Appeal by defendant from judgments entered 13 January 2005 by
Judge Cy A. Grant in Hertford County Superior Court. Heard in the
Court of Appeals 15 March 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Anne M. Middleton, for the State.
William D. Spence for defendant-appellant.
HUNTER, Judge.
Stanley Arnold Brown (“defendant”) appeals from judgments
entered 13 January 2005 consistent with jury verdicts finding him
guilty of two counts of statutory sexual offense of a person
thirteen years old. For the reasons stated herein, we find no
error.
The evidence tends to show that defendant resided with the
family of Sarah
(See footnote 1)
for several years and was involved for some time
in a relationship with Sarah's grandmother, her primary caretaker.
During the summer and fall of 2003, defendant began to touch
Sarah's breasts and vagina. Sarah was twelve years old at that
time. In December of 2003, Sarah testified that while watching a
movie in defendant's room, defendant pulled down her pants and
placed his penis in her vagina. Sarah stated that a second
incident occurred later while she was playing a video game in
defendant's room. Defendant entered the room, threw her on the
bed, pulled down her pants, and stuck his penis in her vagina.
Sarah stated that her family moved away from defendant after her
thirteenth birthday, 16 April 2004. Sarah testified that no
further incidents occurred after her family moved away from
defendant.
Testimony was also offered by Odie Rollings (“Rollings”), a
federal inmate housed at the Pitt County Jail, in corroboration of
Sarah's testimony. Rollings testified defendant told Rollings he
had sex with Sarah twice. Rollings stated that defendant told himthe first time he touched Sarah was in December 2003, and the
second time was while defendant was in his room playing video
games.
Defendant testified at trial that he had not touched Sarah
inappropriately and had not raped her.
Defendant was convicted of two counts of statutory sex offense
of a person thirteen years old, and was sentenced to consecutive
sentences of 240 to 297 months. Upon motion to the trial court by
the State, the judgment in 04CRS002310 was set aside. Defendant
appeals from his judgment and conviction in 04CRS003406.
I.
[1] Defendant first contends the trial court erred in
overruling defendant's motion
in limine to exclude photographs of
nude women and in admitting the photographs into evidence. We
disagree.
Defendant relied on the amended Rule 103(a) of the North
Carolina Rules of Evidence in effect at the time of trial, which
directed, “[o]nce the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party
need not renew an objection or offer of proof to preserve a claim
of error for appeal.” N.C. Gen. Stat. § 8C-1, Rule 103(a)(2)
(2005). This Court has recently held Rule 103 to be inconsistent
with Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure.
State v. Tutt, 171 N.C. App. 518, 521, 615 S.E.2d 688,
690 (2005) (footnote omitted) (stating that “Rule 103(a)(2) of the
North Carolina Rules of Evidence is in direct conflict with Rule10(b)(1) of the Rules of Appellate Procedure as interpreted by our
case law on point[,]” in accord with previous Supreme Court
opinions,
State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493
(1987),
State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790
(1983), and
State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664
(1981), striking down statutes providing review of errors even
though no objection, exception or motion was made in the trial
division). We note that we are bound by the prior decisions of
this Court.
See In the Matter of Appeal from Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure states, in part, that “[i]n order to preserve a question
for appellate review, a party must have presented to the trial
court a timely request, objection or motion[.]” N.C.R. App. P.
10(b)(1). “[A] motion
in limine is not sufficient to preserve for
appeal the question of admissibility of evidence if the defendant
does not object to that evidence at the time it is offered at
trial.”
State v. Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723
(2000). Defendant offered no objection to the admission of the
photographs at issue at trial, and failed to preserve the issue for
review.
However, as defendant relied on a procedural statute presumed
constitutional at the time of trial, it would be a manifest
injustice to not review defendant's appeal on the merits. We
therefore review this assignment of error in our discretion
pursuant to Rule 2 of the North Carolina Rules of AppellateProcedure. N.C.R. App. P. 2.;
see Tutt, 171 N.C. App. at 524, 615
S.E.2d at 693 (invoking Rule 2 to review evidence in the Court's
discretion to prevent manifest injustice).
[2] N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) states in part
that:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Id. In
State v. Williams, 318 N.C. 624, 350 S.E.2d 353 (1986),
evidence was offered by the defendant's wife, the victim's step-
mother, that the defendant had taken her and the victim to an X-
rated drive-in movie with explicit sexual scenes, and had
encouraged the victim to look at them.
Id. at 626-27, 350 S.E.2d
at 355. The defendant in
Williams contended that such evidence was
impermissible character evidence and should not have been admitted.
Id. at 631, 350 S.E.2d at 357.
Williams found that the evidence of
the “daughter's presence at the film at defendant's insistence, and
his comments to her show[ed] his preparation and plan to engage in
sexual intercourse with her and assist[ed] in that preparation and
plan by making her aware of such sexual conduct and arousing her.”
Id. at 632, 350 S.E.2d at 358.
In
State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988), the
defendant also contended that the admission of evidence which
included pornographic magazines and movies was error, as the items
“tended to prove only the character of the defendant in order toshow that he acted in conformity therewith.”
Id. at 534, 364
S.E.2d at 129. In
Rael, the victim testified that on the day of
the incident, the defendant had shown him pornographic magazines
and movies.
Id. at 533, 364 S.E.2d at 128.
Rael found that the
videotapes, magazines, and testimony concerning them were relevant
to corroborate the victim's testimony, and were therefore
admissible.
Id. at 534, 364 S.E.2d at 129.
Here, Sarah testified that defendant showed her four
photographs of nude adult women with whom she was acquainted prior
to the first time defendant engaged in a sexual act with her, and
that defendant told her that he was going to take similar pictures
of her. Sarah further testified that defendant attempted to take
pictures of her, but that defendant was unable to get her
grandmother's camera. The admission of the photographs into
evidence served to corroborate Sarah's testimony of defendant's
actions and provided evidence of a plan and preparation to engage
in sexual activities with her.
Unlike in the cases of
State v. Bush and
State v. Smith cited
by defendant, where the proffered evidence at trial were not items
shown to the victim, the photographs admitted here, like the movie
in
Williams and the videotapes and magazines in
Rael, were shown to
the victim and demonstrated defendant's preparation and planning to
engage in sexual acts with the victim.
See State v. Bush, 164 N.C.
App. 254, 261, 595 S.E.2d 715, 719 (2004) (finding error in
admission of pornographic videotapes when there was “no evidence
that defendant provided pornographic videotapes to [the victim] oremployed the tapes to seduce [the victim]”);
State v. Smith, 152
N.C. App. 514, 522, 568 S.E.2d 289, 294 (2002) (holding “[e]vidence
of defendant's mere possession of pornographic materials does not
tend 'to make the existence of any fact that is of consequence to
the determination of the action more or less probable than it would
be without the evidence'”). As the photographs were admitted for
a permissible purpose other than to show defendant's character in
conformity therewith, we find no error in the trial court's
admission of the evidence. Defendant's assignment of error is
overruled.
II.
[3] Defendant next contends the trial court erred in failing
to dismiss the charges against defendant for insufficient evidence.
We disagree.
“'In ruling on a motion to dismiss the trial court is to
consider the evidence in the light most favorable to the State.'”
State v. Buff, 170 N.C. App. 374, 379, 612 S.E.2d 366, 370 (2005)
(citation omitted). “'In so doing, the State is entitled to every
reasonable intendment and every reasonable inference to be drawn
from the evidence; contradictions and discrepancies do not warrant
dismissal of the case--they are for the jury to resolve.'”
Id.
“The court is to consider all of the evidence actually admitted,
whether competent or incompetent, which is favorable to the State.”
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). Defendant was charged with a violation of N.C. Gen. Stat. §
14-27.7A, statutory sexual offense of a person thirteen years old.
N.C. Gen. Stat. § 14-27.7A(a) (2005) states:
A defendant is guilty of a Class B1 felony if
the defendant engages in vaginal intercourse
or a sexual act with another person who is 13,
14, or 15 years old and the defendant is at
least six years older than the person, except
when the defendant is lawfully married to the
person.
Id. Defendant here was indicted for commission of a sexual act
with a thirteen-year-old. A sexual act for the purposes of the
statute is defined as, “cunnilingus, fellatio, analingus, or anal
intercourse, but does not include vaginal intercourse. Sexual act
also means the penetration, however slight, by any object into the
genital or anal opening of another person's body[.] N.C. Gen.
Stat. § 14-27.1(4) (2005).
Defendant contends that insufficient evidence was offered to
show that defendant committed a sexual act, in this case insertion
of his finger into the victim's vagina, while she was thirteen
years of age. A review of the transcript shows that Sarah
testified that defendant “stuck his fingers in [her] vagina” while
she was thirteen years old and living at the address on South Drive
her family shared with defendant. When taken in the light most
favorable to the State, such testimony provides substantial
evidence sufficient to survive a motion to dismiss for insufficient
evidence. Defendant's assignment of error is overruled.
III.
[4] Defendant finally contends the trial court erred in
failing to dismiss the charges against defendant and in signing and
entering judgment and commitment in 04CRS003406 because of a fatal
variance in the indictment and the evidence at trial. We disagree.
The purpose of an indictment is to give a
defendant notice of the crime for which he is
being charged; and it has long been
established that
“[a]n indictment or criminal charge is
constitutionally sufficient if it apprises the
defendant of the charge against him with
enough certainty to enable him to prepare his
defense and to protect him from subsequent
prosecution for the same offense.”
State v. Bowen, 139 N.C. App. 18, 24, 533 S.E.2d 248, 252 (2000)
(citations omitted). This Court has previously held that “'the
date given in the bill of indictment is not an essential element of
the crime charged and the fact that the crime was in fact committed
on some other date is not fatal.'”
State v. Burton, 114 N.C. App.
610, 612, 442 S.E.2d 384, 386 (1994) (citation omitted). Further,
we have recognized a “[j]udicial tolerance of variance between the
dates alleged and the dates proved” in cases involving child sexual
abuse.
Id. at 613, 442 S.E.2d at 386;
see also State v. Norris,
101 N.C. App. 144, 150-51, 398 S.E.2d 652, 656 (1990). “Unless a
defendant demonstrates that he was deprived of the opportunity to
present an adequate defense due to the temporal variance, the
policy of leniency governs.”
Burton, 114 N.C. App. at 613, 442
S.E.2d at 386.
Defendant was indicted on the grounds that “between 3-01-04
and 6-30-04” he “unlawfully, willfully and feloniously did engagein a sexual act with [Sarah], a person of the age of 13 years. At
the time of the offense, the defendant was at least six years older
than the victim and was not lawfully married to the victim.” At
trial, evidence was presented that Sarah's thirteenth birthday was
16 April 2004. Defendant contends that as the evidence presented
at trial showed that Sarah was twelve years of age for a portion of
the time period specified in the indictment, a fatal variance
occurred.
As discussed
supra in Section II, Sarah specifically testified
that one of the offenses occurred while she was thirteen years of
age, prior to her move at the end of April, a date within the time
period set out by the indictment. The trial court instructed the
jury that:
The defendant, Mr. Brown, has been charged
with statutory sexual offense against a victim
who was thirteen years old at the time of the
offense. For you to find the defendant guilty
of this offense, the State must prove four
things beyond a reasonable doubt.
First, that the defendant engaged in a
sexual act with the victim. . . .
Second, that at the time of the act, the
victim was thirteen years old. Third, that at
the time of the act, the defendant was at
least six years older than the victim. And
fourth, that at the time of the act, the
defendant was not lawfully married to the
victim.
. . .
[I]f you find from the evidence beyond a
reasonable doubt that between the dates of
March 1, 2004 and April 30, 2004, the
defendant engaged in a sexual act with the
victim who was thirteen years old by inserting
his finger into the vagina of [Sarah], andthat the defendant was at least six years
older than the victim, and was not lawfully
married to the victim, it would be your duty
to return a verdict of guilty. If you do not
so find or if you have a reasonable doubt as
to one or more of these things, it would be
your duty to return a verdict of not guilty.
(Emphasis added.) The trial court properly instructed the jury
that they must find that the victim was thirteen years old at the
time of the act in order to find defendant guilty, and evidence
presented at trial supports this instruction. Defendant does not
contend that he was deprived of the opportunity to present an
adequate defense due to the temporal variance in the indictment.
As the indictment was sufficient to inform defendant “'of the
charge against him with enough certainty to enable him to prepare
his defense and to protect him from subsequent prosecution for the
same offense[,]'” we conclude no fatal variance existed between the
indictment, the proof presented at trial, and the instructions
given to the jury. Bowen, 139 N.C. App. at 24, 533 S.E.2d at 252
(citation omitted). Defendant's assignment of error is overruled.
As the trial court did not err in its admission of photographs
or denial of defendant's motion to dismiss for insufficient
evidence, and no fatal variance exists between the indictment and
jury instructions, we find no error in defendant's conviction and
judgment.
No error.
Judges HUDSON and BRYANT concur.
Footnote: 1