Appeal by defendant from judgments entered 20 August 2004 by
Judge Evelyn W. Hill in Alamance County Superior Court. Heard in
the Court of Appeals 7 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Diane G. Miller, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller and Assistant Appellate Defender
Daniel R. Pollitt, for defendant-appellant.
Defendant William Earl Fuller appeals his convictions for two
counts of indecent liberties with a child and three counts of first
degree rape of a child. On appeal, defendant argues primarily that
the trial court's jury instructions erroneously denied him the
right to a unanimous jury. State v. Lawrence, 360 N.C. 368, 627
S.E.2d 609 (2006), however, establishes that no unanimity problem
occurred in this case. Defendant also contends that the trial
judge's conduct throughout the trial denied him his constitutionalright to an impartial tribunal, to present a defense, and to
effective assistance of counsel. While we do not agree that the
trial judge's behavior requires a new trial, we agree with
defendant that it appears the trial judge improperly based
defendant's sentence, at least in part, on defendant's decision to
proceed with a jury trial rather than plead guilty. We, therefore,
remand for a new sentencing hearing.
At trial, the State's evidence tended to show the following
facts. Sometime in January 2003, Victoria noticed that Timothy,
her 10-year-old son, and his younger brother David were unusually
quiet while taking their bath.
(See footnote 1)
Upon entering the bathroom,
Victoria "didn't see anything going on," but she noticed that both
children's "private areas were . . . erect." When questioned,
Timothy explained he had been "on top of" David because he had not
"done it in a long time." Timothy told Victoria he had "done it"
before with defendant's girlfriend, Teresa Mitchell. Defendant is
Timothy's father, and, at the time, Mitchell was 33 or 34 years
On 6 February 2003, Victoria took Timothy to see Dr. Sara
Patel with complaints of a swollen and painful testicle. Dr. Patel
spoke with Timothy in private and asked him if any one had hurt or
touched his private area. Timothy explained defendant was
"teaching him how to be . . . a man" by
making Timothy have sexualintercourse with Mitchell. Dr. Patel's office contacted the
Department of Social Services.
Timothy was later interviewed by Sergeant Pete Acosta of the
Graham Police Department and told Sergeant Acosta that defendant
had made him engage in sexual acts with Mitchell. Sergeant Acosta
thereafter interviewed Mitchell, who admitted that Timothy's
statements were true.
Defendant was indicted for three counts of first degree rape
and two counts of taking indecent liberties with a child. Upon a
plea of not guilty, the matter went to trial before Judge Evelyn W.
Hill beginning on 4 August 2004.
At trial, Timothy testified that defendant told Timothy to
come into defendant's bedroom while Mitchell was naked on the bed.
Defendant instructed Timothy to take off his clothes and "get on"
Mitchell. Defendant then put his hand on Timothy's back and guided
him "up and down" while Timothy had sex with Mitchell. Afterwards,
defendant "show[ed] [Timothy] how to do it" by having sex with
Mitchell while Timothy watched. Timothy also testified to possibly
three other instances during which he had sex with Mitchell while
defendant observed, either surreptitiously from a closet, or
directly from the bed or a nearby chair.
Mitchell testified that the first instance of sexual conduct
occurred at the Trails End Apartments in 2001 when defendant made
Timothy have sex with Mitchell and then had sex with Mitchell
himself while Timothy watched. Mitchell then testified to a second
instance of sexual conduct at the Trails End Apartments duringwhich defendant again made Timothy have sex with Mitchell while
Mitchell simultaneously performed oral sex on defendant. Finally,
Mitchell testified to a third sexual incident, occurring at the
Park Ridge Apartments in 2002, in which defendant told Timothy he
was leaving and instructed Mitchell to lay in bed naked. As
defendant hid in a nearby closet, Mitchell called Timothy into the
bedroom. Although Timothy came into the room as instructed, he
ultimately urinated on himself. Mitchell left the room and told
defendant, but defendant directed Mitchell to "do what he had told
[her] to do." Mitchell then had sex with Timothy for "15 or 20
seconds" and sent Timothy back to his room.
The jury found defendant guilty of three counts of first
degree rape and two counts of taking indecent liberties with a
child. The trial court sentenced defendant to a prison term within
the presumptive range of 336 to 413 months for one count of first
degree rape. The trial court then consolidated the remaining four
counts and sentenced defendant to an additional consecutive term
within the presumptive range of 336 to 413 months. Defendant
timely appealed to this Court.
Indecent Liberties Jury Instructions
 We first address defendant's contention that the trial
court committed plain error with respect to the indecent liberties
charges by instructing the jury on a theory of guilt not charged in
"'The plain error rule applies only in truly
exceptional cases. Before deciding that an error by the trial
court amounts to plain error, the appellate court must be convincedthat absent the error the jury probably would have reached a
different verdict. . . . In other words, the appellate court must
determine that the error in question tilted the scales and caused
the jury to reach its verdict convicting the defendant.'" State v.
, 360 N.C. 110, 138-39, 623 S.E.2d 11, 29-30 (2005) (quoting
State v. Walker
, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).
Defendant argues that because the State's original indecent
liberties indictments charged him as a principal, but the State's
superceding indictments later charged him only as an aider and
abettor, the trial court committed plain error by instructing the
jury that defendant could be convicted of committing indecent
liberties on a child either
as a principal or
as an aider and
abettor. Under N.C. Gen. Stat. § 15A-646 (2005):
If at any time before entry of a plea of
guilty to an indictment or information, or
commencement of a trial thereof, another
indictment or information is filed in the same
court charging the defendant with an offense
charged or attempted to be charged in the
first instrument, the first one is, with
respect to the offense, superseded by the
second and, upon the defendant's arraignment
upon the second indictment or information, the
count of the first instrument charging the
offense must be dismissed by the superior
As defendant contends, pursuant to N.C. Gen. Stat. § 15A-646, the
State's later indictments did, therefore, supercede the original
Nevertheless, "the chief policies underlying the indictment
requirement are (1) to give the defendant notice of the charge
against him to the end that he may prepare a defense and be in aposition to plead double jeopardy if he is again brought to trial
for the same offense and (2) to enable the court to know what
judgment to pronounce in case of conviction." State v. Jones
N.C. 832, 837, 616 S.E.2d 496, 499 (2005) (internal quotation marks
omitted). Accordingly, this Court has held that "[a] bill of
indictment is legally sufficient if it charges the substance of the
offense and puts the defendant on notice that he will be called
upon to defend against proof of the manner and means by which the
crime was perpetrated." State v. Ingram
, 160 N.C. App. 224, 225,
585 S.E.2d 253, 255 (2003), aff'd per curiam
, 358 N.C. 147, 592
S.E.2d 687 (2004). "It is only 'where the evidence tends to show
the commission of an offense not charged in the indictment [that]
there is a fatal variance between the allegations and the proof
requiring dismissal.'" State v. Poole
, 154 N.C. App. 419, 423, 572
S.E.2d 433, 436 (2002) (alteration original) (quoting State v.
, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981)), cert.
, 356 N.C. 689, 578 S.E.2d 589 (2003).
"Because aiding and abetting is not a substantive offense but
just a theory of criminal liability, allegations of aiding and
abetting are not required in an indictment . . . ." State v.
, 140 N.C. App. 600, 602, 537 S.E.2d 827, 829 (2000).
Consequently, the superceding indictments simply placed defendant
on notice that he would have to defend as to a different theory of
guilt, but not a different criminal offense. The fact that the
State presented evidence tending to show that defendant committed
indecent liberties as a principal as well as an aider and abettordid not mean the State offered evidence of "'commission of an
offense not charged in the indictment,'" Poole
, 154 N.C. App. at
423, 572 S.E.2d at 436 (quoting Williams
, 303 N.C. at 510, 279
S.E.2d at 594), and, therefore, no fatal variance occurred. We
conclude, therefore, that the trial judge did not err in
instructing the jury that it could convict defendant of indecent
liberties under either a principal or aiding and abetting theory.
Cf. State v. Ainsworth
, 109 N.C. App. 136, 142-43, 426 S.E.2d 410,
414-15 (1993) (concluding indictment alleging first degree rape was
sufficient to convict defendant of aiding and abetting first degree
rape). This assignment of error is, accordingly, overruled.
 We next consider defendant's argument that he was denied
his constitutional right to a unanimous jury verdict because the
State presented evidence of a greater number of sexual acts than
there were charges, and the trial court's instructions and verdict
sheet failed to require the jury to unanimously agree on which
specific criminal acts defendant committed before finding him
guilty. We disagree.
With respect to the two charges of indecent liberties, the
jury was instructed that defendant could be found guilty on those
charges either as a principal or as an aider and abettor. The
State offered evidence that defendant had himself committed two
acts that could amount to indecent liberties: (1) engaging in
sexual intercourse with his girlfriend in Timothy's presence, and
(2) having his girlfriend perform fellatio on him in Timothy'spresence. In addition, the State argued that defendant could be
convicted of indecent liberties based on having aided and abetted
Mitchell's three instances of sexual intercourse with Timothy.
Although the two theories of guilt mean that the jury may have
considered a greater number of incidents than the two counts of
indecent liberties charged in the indictments, our Supreme Court
has held that "a defendant may be unanimously convicted of indecent
liberties even if: (1) the jurors considered a higher number of
incidents of immoral or indecent behavior than the number of counts
charged, and (2) the indictments lacked specific details to
identify the specific incidents." State v. Lawrence
, 360 N.C. 368,
375, 627 S.E.2d 609, 613 (2006)
The Court reached this conclusion
because, in the context of indecent liberties, "while one juror
might have found some incidents of misconduct and another juror
might have found different incidents of misconduct, the jury as a
whole found that improper sexual conduct occurred." Id.
627 S.E.2d at 612-13. This case is materially indistinguishable
, which requires us to hold that no lack of unanimity
occurred with respect to the two indecent liberties charges.
Regarding the three counts of first degree rape, a different
analysis applies. In Lawrence
, the Supreme Court concluded that
even though the victim testified that she had had sexual
intercourse with the defendant 32 separate times, there was no
unanimity issue when "the evidence presented at trial tended to
show five specific instances of statutory rape," the jury was given
five separate verdict sheets for the rape offenses, the juryreturned five guilty verdicts for the five counts of rape, and the
jury was instructed generally as to the need for a unanimous
at 375, 627 S.E.2d at 613.
In this case, the verdict sheets included specific dates for
the acts. The first and second sheets _ each including a count of
rape and a count of indecent liberties _ specified that the acts
occurred between 1 February 2001 and 1 September 2001. According
to the State's evidence, those dates corresponded with the time
frame in which Mitchell lived at the Trails End Apartments. The
evidence at trial included detailed descriptions of only two
incidents of rape that occurred at the Trails End Apartments. The
third verdict sheet specified a date of occurrence of between 10
November 2002 and 25 December 2002. The evidence included a
detailed description of one incident of rape that occurred during
that time frame. While, as in Lawrence
, Timothy's testimony and
statement to the police suggested that other incidents may have
occurred, the evidence and argument focused in detail upon only
three specific occasions of intercourse _ the same number of
instances as verdict sheets. Further, a general instruction on
unanimity was given to the jury. Accordingly, under Lawrence
unanimity issue exists. This assignment of error is, therefore,
Judge Hill's Conduct During Trial
 Defendant next argues that the trial judge's
"unprofessional behavior at trial denied defendant his state and
federal constitutional rights to an impartial tribunal, to presenta defense, and to the effective assistance of counsel." In
addressing this argument, we must determine whether "the cumulative
nature of the trial judge's inappropriate comments to the defense
counsel . . . tainted the atmosphere of the trial to the detriment
of Defendant." State v. Wright
, 172 N.C. App. 464, 470, 616 S.E.2d
366, 370, aff'd per curiam in part
, 360 N.C. 80, 621 S.E.2d 874,
disc. review denied in part
, 360 N.C. 78, 624 S.E.2d 633 (2005)
Phrased differently, we must assess whether the trial court
"created an impermissibly chilling effect on the trial process and
most likely affected defense counsel's ability to question the
remaining witnesses, thereby prejudicing Defendant." Id.
616 S.E.2d at 370.
Here, there is no question that the trial judge inserted
herself into the trial to an extraordinary degree, repeatedly
sustaining her own ex mero motu
objections and asking her own
questions of the witnesses. Not infrequently, her objections were
inconsistent with the rules of evidence, such as when she claimed
incorrectly that a question necessarily called for hearsay.
Further, she made various intemperate remarks suggesting impatience
with defense counsel. A review of the entire transcript, however,
does not reveal the same chilling effect present in Wright
The trial judge's criticisms of defense counsel's questions
did not, as was the case in Wright
, necessarily belittle counsel.
Instead, the transcript suggests that the judge was working with
counsel to ensure that the questions were asked in language that a
sixth grader, such as Timothy, would understand _ an effortultimately designed to advance defendant's ability to obtain
appropriate responses to counsel's questions. Other interventions
of the trial judge rephrased questions of defense counsel to comply
with the foundational requirements for admission of evidence such
as reputation testimony. The trial judge's expressions of
impatience with respect to defense counsel's questions and
identification of witnesses, while perhaps unnecessarily acerbic,
also reflected the fact that defendant was attempting to elicit
testimony that was not admissible, and counsel was making it
difficult for the trial judge to project the likely time line of
the trial. With respect to some remarks, whether they were
inappropriate or prejudicial depends upon the nature of the
inflection used _ something that cannot be determined merely from
the transcript. Further, the trial judge on multiple occasions
vigorously defended defense counsel's competence in open court in
the face of repeated attacks by defendant and his family.
Based upon our review of the transcript, we conclude that the
trial judge's conduct, although not a model of temperateness, did
not reach the level of the conduct in Wright
. This assignment of
error, therefore, is overruled.
 With respect to defendant's sentence, we first address his
the trial court erred by including in its calculation
of his prior record level two separate convictions received on the
same day in the same county, one of which was in district court andthe other in superior court. N.C. Gen. Stat. § 15A-1340.14(d)
(2005) provides as follows:
Multiple Prior Convictions Obtained in One
Court Week. _ For purposes of determining the
prior record level, if an offender is
convicted of more than one offense in a single
superior court during one calendar week, only
the conviction for the offense with the
highest point total is used. If an offender
is convicted of more than one offense in a
single session of district court, only one of
the convictions is used.
"Where the words of a statute have not acquired a technical
meaning, they must be construed in accordance with their common and
ordinary meaning." State v. Koberlein,
309 N.C. 601, 605, 308
S.E.2d 442, 445 (1983). The plain language of N.C. Gen. Stat. §
15A-1340.14(d) states: Only one conviction obtained during the same
calendar week in the same court
may be used to calculate prior
record level. The statute does not, however, prohibit the use of
multiple convictions obtained in different courts in the same week.
Accordingly, this assignment of error is overruled.
 Finally, we consider defendant's contention that he is
entitled to a new sentencing hearing because the trial judge based
defendant's sentence on improper factors and effectively punished
defendant for exercising his constitutional
right to a jury trial.
(See footnote 2)
A sentence within statutory limits is "presumed regular." State v.
, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). When,
however, "it can be reasonably inferred the sentence imposed on a
defendant was based, even in part
, on the defendant's insistence on
a jury trial, the defendant is entitled to a new sentencing
hearing." State v. Peterson
, 154 N.C. App. 515, 517, 571 S.E.2d
883, 885 (2002) (emphasis added).
Judge Hill's comments prior to imposing two consecutive
maximum presumptive range sentences of 336 to 413 months indicate
that she based the sentences in part on defendant's insistence on
proceeding with a jury trial. Repeatedly, the judge emphasized
that defendant, in contrast to Mitchell, had not come forward and
admitted what he had done, but instead had forced his son to take
the witness stand and be subjected to "painful and embarrassing
questions." Further, the court made multiple references to
defendant's trying to manipulate the jury and the court. While the
State suggests that the trial judge based the sentences on a desire
to protect other children, Judge Hill's emphasis upon the pain
imposed on Timothy in requiring him to testify indicates that she
was basing defendant's sentence, at least in part, on his decision
to go to trial. We cannot meaningfully distinguish this case from Peterson
at 516-17, 571 S.E.2d at 884 (ordering new sentencing
hearing when trial court stated that defendant tried to be a "con
artist" with the jury, that he "rolled the dice in a high stakes
game with the jury" and lost the gamble, and that the evidence of
guilt was such that a rational person would never have rolled the
dice by asking for a jury trial). As a result, we vacate
defendant's sentence and remand for a new sentencing hearing. See
also State v. Young
, 166 N.C. App. 401, 412-13, 602 S.E.2d 374, 381
(2004) (ordering new sentencing hearing when trial court had
indicated it would impose a mitigated sentence if defendant pled
guilty prior to trial, but that a sentence would be from the
presumptive range following trial), disc. review denied
, 359 N.C.
326, 611 S.E.2d 851 (2005).
No error in part; remanded for a new sentencing hearing.
Judges McGEE and CALABRIA concur.