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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. DONALD WILLIAM ANDERSON, JR.
Filed: 4 April 2006
1. Indecent Liberties; Sexual Offenses--sufficiency of indictment--time periods
The trial court did not err in a multiple indecent liberties and multiple first-degree sexual
offense with a child under the age of thirteen years case by entering judgment against defendant
even though he contends the indictments were fatally defective based on the fact they alleged
only a year or a season for the dates of the offenses, because: (1) defendant admits he failed to
object to the indictments at trial, and he also failed to move for a bill of particulars or for
appropriate relief; (2) although defendant asserts insufficient time periods, it has been repeatedly
stated that in the interests of justice and recognizing that young children cannot be expected to be
exact regarding times and dates, the uncertainty as to time goes to the weight rather than the
admissibility of evidence; and (3) the indictments provided a person of ordinary intelligence a
reasonable opportunity to know what alleged conduct was prohibited.
2. Evidence--prior crimes or bad acts--cunnilingus
The trial court did not err in a multiple indecent liberties and multiple first-degree sexual
offense with a child under the age of thirteen years case by denying defendant's motion to
exclude evidence admitted under N.C.G.S. § 8C-1, Rule 404(b) that he performed a prior act of
cunnilingus on the victim based on the fact that the incident did not occur within Cabarrus
County, because: (1) the similarity of the 404(b) evidence to the offense and the temporal
proximity to the other incidents to the offense may reveal defendant's opportunity, plan, and
intent to take advantage of the minor victim; (2) following the first incident, defendant engaged
in numerous other sexual acts with the victim in the seclusion of his bedroom while her mother
was outside or away from the home; and (3) assuming arguendo that the evidence was
improperly admitted, defendant failed to show a different result would have been reached absent
this evidence in light of defendant's admissions and other evidence of defendant's guilt.
3. Sentencing--aggravating factors--took advantage of position of trust or confidence
The trial court did not abuse its discretion in a multiple indecent liberties and multiple
first-degree sexual offense with a child under the age of thirteen years case by sentencing
defendant in the aggravated range based on the jury finding beyond a reasonable doubt the
aggravating factor that defendant stepfather took advantage of a position of trust or confidence.
Appeal by defendant from judgments entered 23 September 2004
by Judge Larry G. Ford in Cabarrus County Superior Court. Heard in
the Court of Appeals 9 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force and Assistant Attorney General Robert C.
Montgomery, for the State.
Mercedes O. Chut, for defendant-appellant.
Donald William Anderson (defendant) appeals from judgment
entered after a jury found him to be guilty of three counts of
indecent liberties with H.B., a minor child, and five counts of
first-degree sexual offense with H.B., a child under the age of
thirteen years. We find no error.
A. State's Evidence
Defendant is H.B.'s stepfather. Defendant moved into H.B.'s
mother's home when H.B. was attending third grade. Defendant and
H.B.'s mother eventually married. Defendant moved out of the
marital home after accusations arose in this case.
H.B. was born on 6 June 1990. She testified the first time a
sexual incident occurred with defendant was when she was between
the ages of six and eight years old. At that time, H.B. told
defendant her private area was burning. Defendant told H.B. to
remove her clothes and led her into a bedroom where he inserted his
tongue into her vagina. Defendant told H.B. to not tell her mother
what defendant had done at that time.
The next sexual incident also occurred when H.B. was in the
third grade. H.B. testified defendant routinely asked her to lift
up her shirt or blouse so he could look at her breasts and to take
naps with him while H.B.'s mother was at work. When H.B. was
between nine and ten years old, defendant requested H.B. to take
naps with him approximately twice a month. During the naps,defendant would touch H.B.'s vagina and breasts over her clothes
and place his hands under her clothes. H.B. testified defendant
inserted his finger into her vagina.
When H.B. was between eleven and twelve years old, defendant
took H.B. into his bedroom and placed H.B.'s hands onto his penis,
while his pants were down. Defendant asked H.B. numerous times to
pull up her shirt so that he could touch her breasts. Defendant
assured H.B. he would not require her to do housework or homework
in exchange for her granting his sexual requests. H.B. testified
defendant commented, [i]f you let me look, I won't make you do
H.B. testified when she was attending sixth grade she spoke
with a guidance counselor at school about the incidents. She told
other adults, as well. H.B.'s mother demanded defendant to move
out of the marital home. Several months later, defendant moved
back into the home. After defendant returned, H.B. testified
defendant asked her on numerous occasions to pull up her shirt.
She refused. She also testified defendant peered through her
bathroom door and observed her taking a shower.
While H.B. was attending eighth grade, her teachers became
concerned after she consistently failed to turn in her homework.
When H.B.'s teachers questioned her about her poor school
performance, H.B. told them about her relationship with defendant.
The school guidance counselor scheduled a meeting with two social
workers. H.B. attended the meeting and informed them of the sexual
encounters she had experienced with defendant. Defendant's statements about some of the sexual incidents were
consistent with H.B.'s statements. Toby Lester (Lester), a
social worker for Cabarrus County Department of Social Services
(DSS), testified defendant admitted he had touched H.B.'s
privates and penetrated her private with his fingers.
Defendant admitted he had performed the acts so often he could not
state how many times they occurred. He also admitted he performed
oral sex on H.B. and had ejaculated after he placed H.B.'s hands
onto his penis. While defendant could not remember specific dates
when the conduct occurred, he told Lester that it happened from the
time H.B. was seven until one year before the trial.
Detective Scott Mason (Detective Mason) of the Cabarrus
County Sheriff's Department testified regarding a statement he took
from defendant. Defendant admitted the first time he engaged in
sexual touching of H.B. was when he was babysitting her during the
summer of 1998, when H.B. was seven or eight years old.
Defendant's account of the act was consistent with H.B.'s
testimony. Defendant admitted he rubbed H.B.'s breasts and vagina
while he took naps with her. Detective Mason wrote down
defendant's statement. Defendant signed the statement and
acknowledged it was true and accurate.
Dr. Greg Garraro at Suburban Pediatrics testified that he
examined H.B. and found no physical evidence of the alleged abuses.
Dr. Garraro stated physical evidence would not be expected to be
present three years after acts of digital penetration.
B. Defendant's Evidence
Defendant testified at trial and admitted portions of his
alleged conduct. He denied inserting his finger into H.B.'s
vagina. Defendant testified he was intoxicated when he talked with
Detective Mason. Defendant also testified he was distracted when
he talked to Detective Mason because he possessed marijuana and was
planning a method to get rid of it.
A jury found defendant to be guilty of three counts of
indecent liberties with a minor child and five counts of first-
degree sexual offense with a child under the age of thirteen. Two
counts of first-degree sexual offense were consolidated, and
defendant was sentenced to a minimum of 244 months and a maximum of
302 months incarcerated. The remaining three counts of first-
degree sex offense were consolidated, and defendant was sentenced
to a minimum of 245 months and a maximum of 303 months to be served
at the expiration of sentences imposed in 04 CRS 2409. Two counts
of indecent liberties were consolidated, and defendant was
sentenced to a minimum of eighteen and a maximum of twenty-two
months to be served at the expiration of sentences imposed in 04
CRS 2411. For the remaining count of indecent liberties, defendant
was sentenced to a minimum of eighteen and a maximum of twenty-two
months to be served at the expiration of 04 CRS 2412. Defendant
Defendant argues the trial court erred when it: (1) entered
judgment against him due to fatal defects in each indictment; (2)denied his motion to exclude evidence admitted under Rule 404(b);
and (3) sentenced him in the aggravated range.
A. Preservation of Error
 Defendant argues the trial court erred when it entered
judgments on fatally defective indictments. We disagree.
Defendant contends because the indictments provide only a
year or a season for the date of the offense, the trial court
failed to acquire jurisdiction over [defendant] and the judgments
against him are void. The indictments allege the following dates:
(1) First Degree Sex Offense, Summer 1999
(2) First Degree Sex Offense, Fall 1999
(3) First Degree Sex Offense, Winter 1999-2000
(4) First Degree Sex Offense, Spring 2000
(5) First Degree Sex Offense, Fall 2000
(6) Indecent Liberties with a Child, Summer
(7) Indecent Liberties with a Child, Summer
(8) Indecent Liberties with a Child, Winter
Defendant admits he failed to object to the indictments at
trial. Defendant also failed to move for a bill of particulars or
for appropriate relief. See State v
, 304 N.C. 293,
308, 283 S.E.2d 719, 729 (1981) (G.S. 15A-1415(b)(2) provides that
a motion for appropriate relief, which is based upon the trial
court's lack of subject matter jurisdiction, may be asserted by a
defendant 'any time' after verdict.). Our Supreme Court has stated:
It is well settled that a constitutional
question which is not raised and passed upon
in the trial court will not ordinarily be
considered on appeal.
An attack on an
indictment is waived when its validity is not
challenged in the trial court.
an indictment is alleged to be invalid on its
face, thereby depriving the trial court of its
jurisdiction, a challenge to that indictment
may be made at any time, even if it was not
contested in the trial court.
As to the
indictments challenged in defendant's motion
for appropriate relief, this Court has held
that a motion for appropriate relief filed
while an appeal is pending properly raises the
issue of an indictment's conferral of
jurisdiction to a trial court.
motion for appropriate relief generally does
not allow a defendant to raise an issue that
could have been raised on direct appeal, a
challenge to the trial court's jurisdiction
may be raised by a motion for appropriate
relief. Therefore, these issues are properly
before this Court.
, 351 N.C. 481, 503-04, 528 S.E.2d 326, 340-41
(internal quotations and citations omitted), cert
, 531 U.S.
1018, 148 L. Ed. 2d 498 (2000).
, our Supreme Court held, the failure of a
criminal pleading to charge the essential elements of the stated
offense is an error of law which may be corrected upon appellate
review even though no corresponding objection, exception or motion
was made in the trial division. 304 N.C. at 308, 283 S.E.2d at
In State v
, our Supreme Court arrested judgment
against the defendant. 306 N.C. 699, 700, 295 S.E.2d 449, 450
(1982). The Court found the indictment was fatally flawed becauseit charged the defendant with committing a first-degree sexual
offense for engaging in a sexual act with a victim who was twelve
years and eight months old, the statute forbidding such conduct
with children of the age of 12 years or less. Id
A motion in arrest of judgment is directed to
some fatal defect appearing on the face of the
record. It has been held that such a motion
may be made for the first time on appeal in
the Supreme Court. A motion in arrest of
judgment is proper when it is apparent that no
judgment against the defendant could be
lawfully entered because of some fatal error
appearing in: (1) the organization of the
court, (2) the charge made against the
defendant (the information, warrant or
indictment), (3) the arraignment and plea, (4)
the verdict, and (5) the judgment.
. at 702, 295 S.E.2d at 451 (internal citations omitted).
B. Sufficiency of Indictments
After reviewing sufficiency of indictments in child sexual
abuse charges, this Court stated:
Unless the date given in a bill of indictment
is an essential element of the crime charged,
the general rule in North Carolina,
particularly in child sex abuse cases, is that
an indictment is sufficient to charge a
defendant with the specific statutory offense
if it quotes the operative language of the
statute. Moreover, in North Carolina, the
statute under which a defendant is charged is
considered sufficiently specific under both
our federal and state constitutions if it
gives a person of ordinary intelligence a
reasonable opportunity to know what is
State v. Blackmon, 130 N.C. App. 692, 693-94, 507 S.E.2d 42, 43-44
(internal quotations and citations omitted), disc. rev. denied, 349
N.C. 531, 526 S.E.2d 470 (1998).
Regarding testimony in child sexual abuse cases, our Supreme
We have stated repeatedly that 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. Nonsuit may not be allowed on the
ground that the State's evidence fails to fix
any definite time for the offense where there
is sufficient evidence that defendant
committed each essential act of the offense.
State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984)
(internal citations omitted).
Defendant only argues the indictments alleged insufficient
time periods. He does not assert the indictments failed to allege
an essential element of each offense. Defendant failed to either
move for a bill of particulars or for appropriate relief. The
indictments provided a person of ordinary intelligence a
reasonable opportunity to know what [alleged conduct was]
prohibited. Blackmon, 130 N.C. App. at 693-94, 507 S.E.2d at 43-
44. Defendant failed to preserve this issue for review. This
assignment of error is dismissed.
IV. Rule 404(b) Evidence
 Defendant argues the trial court erred when it denied his
motion to exclude evidence admitted under Rule 404(b). Defendant
contends evidence he performed cunnilingus on the victim should nothave been admitted because the incident did not occur within
Cabarrus County and that charge had been dismissed. We disagree.
North Carolina Rule of Evidence 404(b) provides:
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.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005).
Our Supreme Court stated Rule 404(b) is a:
rule of inclusion of relevant evidence of
other crimes, wrongs or acts by a defendant,
subject to but one exception requiring its
exclusion if its only probative value is to
show that the defendant has the propensity or
disposition to commit an offense of the nature
of the crime charged. Thus, even though
evidence may tend to show other crimes,
wrongs, or acts by defendant and his
propensity to commit them, it is admissible
under Rule 404(b) so long as it also is
relevant for some purpose other than to show
that defendant has the propensity for the type
of conduct for which he is being tried.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)
(emphasis supplied) (citations and internal quotations omitted),
cert. denied, ___ N.C. ___, 421 S.E.2d 360 (1992).
The use of evidence under Rule 404(b) is guided by two
constraints: similarity and temporal proximity. State v.
Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201 (internal
quotations and citation omitted), cert. denied, 354 N.C. 222, 554
S.E.2d 647 (2001). Also, Rule 403 provides a balancing test and
states, evidence may be excluded if its probative value issubstantially outweighed by the danger of unfair prejudice. N.C.
Gen. Stat. § 8C-1, Rule 403 (2005).
The similarity of the 404(b) evidence to the offense and the
temporal proximity to the other incidents to the offense may reveal
defendant's opportunity, plan, and intent to take advantage of H.B.
After H.B. told defendant she was burning in her vaginal area,
defendant took H.B. to a private bedroom and performed cunnilingus
on her while her mother was not at home. The State's evidence also
tended to show that following the first incident, defendant engaged
in numerous other sexual acts with H.B. in the seclusion of his
bedroom while her mother was outside or away from the home. These
incidents occurred from the time H.B. was seven or eight years old
until one year before the trial.
Presuming without deciding the Rule 404(b) evidence was
improperly admitted, our standard of review becomes whether a
reasonable possibility exists that the evidence, if excluded, would
have altered the result of the trial. Our Supreme Court has
stated, [t]he burden is on the appellant not only to show error
but also to show that there is a reasonable possibility that, had
the error in question not been committed, a different result would
have been reached at the trial. State v. Galloway, 304 N.C. 485,
496, 284 S.E.2d 509, 516 (1981).
In light of defendant's admissions and other evidence
admitted, defendant has failed to show in the absence of this
evidence a different result would have been reached at the trial.
Id. This assignment of error is overruled.
V. Aggravated Sentencing
 Defendant argues the trial court erred when it interpreted
the law to require sentencing him in the aggravated range.
Defendant contends the trial court failed to exercise its
discretion and failed to weigh the aggravating and mitigating
factors in applying the sentencing statute. We disagree.
In Blakely v. Washington, the United States Supreme Court
held, [o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt. 542 U.S. 296, 301, 159 L. Ed. 2d 403, 412 (2004).
The State obtained superseding indictments alleging one
aggravating factor for each offense; i.e., that defendant took
advantage of a position of trust or confidence.
N.C. Gen. Stat. § 15A-1340.16 (2005) was amended after
Blakely, and provides:
The court shall consider evidence of
aggravating or mitigating factors present in
the offense that make an aggravated or
mitigated sentence appropriate, but the
decision to depart from the presumptive range
is in the discretion of the court.
. . . .
If the jury, or with respect to an aggravating
factor under G.S. 15A-1340.16(d)(18a), the
court, finds that aggravating factors exist or
the court finds that mitigating factors exist,
the court may depart from the presumptive
range of sentences specified in G.S.
15A-1340.17(c)(2). If aggravating factors are
present and the court determines they are
sufficient to outweigh any mitigating factors
that are present, it may impose a sentence
that is permitted by the aggravated rangedescribed in G.S. 15A-1340.17(c)(4). If the
court finds that mitigating factors are
present and are sufficient to outweigh any
aggravating factors that are present, it may
impose a sentence that is permitted by the
mitigated range described in G.S.
The jury found the existence of the aggravating factor beyond
a reasonable doubt for each offense. Defense counsel, the district
attorney, and the trial court discussed at length the trial court's
weighing of the aggravating and the two mitigating factors, in
light of Blakely. Id. The State asked the trial court to
accredit the jury's verdict and find this aggravating factor and
then weigh it as appropriate against any mitigating factors that
may be appropriate and then set an appropriate sentence.
Immediately before imposing the aggravated sentences, the trial
court indicated it would deviate from the presumptive range. The
court stated, I'm not going to defeat what the jury said here so
I'm going to do something.
Defendant has failed to show any abuse in the trial court's
discretion to sentence him in the aggravating range after the jury
found the aggravating factors to exist beyond a reasonable doubt.
This assignment of error is overruled.
Defendant failed to object or to move for a bill of
particulars or for appropriate relief to preserve his assignment of
error concerning the indictments for appellate review. The
indictments alleged each essential element of each offense. The
trial court did not err when it denied defendant's motion toexclude evidence under North Carolina Rules of Evidence, Rule
The trial court did not err when it sentenced defendant in the
aggravating range after the jury found aggravating factors to exist
beyond a reasonable doubt. The sentence was proper notwithstanding
the trial court also finding two mitigating factors to exist.
Defendant received a fair trial free from errors he assigned and
Judges MCCULLOUGH and LEVINSON concur.
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