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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. ALFRED ALPHONZA WALLACE
Filed: 17 October 2006
1. Evidence_psychologist's testimony_child's behavior_consistent with abuse victims
There was no plain error in the admission of a psychologist's testimony that a child
sexual abuse victim's behavior, sense of trust, and emotional problems were consistent with
sexually abused children. The witness did not state that the offenses occurred, and did not
proffer an opinion on credibility. Defendant did not show that a different outcome would have
occurred without this testimony in light of the other evidence presented.
2. Evidence_detective's testimony_nature of testimony by child sexual abuse
victims_permissible lay testimony
A detective's testimony that child sexual abuse victims do not tell exactly the same story
every time constituted permissible lay testimony. His experience supports his testimony on the
procedure he uses for questioning victims, and he offered no opinion on the credibility of the
3. Sexual Offenses_amendment of indictment_child victim_dates of offenses changed
There was no error in allowing amendment of an indictment for sexual offenses against a
child to change the dates of the alleged offenses. Time was not an essential element of the
offenses charged, the amendment did not substantially alter the charges, and defendant had
4. Sexual Offenses_against child_evidence sufficient
There was sufficient evidence of sexual assaults upon a thirteen-year-old child to
withstand a motion to dismiss an indictment for statutory sexual offenses.
5. Constitutional Law_unanimous verdict_sexual offenses against child_agreement on
specific acts to support each verdict
Defendant's constitutional right to a unanimous jury was not violated where he was
charged with multiple sexual offenses against a child and argued that neither the instructions nor
the verdict sheets required that the jury agree unanimously on the specific acts to support each
verdict. The reasoning of State v. Lawrence, 360 N.C. 368, may be imputed to sexual offense
Appeal by defendant from judgments entered 8 April 2005 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard
in the Court of Appeals 12 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellant.
Alfred Alphonza Wallace (defendant) appeals from judgments
entered after a jury found him to be guilty of one count of
statutory sex offense and two counts of statutory sex offense with
a thirteen, fourteen, or fifteen year old by a person at least six
years older. We find no error.
A. State's Evidence
The State's evidence tended to show that the victim (A.W.)
was born on 6 January 1988 during the marriage of her mother and
defendant. A.W.'s mother and defendant divorced within two years
after her birth. A.W. and her mother moved to Atlanta, Georgia.
Defendant continued to reside in North Carolina, and A.W. visited
defendant during summers and holidays. A.W. testified during the
summer of 2000 she was twelve-years-old and visited defendant.
A.W. fell asleep on defendant's couch and awoke after he pulled
down her covers and inserted his fingers into her vagina. A.W.
pushed defendant away and ran into another room. A.W. did not tell
her mother about the incident because defendant apologized and she
did not think such conduct would re-occur. This was the only
incident during the summer of 2000 of sexual contact between
defendant and A.W.
During the summer of 2001 at age thirteen, A.W. again visited
defendant. Defendant entered A.W.'s room either every night orevery-other night and inserted his fingers in A.W.'s vagina.
Defendant also masturbated to the point of ejaculation in the
presence of A.W. A.W. tried to avoid defendant's behavior by
sleeping in her brother's bedroom. A.W. did not tell anyone about
these summer 2001 abuses and assaults.
A.W. visited defendant during Thanksgiving or Christmas 2001
and during the summer of 2002. During these visits, defendant
engaged in these past behaviors: defendant entered A.W.'s room and
inserted his fingers into A.W.'s vagina. During the summer of
2002, defendant tried to force A.W. to touch his penis, but she
refused. After this summer, A.W. told a friend about the assaults,
but did not tell any family members. In addition to the sexual
assaults, A.W. testified defendant had provided alcohol to her on
occasion and regularly supplied her with marijuana.
The last incident of defendant sexually touching A.W. occurred
in May or June 2003 when she was fifteen-years-old and visited
defendant to attend her brother's high school graduation. While
A.W. stayed in a room with her cousin, defendant entered their room
and inserted his fingers into her vagina. A.W. realized if
defendant would sexually assault her, while others were present in
the room, he would not cease these behaviors.
A.W. was scheduled to visit with defendant again in the summer
of 2003. A.W. refused and told her mother she would not go because
of defendant's behavior. A.W.'s mother cancelled the trip and
called the police. On 10 June 2003, A.W. gave a statement to
Concord Police Detective Landers (Detective Landers) and relateddefendant's behaviors. A.W. told Detective Landers that defendant
had inserted his finger into her vagina once during the summer of
2000, and two or three times each week during visits in the summer
of 2001, Thanksgiving in 2001, and during the summer of 2002.
The State presented testimony from Dr. James Powell (Dr.
Powell), a clinical psychologist with a specialization in child
sex abuse cases. Dr. Powell met A.W. in June 2003. Marijuana was
found inside A.W.'s purse while she was on school grounds and she
was expelled. Dr. Powell learned about defendant's conduct during
interviews with A.W. He testified A.W.'s behaviors were consistent
with those of a sexually abused child.
The State also presented testimony from A.D., defendant's
former step-daughter, and S.M. A.D. testified that during 1995 and
1996, defendant entered her room at night, inserted his finger into
her vagina, and insisted she masturbate him to where he would
ejaculate. A.D. told her mother about defendant's behavior.
A.D.'s mother divorced defendant.
S.M. testified she visited defendant's son and A.W.'s older
brother in defendant's apartment when she was fifteen years old.
S.M. fell asleep on defendant's couch. Defendant awoke S.M., and
told her that she could not sleep on his couch, and led her into
his bedroom. S.M. fell asleep on defendant's bed, but awoke to
find defendant playing with her vagina. Defendant tried to force
S.M.'s legs open and touched her pubic hair. Defendant was unable
to pry S.M.'s legs open and ceased his assault. S.M. leftdefendant's bedroom and telephoned her mother, who came to
defendant's apartment and picket S.M. up.
A.W.'s mother corroborated A.W.'s testimony concerning the
time periods of her visits with defendant.
B. Defendant's Evidence
Defendant's sister testified that he had a reputation for
honesty and truthfulness. She stated A.W. and defendant had a good
relationship. A.W. had confided in her about alcohol use, but
never mentioned that defendant had inappropriately touched her.
S.M.'s mother, Audrey, testified that she had known defendant
all of her life. She stated defendant and A.W. had a good
Defendant testified and denied inserting his fingers into
A.W.'s vagina or masturbating in front of her. Defendant denied
providing A.W. with marijuana, and stated A.W. had used marijuana
since 1998 when A.W.'s mother found marijuana in A.W.'s clothes.
On 17 July 2003, the grand jury indicted defendant on one
count of first-degree sex offense, for acts occurring in June
through August 2000, and two counts of statutory sex offense, for
acts occurring in November 2001 and June through August 2002. The
jury found defendant guilty on all charges. The trial court
sentenced defendant to two consecutive active sentences between 192
minimum to 240 maximum months. Defendant appeals.
Defendant argues the trial court erred by: (1) allowing Dr.
Powell's testimony to bolster A.W.'s credibility; (2) allowingDetective Landers to testify as an expert to support A.W.'s
credibility; (3) allowing the State's motion to amend the
indictment by changing the alleged offense date and by denying his
motion to dismiss; and (4) violating his constitutional right to a
III. Dr. Powell's Testimony
 Defendant argues that the trial court erred in allowing
Dr. Powell to testify regarding A.W.'s credibility. We disagree.
Defendant failed to object to Dr. Powell's testimony, but
argues for plain error review on appeal. To be awarded a new trial
based on plain error, a defendant must show the error complained of
was so fundamental that a different result would have probably
occurred without the error. See State v. Parker, 350 N.C. 411,
442, 516 S.E.2d 106, 127 (1999), cert. denied, 528 U.S. 1084, 145
L. Ed. 2d 681 (2000). Our review of defendant's argument is
limited to plain error. N.C.R. App. P. 10(c)(4) (2006).
Our Supreme Court has set out the limits and restrictions on
expert testimony in child sexual abuse cases. State v. Stancil,
355 N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002). In a sexual
offense prosecution involving a child victim, the trial court
should not admit expert opinion that sexual abuse has in fact
occurred because, absent physical evidence supporting a diagnosis
of sexual abuse, such testimony is an impermissible opinion
regarding the victim's credibility. Id. at 266-67, 559 S.E.2d at
789. [A]n expert witness may testify, upon a proper foundation,
as to the profiles of sexually abused children and whether aparticular complainant has symptoms or characteristics consistent
therewith. Id. at 267, 559 S.E.2d at 789.
Dr. Powell testified that A.W.'s behavior, sense of trust, and
emotional problems were consistent with behaviors of other sexually
molested children. Dr. Powell did not state the sexual offenses
occurred and did not proffer an opinion regarding A.W.'s
credibility. In light of the other evidence presented and under
plain error review, defendant failed to show a different outcome
would have probably occurred, if Dr. Powell's testimony had not
been admitted. Defendant's assignment of plain error is overruled.
IV. Detective Landers
 Defendant argues that the trial court erred by allowing
Detective Landers to offer an expert opinion in support of A.W.'s
credibility. We disagree.
When a defendant objects, this Court must determine whether
the trial court abused its discretion by failing to sustain the
objection. State v. Frink, 158 N.C. App. 581, 589, 582 S.E.2d
617, 622 (2003). North Carolina Rule of Evidence 701 states:
[i]f the witness is not testifying as an
expert, his testimony in the form of opinions
or inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2005).
Although a lay witness is usually restricted
to facts within his knowledge, if by reason
of opportunities for observation he is in a
position to judge . . . the facts more
accurately than those who have not had such
opportunities, his testimony will not beexcluded on the ground that it is a mere
expression of opinion.
State v. Friend, 164 N.C. App. 430, 437, 596 S.E.2d 275, 281 (2004)
(quoting State v. Lindley, 286 N.C. 255, 257-58, 210 S.E.2d 207,
209 (1974)); see State v. O'Hanlan, 153 N.C. App. 546, 562-63, 570
S.E.2d 751, 761-62 (2002) (A detective's testimony was rationally
based on his perception and experience as a detective investigating
an assault, kidnapping and rape. His testimony was helpful to the
fact-finder in presenting a clear understanding of his
investigative process.), cert. denied, 358 N.C. 158, 593 S.E.2d 397
Defendant objected to Detective Landers's testimony as
training and coaching a sexual abuse victim. Detective Landers
[i]t's been my experience that if a child has
the same exact story every time, then the
story . . . has usually been coached. Most of
the time, through my experience, with sexual
assault victims and with children is there
will be something that [sic] will come up
later. The story will not every time be
exactly the same.
Detective Landers continued to testify about the procedure he uses
for questioning child witnesses, who complain of sexual abuse.
Detective Landers's testimony constitutes permissible lay
witness testimony. Detective Landers's nine years experience with
the Concord Police Department and four years in the special victims
unit dealing with rape, child molestation, and domestic violence
victims supports his testimony on the procedure he uses for
questioning child witnesses. Detective Landers did not offer anopinion on A.W.'s credibility as a witness. The trial court did
not err in admitting Detective Landers's testimony. Defendant's
assignment of error is overruled.
V. Amending the Indictment
 Defendant argues that the trial court erred in allowing
the State's motion to amend the indictment by changing the alleged
offense date and by denying his motion to dismiss. We disagree.
Under N.C. Gen. Stat. § 15A-923(e) (2005), a bill of
indictment may not be amended. [T]he term 'amendment' under
N.C.G.S. § 15A-923(e) [means] 'any change in the indictment which
would substantially alter the charge set forth in the indictment.'
State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)
(quoting State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558
An indictment is sufficient in form for all
intents and purposes if it expresses the
charge in a plain, intelligible and explicit
manner . . . . It will not be quashed by
reasons of any informality or refinement, if
in the bill or proceeding, sufficient matter
appears to enable the court to proceed to
State v. Coker, 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984)
(citations omitted). [W]hen time is not of the essence of the
offense charged, an indictment may not be quashed for failure to
allege the specific date on which the crime was committed. Price,
310 N.C. at 599, 313 S.E.2d at 559.
A change of the date of the offense is permitted if the change
does not substantially alter the offense as alleged in the
indictment. State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822,824 (1994); see State v. Parker, 146 N.C. App. 715, 718, 555 S.E.2d
609, 611 (2001) (if the proof was consistent with the elements
alleged in the indictment, an amendment in time does not amend the
indictment to violate N.C. Gen. Stat. § 15A-923(e)).
In State v. McGriff, the change of the dates in the indictment
in a statutory rape case to expand the time frame did not
substantially alter the charge set forth in the indictment. 151
N.C. App. 631, 637, 566 S.E.2d 776, 780 (2002). [A] judgment
should not be reversed when the indictment lists an incorrect date
or time 'if time was not of the essence' of the offense, and 'the
error or omission did not mislead the defendant to his prejudice.'
State v. Stewart, 353 N.C. 516, 517, 546 S.E.2d 568, 569 (2001)
(quoting State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306
A variance as to time, however, becomes material and of the
essence when it deprives a defendant of an opportunity to
adequately present his defense. Price, 310 N.C. at 599, 313 S.E.2d
at 559. We recently stated:
Even in child sexual abuse cases . . .
variance as to time . . . becomes material and
of the essence when it deprives a defendant of
an opportunity to adequately present his
defense . . . . The purpose of the rule as to
variance is to avoid surprise, and the
discrepancy must not be used to ensnare the
defendant or to deprive him of an opportunity
to present his defense . . . . 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 theState'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. Custis, 162 N.C. App. 715, 718, 591 S.E.2d 895, 898 (2004)
(internal quotations and citations omitted). In State v. Bowen,
this Court held an indictment amendment from SB to SR, when
SB was adopted by her grandparents after the indictment had been
issued, did not substantially alter the crime charged. 139 N.C.
App. 18, 27, 533 S.E.2d 248, 254 (2000)
The grand jury indicted defendant for statutory sex offenses
that allegedly occurred in June through August 2000, June through
August 2002, and November 2001. At trial, A.W. testified that
defendant committed a sexual offense upon her once between June and
August 2000, during Thanksgiving or Christmas 2001, and multiple
times during June through August 2002.
In addition, A.W., as the first witness, testified that during
the summer of 2001 defendant came into [her] room at night before
he'd go to work, and he'd do the same thing, put his fingers in my
private area. A.W. testified she told defendant to stop, the
assaults lasted no more than twenty minutes around four or five in
the morning either every night or every other night. A.W. also
testified that during the summer of 2001, defendant also
masturbated in her room to the point of ejaculation each time heentered her room at night for the sexual offense. To protect
herself, A.W. tried to sleep in her brother's room.
A.W. next testified that she visited defendant during
Thanksgiving or Christmas 2001 and defendant [came] into [her]
room at night and put his finger into [her] vagina. Defendant
presented evidence of a letter from A.W. that she was in Georgia
for Thanksgiving in November 2001, but failed to present any other
alibi or reverse alibi defense. During the State's recross-
examination of defendant, the trial court amended indictment 03 CRS
11009 to supplant the alleged date of November 2001 with June
through August 2001.
The amendment did not substantially alter the charges against
defendant. The State presented evidence of defendant's conduct
both during June through August 2001 and during Thanksgiving or
Christmas 2001. Time was not an essential element of the offense
charged, and A.W. testified all acts occurred while she was under
the age of fifteen. Defendant was provided sufficient notice to
present an alibi or reverse alibi defense. See State v. Joyce, 104
N.C. App. 558, 573, 410 S.E.2d 516, 525 (1991) (change made in the
indictment from knife to firearm did not alter the burden of
proof or constitute a substantial change prohibited by N.C.G.S. §
15A-923(e)), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992);
State v. Bailey, 97 N.C. App. 472, 475-76, 389 S.E.2d 131, 133
(1990) (change to the indictment which stated victim's name as
Pettress Cebron to correctly reflect the victim's name as Cebron
Pettress was not a prohibited amendment); State v. Haigler, 14N.C. App. 501, 505-06, 188 S.E.2d 586, 589-90 (change to the
indictment changing the description of the stolen property, an
essential element of the offense, from scrap copper to scrap
bronze was not a prohibited amendment), cert. denied, 281 N.C.
625, 190 S.E.2d 468 (1972). This assignment of error is overruled.
VI. Motion to Dismiss
 Defendant next contends that the trial court erred in
denying his motion to dismiss on indictment 03 CRS 11009 for
statutory sex offense.
A. Standard of Review
When ruling on a motion to dismiss, the trial
court must decide whether there is substantial
evidence (1) of each essential element of the
offense charged, or of a lesser offense
included therein, and (2) of defendant's being
the perpetrator of such offense. If so, the
motion is properly denied. Evidence is viewed
in the light most favorable to the State,
giving the State the benefit of all reasonable
State v. King, 178 N.C. App. 122, 130-31, 630 S.E.2d 719, 724
(2006) (internal citations and quotations omitted).
B. Statutory Sex Offense
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
N.C. Gen. Stat. § 14-27.7A(a) (2005). The State presented evidence
of sexual offense by defendant that occurred during the summer of
2001: Victim: [Defendant] came into my room at
night before he'd go to work, and he'd do the
same thing, put his fingers in my private
Prosecutor: Did it hurt you?
Prosecutor: Did you do anything to get him to
. . . .
Victim: I told him to stop, push his hands
Evidence in the record tends to show A.W. was thirteen years
old during the summer of 2001, and that defendant was at least six
years older than A.W. and was not lawfully married to her. The
State presented sufficient evidence of each element which tended to
show defendant committed sexual assaults upon A.W. to withstand his
motion to dismiss. Defendant's assignment of error is overruled.
VII. Unanimous Jury Verdict
 Defendant argues the trial court violated his
constitutional right to an unanimous jury. He asserts neither the
jury instructions nor the verdict sheets required the jury to
unanimously agree on the specific acts he committed to support each
verdict. We disagree.
The North Carolina Constitution and the North Carolina General
Statutes both require an unanimous verdict in a criminal jury
trial. See N.C. Const. Art. 1, Section 24; N.C. Gen. Stat. § 15A-
1237(b) (2005). Our Supreme Court recently reviewed and rejected
defendant's argument under similar facts. 'The risk of a
nonunanimous verdict does not arise in cases such as the one at barbecause the statute proscribing indecent liberties does not list,
as elements of the offense, discrete criminal activities in the
disjunctive.' State v. Lawrence, 360 N.C. 368, 375, 627 S.E.2d
609, 613 (2006) (quoting State v. Hartness, 326 N.C. 561, 564, 391
S.E.2d 177, 179 (1990)); see State v. Lawrence, 360 N.C. 393, 697
S.E.2d 615 (2006) (reversed this Court's decision for the
defendant's seven convictions for sexual offense per reasoning set
forth in State v. Lawrence, 360 N.C. 368, 675 S.E.2d 609). [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. Id. at 375, 675 S.E.2d at 613.
Under this same reasoning, our Supreme Court upheld a
defendant's five statutory rape convictions under N.C. Gen. Stat.
§ 14-27.2(a)(1) because of the victim's age and three indecent
liberties convictions. Lawrence, 360 N.C. at 376, 627 S.E.2d at
613; see N.C. Gen. Stat. § 14-27.2(a)(1) ([a] person is guilty of
rape in the first degree if the person engages in vaginal
intercourse . . . with a victim who is a child under the age of 13
years . . . .). The reasoning our Supreme Court set forth in
Lawrence may be imputed to sexual offense charges because: (1)
N.C. Gen. Stat. § 15-144.2(a) authorizes, for sexual offense, an
abbreviated form of indictment which omits allegations of the
particular elements that distinguish first-degree and second-degree
sexual offense. State v. Berkley, 56 N.C. App. 163, 167, 287S.E.2d 445, 449 (1982); and (2) if a defendant wishes additional
information in the nature of the specific sexual act with which
he stands charged, he may move for a bill of particulars. State v.
Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982).
The State presented evidence through A.W.'s testimony of
defendant's sexual offenses upon A.W. during the summers of 2000,
2001, 2002, during Thanksgiving or Christmas 2001, and May 2003.
A.W. testimony that she visited with defendant during these times
was corroborated by her mother. A.W. testified defendant inserted
his fingers into her vagina on multiple occasions. Testimony from
the State's six other witnesses corroborated A.W.'s testimony.
Each indictment stated that defendant committed a sexual offense
with A.W. Under the reasoning in State v. Lawrence, this
assignment of error is overruled. Lawrence, 360 N.C. at 375, 675
S.E.2d at 613.
The trial court did not err in admitting Dr. Powell's and
Detective Landers's testimony. Neither witnesses' testimony was
offered solely to bolster A.W.'s credibility. The trial court did
not err in changing the alleged offense date in the indictment.
A.W. specifically testified to acts which occurred within the times
alleged, time was not a specific element of the offense charged,
and defendant presented no alibi defense except A.W.'s letter that
she was in Georgia during Thanksgiving 2001.
The trial court did not violate defendant's constitutional and
statutory right to a unanimous verdict. The State presentedsufficient evidence to support the elements of each crime charged.
Defendant received a fair trial, free from prejudicial errors he
preserved, assigned, and argued.
Judges WYNN and HUDSON concur.
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