STATE OF NORTH CAROLINA
v. Union County
Nos. 03 CRS 51227-37
CAROL NASH STURDIVANT
Attorney General Roy Cooper, by Assistant Attorney General R.
Kirk Randleman, for the State.
David Childers for defendant-appellant.
STEELMAN, Judge.
On 31 March 2003, defendant, Carol Nash Sturdivant, was
indicted for several sexual offenses involving E.A.C., a minor.
The five indictments charged defendant with: (1) first-degree
statutory sexual offense from 1 August 2001 through 30 May 2002;
(2) three counts of indecent liberties from 1 August 2001 through
30 May
2002; and (3) first-degree statutory rape from 1 August 2001
through 30 May 2002. Prior to trial, defendant moved for a bill of
particulars. Specifically, defendant requested that the State
provide him with a statement detailing the time and location of
each of the alleged crimes and any act or actions which constituted
the crimes charged. Defendant asserted he was unable to adequately
prepare or conduct his defense without this information. The trialcourt denied the motion, citing the age of the victim and the
nature of the allegations.
The cases were tried at the 7 March
2005 Criminal Session of Union County Superior Court.
Defendant
was convicted of first-degree sexual offense, three counts of
taking indecent liberties with a child, and attempted statutory
rape. The trial court sentenced defendant from the mitigated range
to consecutive terms of 230 to 285 and 151 to 191
months
imprisonment.
Defendant appeals.
In defendant's sole argument on appeal, he contends
the trial
court abused its discretion by denying his motion for bill of
particulars.
After careful review of the record, briefs and
contentions of the parties, we find no error.
It is within the trial court's discretion whether to grant a
motion for a bill of particulars and we will not reverse its denial
of the motion absent a showing of an abuse of discretion. State v.
Jarrell, 133 N.C. App. 264, 270, 515 S.E.2d 247, 252 (1999)
.
Moreover, “[a]n appellate court should reverse the denial of a
motion for a bill of particulars only if it clearly appears that
the 'lack of timely access to the requested information
significantly impaired defendant's preparation and conduct of his
case.'” State v. Hines, 122 N.C. App. 545, 551, 471 S.E.2d 109,
113 (1996)(quoting
State v. Easterling, 300 N.C. 594, 601, 268
S.E.2d 800, 805 (1980)).
In the instant case, defendant was charged with sexual
offenses involving a child under the age of thirteen. Defendant
complains that the failure of the State to provide detailsregarding the date, time, and location of the offense, as well as
the acts that constituted the alleged offense, put him in the
unreasonable position of having to wait until the trial was in
progress before learning specifically when, where, and what he was
accused of doing. He further argued his time for locating and
producing alibi witnesses was significantly lessened. However,
this Court has noted:
Courts are lenient in child sexual abuse cases
where there are differences between the dates
alleged in the indictment and those proven at
trial. Our Supreme Court has stated 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.” Leniency has been allowed in cases
involving older children as well. “Unless the
defendant demonstrates that he was deprived of
his defense because of lack of specificity,
this policy of leniency governs.”
State v. McGriff, 151 N.C. App. 631, 635, 556 S.E.2d 776, 779
(2002)(internal citations omitted).
In State v. Blackmon, this Court rejected the defendant's
argument that the denial of his motion for a bill of particulars
denied him an opportunity to raise an alibi defense. 130 N.C. App.
692, 696-97, 507 S.E.2d 42, 45 (1998).
In Blackmon, the
indictments alleged that the offenses occurred between 1 January
and 12 September 1994. Similarly, in the instant case, the
indictments alleged the offenses occurred during a period of time
spanning from 1 August 2001 through 30 May 2002. Moreover,
defendant failed to offer any alibi defense whatsoever, either tothe dates alleged in the indictments, or in response to the
evidence presented at trial. He has also failed to identify with
any specificity any portion of his defense that was harmed or
hindered by the failure of the State to provide specific dates.
See McGriff, 151 N.C. App. at 637, 556 S.E.2d at 780
(“Time
variances do not require dismissal if they do not prejudice a
defendant's opportunity to present an adequate defense.
'[A]
defendant suffers no prejudice . . . when defendant presents alibi
evidence relating to neither the date charged nor the date shown by
the State's evidence.'”
)(citations omitted).
Finally, we note that defendant received open file discovery
in this case. Thus, he was fully appraised of the specific
occurrences to be investigated by the State so as not to have been
“surprised” by the evidence introduced by the State at trial.
Accord Blackmon, 130 N.C. App. at 701, 507 S.E.2d at 48. As such,
defendant has failed to show how he did not have timely access to
information regarding location and the alleged acts to have
occurred. Accordingly, we conclude the trial court did not abuse
its discretion by denying defendant's motion for a bill of
particulars.
Defendant does not argue his remaining assignments of error
contained in the record on appeal. Pursuant to N.C. R. App. P.
28(b)(6), they are deemed abandoned
NO ERROR.
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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