the
indictment. Id.
Here, in contrast, the State presented testimony from T.C.
that the incident occurred on 17 June 2000 and testimony from
T.C.'s mother that defendant spent that evening at T.C.'s home.
Defendant concedes in his brief that the State presented this
evidence, but argues that this evidence is insufficient when
considered with defendant's alibi evidence. This contention goes
to the weight of the evidence, which is not for us to review. “The
trial court need not concern itself with the weight of the
evidence.” State v. Murphy, 342 N.C. 813, 819, 467 S.E.2d 428, 432
(1996) (internal citations omitted). The trial court need only
determine “whether there is any evidence tending to prove guilt or
which reasonably leads to this conclusion as a fairly logical and
legitimate deduction. If so, it is for the jurors to decide
whether the facts satisfy them beyond a reasonable doubt that the
defendant is actually guilty.” Id. (internal citation and
quotation marks omitted) Here, the trial court concluded that
there was such evidence, and we agree.
Finally, defendant argues that the court erred in denying his
motion for a jury instruction regarding the date variances
previously discussed. “[W]hen [jury] instructions, viewed in their
entirety, present the law fairly and accurately to the jury, the
instructions will be upheld.” State v. Roache, 358 N.C. 243, 304,595 S.E.2d 381, 420 (2004). Defendant contends, based on the
assignment of error discussed supra, that the date of the offense
was an essential element of the crime charged, and that the court
failed to make clear to the jury the importance of the date. The
court gave an instruction on alibi testimony and then further
charged:
So if you find from the evidence beyond a
reasonable doubt that on or about 17 June 2000
the defendant willfully took an indecent
liberty with [T.C.] for the purpose of
arousing or gratifying sexual desire . . . it
would be your duty to return a verdict of
guilty to the charge of indecent liberties
with a minor on or about June 17th of 2000.
This instruction was sufficient to present the law fairly and
accurately. We overrule this assignment of error.
No error.
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).
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