STATE OF NORTH CAROLINA
v
.
Robeson County
Nos. 02 CRS 11158-59
DEWEY GRACEAON SPRINKLE 02 CRS 11161
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
Mercedes O. Chut for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from his convictions of three counts of
taking indecent liberties with a child. We find no error in
defendant's convictions, but we remand for a new sentencing
hearing.
The State presented evidence at trial tending to show the
prosecuting witness (“the witness”) was the fourteen-year-old
granddaughter of defendant. The witness testified that, when she
was five years old, defendant began playing a game called “horsey”
with her whenever she spent the night at her grandparents' home.
The game usually took place in the morning after breakfast, while
the witness still wore her nightgown, and after her grandmother had
left for work. During the “horsey” game, defendant would take thewitness either to a reclining chair or “back to his back bedroom
and he would lay down and put [her] on his penis. His pants were
unzipped, but his underwear was still on.” Defendant would then
“move” the witness and “sing the song that goes with the ride a
horsey.” The witness testified her “lower area” would touch
defendant during the game and that it “didn't feel right.” Once,
when the witness asked defendant to stop, “he just laughed and kept
going.” The witness testified these incidents occurred
approximately twice a month for at least five or six years, until
she was ten or eleven years old. The witness also recalled an
occasion when defendant removed her shirt and licked her chest.
When the witness was ten or eleven years old, defendant
grabbed her breasts while hugging her. He explained to the witness
that “if you rub your breasts, then they will get bigger.” The
witness then decided to tell her best friend of defendant's actions
because she “had had enough of it.” The witness subsequently
reported defendant's actions to her best friend and her family.
Dr. Laura Thurston Gutman, an expert in pediatric maltreatment
and child sexual abuse, testified she examined the witness on the
18th and 25th of November 2002. During her physical examination of
the child, Dr. Gutman discovered that her “hymen had been eroded so
that there was no hymen - less than one millimeter of hymen in the
posterior part.” Dr. Gutman stated this was “an abnormal finding”
and “significant because it is so extremely supportive of [the
witness's] history of repetitive injury to that area.”
In addition to the physical examination, the witnessdemonstrated defendant's actions to Dr. Gutman using “anatomically
correct dolls” whereby the “male doll would lie back down on the
bed and with his hands he would then position the female doll
straddling her in the pelvic area.” The witness informed Dr.
Gutman that, during the “horsey game,” which typically lasted ten
to fifteen minutes, defendant panted and his penis was “sticking up
and very hard.” Defendant told the witness she “shouldn't tell
anybody because he would get in trouble.”
Paula Browder, a licensed clinical social worker, testified as
an expert in counseling and child sexual abuse. Ms. Browder stated
that, during therapy, the witness informed her of the “horsey game”
and her grandfather's actions in touching her breasts. According
to Ms. Browder, the witness's behavior and symptoms, including
depression, anger, anxiety, frustration, sleep disturbance, and
difficulty in maintaining focus and concentration at school, were
consistent with those of a sexually abused child. Defendant did
not object to the testimony by Ms. Browder.
Defendant presented no evidence. The jury found defendant
guilty of three counts of indecent liberties with a child, for
which the trial court sentenced defendant to three consecutive
aggravated sentences of twenty-six to thirty-two months'
imprisonment. The trial court also designated defendant as a
sexually violent predator. Defendant appeals.
______________________________________________________
Defendant argues the trial court erred by (1) failing to
dismiss the charges on the ground that the indictments against himwere fatally defective; (2) admitting evidence from the witness's
therapist; (3) denying his motion to dismiss; and (4) sentencing
him in the aggravated range. We agree that the trial court erred
in sentencing defendant in the aggravated range and remand this
case for a new sentencing hearing. We otherwise find no error by
the trial court.
By his first assignment of error, defendant contends the
indictments against him were fatally defective in that they only
specified a year in which the offenses occurred, one for 1999 and
two for 2001. Defendant contends the indictments thus failed to
meet the requirements of section 15A-924(a) of our General Statutes
and gave him no practical notice of the charges against him. We do
not agree.
Under section 15A-924(a), a criminal pleading must contain “a
statement or cross reference in each count indicating that the
offense charged was committed on, or on or about, a designated
date, or during a designated period of time.” N.C. Gen. Stat. §
15A-924(a)(4) (2003). “Error as to a date or its omission is not
ground for dismissal of the charges or for reversal of a conviction
if time was not of the essence with respect to the charge and the
error or omission did not mislead the defendant to his prejudice.”
Id.
“'[W]here time is not of the essence of the offense charged
and the statute of limitations is not involved, a discrepancy
between the date alleged in the indictment and the date shown by
the State's evidence is ordinarily not fatal.'” State v. Poston,162 N.C. App. 642, 647, 591 S.E.2d 898, 903 (2004) (quoting State
v. Locklear, 33 N.C. App. 647, 653-54, 236 S.E.2d 376, 380, disc.
review denied, 293 N.C. 363, 237 S.E.2d 851 (1977)). In cases
involving the testimony of children, “[o]ur courts have also
adopted a principle of leniency regarding dates.” Id. Thus, “in
the interests of justice and recognizing that young children cannot
be expected to be exact regarding times and dates, a child's
uncertainty as to time or date upon which the offense charged was
committed goes to the weight rather than the admissibility of the
evidence.” State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249
(1984). Leniency has been allowed in cases involving older
children as well. See State v. Hardy, 104 N.C. App. 226, 409
S.E.2d 96 (1991) (allowing leniency in case where the victim was
fifteen years old). “Unless the defendant demonstrates that he was
deprived of his defense because of lack of specificity, this policy
of leniency governs. 'It is sufficient for conviction that the
jury is satisfied upon the whole evidence that each element of the
crime has been proved beyond a reasonable doubt.'” State v.
Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991) (quoting State
v. May, 292 N.C. 644, 655, 235 S.E.2d 178, 185, cert. denied, 434
U.S. 928, 54 L. Ed. 2d 288 (1977)).
In the instant case, the State presented testimony by
defendant's granddaughter from which the jury could find that
defendant repeatedly molested the child on a regular basis over a
period of five to six years, beginning when she was five years old
and continuing on a regular basis until she was at least ten oreleven years old. The State also presented expert testimony by Dr.
Gutman, who confirmed that the witness displayed physical symptoms
of long-term, repetitive sexual abuse. Defendant did not assert an
alibi defense; indeed, defendant presented no evidence at all. See
State v. McGriff, 151 N.C. App. 631, 635-36, 566 S.E.2d 776 (2002)
(holding that, where the defendant presented no evidence, he was
not deprived of an alibi defense and thus the variances between the
indictments and the evidence at trial were not fatal); State v.
Blackmon, 130 N.C. App. 692, 697, 507 S.E.2d 42, 46 (holding that,
where the date of the offense was not material, testimony by the
minor child that sexual acts “occurred when she was seven years old
and that some of those acts happened when it was cold outside and
some when it was warm outside” was sufficient for an indictment
specifying the time frame of 1 January 1994 through 12 September
1994), cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998). We
overrule this assignment of error.
By his second assignment of error, defendant argues the trial
court committed plain error in allowing testimony by the witness's
therapist, Paula Browder, regarding statements by the witness
concerning the offenses charged. Specifically, defendant contends
the State did not lay a proper foundation pursuant to Rule 803(4)
of the North Carolina Rules of Evidence when it failed to show that
the statements made by the witness to Ms. Browder were for the
purposes of medical diagnosis or treatment. Defendant acknowledges
he failed to object to the testimony by Ms. Browder, but contends
the admission of her testimony amounted to plain error by the trialcourt. We disagree.
It is well established that the plain error rule may only be
applied in exceptional cases where, after reviewing the entire
record, it can be said the claimed error is “fundamental,”
resulting in a “miscarriage of justice or in the denial to
appellant of a fair trial.” State v. McCarty, 326 N.C. 782,
785-86, 392 S.E.2d 359 (1990). Such is not the case here. As
noted previously, the State presented ample evidence from which the
jury could find that defendant committed the charged offenses.
Even assuming, arguendo, that the admission of Ms. Browder's
testimony was error, such error did not result in a miscarriage of
justice or seriously affect the fairness of the judicial
proceedings. We overrule this assignment of error.
Defendant next argues the trial court should have granted his
motion to dismiss the charges on the ground that the evidence at
trial concerning the dates of the alleged offenses substantially
varied from the dates contained in the indictments. Essentially,
defendant's argument is the same as that raised in his first
assignment of error. As noted, supra, however, “[c]ourts are
lenient in child sexual abuse cases where there are differences
between the dates alleged in the indictment and those proven at
trial.” McGriff, 151 N.C. App. at 635, 566 S.E.2d at 779.
Here, the indictments alleged the offenses occurred in 1999
and 2001. The witness testified her birth date was 13 November
1989. She stated defendant began molesting her on a regular basis
when she was five years old and that such molestation continueduntil she was at least ten or eleven years old. During
cross-examination, the witness agreed that she might have been
twelve years old when some of the incidents took place. Thus the
evidence presented at trial did not fatally vary from the dates
alleged in the indictment. The State moreover presented strong
evidence in support for all of the elements of indecent liberties
with a child, and defendant presented no alibi evidence. We hold
the trial court did not err in denying defendant's motion to
dismiss.
Defendant further contends the trial court erred in
designating him a sexually violent predator. Defendant contends he
did not receive proper notice as required by section 14-208.20 of
our General Statutes, but notes that “should the State produce
copies of the notice to [defendant's appellate counsel, defendant]
will withdraw this assignment of error.” This Court has since
received a copy of the notice served on defendant's trial attorney
and sent to defendant's appellate counsel. This assignment of
error is therefore moot.
Finally, defendant argues the trial court erred in sentencing
him in the aggravated range after finding that defendant “took
advantage of a position of trust and confidence to commit the
offense.” Defendant contends the aggravation of his sentence
violated his right to trial by jury as articulated by the United
States Supreme Court's decision in Blakely v. Washington, 542 U.S.
__, 159 L. Ed. 2d 403, reh'g denied, ___ U.S. ___, 159 L. Ed. 2d
851 (2004). We agree and hold defendant is entitled to beresentenced in accordance with Blakely and State v. Allen, 359 N.C.
425, 615 S.E.2d 256 (2005).
No error in defendant's trial.
Remanded for resentencing.
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).
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