NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
STATE OF NORTH CAROLINA
RUSSELL STEVE VANBUREN
Appeal by defendant from judgments entered 9 November 2005 by
Judge Henry W. Hight, Jr. in Warren County Superior Court. Heard
in the Court of Appeals 19 February 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General R. Kirk Randleman, for the State.
Kevin P. Bradley for defendant-appellant.
Russell Steve VanBuren (defendant), a forty-seven-year-old
man at the time he was charged, was convicted of: (1) statutory
sexual offense against a thirteen-year-old for anal intercourse on
or about 2 July 2004; (2) indecent liberties with a child on or
about 5 July 2004; (3) sexual offense by a parent on or about 17
July 2004; and (4) statutory sexual offense against a thirteen year
old for fellatio on or about 19 September 2004. The trial court
sentenced defendant to consecutive terms of: (1) 288-355 months
imprisonment for each conviction of sexual offense against a
thirteen year-old; (2) twenty-nine to forty-four months
imprisonment for sexual offense by a parent; and (3) twenty-one to
twenty-six months imprisonment for indecent liberties with a child. Defendant appeals from his convictions and sentencing. After
careful consideration, we find no error in part and remand for
Defendant presents the following issues on appeal: (1)
whether the trial court erred by not granting defendant's motion to
dismiss after the filing of a bill of particulars which defendant
claims altered the indicted charges; (2) whether the trial court
erred by not requiring the best evidence of a witness's testimony;
(3) whether the trial court erred by not allowing the disclosure of
Department of Social Services (DSS) records; and (4) whether the
trial court abused its discretion by taking judicial notice of a
prior conviction when determining sentencing.
Defendant was indicted on 29 November 2004 on the following
charges: (1) statutory sexual offense of a person who is thirteen
to fifteen years old, for which the alleged date was 19 September
2004; (2) statutory sexual offense of a person who is thirteen to
fifteen years old, for which the alleged date was 20 June 2004 to
20 August 2004; (3) indecent liberties with a child, for which the
alleged date was 20 June 2004 to 20 August 2004; and (4) sex
offense of one in a parental role, for which the alleged date was
20 June 2004.
On 17 August 2005, defendant filed a motion for a bill of
particulars. In that motion defendant, in essence, argued that the
indictments were overly broad in that they did not allege any
specific conduct nor provide defendant with a sufficiently certain
time frame in which the alleged incidents occurred. The State'sresponse set out the time and date, place, and manner in which
defendant was alleged to have committed the crimes charged.
At trial, the alleged thirteen-year-old male victim, C.B.,
testified to four incidents. The first occurred on 2 July 2004 in
a horse trailer at C.B.'s mother's house. C.B. testified that
defendant sodomized him in the trailer and then did so again later
that night in the house. C.B. also testified that defendant made
him perform fellatio on defendant later that night.
C.B. testified that the second incident occurred while his
mother was outside the home. C.B. stated that defendant sodomized
him in the bathroom and again in the bedroom. The State alleges
this incident occurred on or about 5 July 2004. The third
incident, according to C.B., occurred when defendant took C.B. back
to the horse trailer and sodomized him again. The State alleges
this incident occurred on or about 17 July 2004. Finally, C.B.
testified that defendant forced him to perform fellatio on
defendant on 19 September 2004 while they were in defendant's Ford
At trial, C.B.'s guidance counselor testified. In substance,
she corroborated much of C.B.'s testimony regarding the alleged
incidents. During her testimony, defense counsel objected to her
testimony on the grounds that a note C.B. had written in the
presence of the guidance counselor was the best evidence of the
alleged incidents and not her testimony. This objection was
overruled. During sentencing, the trial judge took judicial notice of
defendant's alleged past conviction. Defendant argues that there
was no evidence of the conviction other than a worksheet handed up
by the State. The trial court sentenced defendant as a Class B1,
Level II offender for both statutory sexual offense convictions,
Class F, Level III offender for the indecent liberties conviction,
and Class E, Level II offender for the sexual offense by a parent
The general rule is that, a bill of indictment may not be
amended in a manner that substantially alters the charged offense.
State v. Silas
, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006). In
deciding whether an amendment is a substantial alteration, we must
consider whether the indictment enables the accused to prepare for
. In order to prevail, defendant must show a fatal
variance between the offense charged and the proof as to . . . an
essential element of the offense. State v. Pickens
, 346 N.C. 628,
646, 488 S.E.2d 162, 172 (1997) (citation omitted). Finally, we
point out that a bill of particulars' primary function is to
inform defendant of specific occurrences intended to be
investigated at trial and to limit the course of the evidence to a
particular scope of inquiry. State v. Young
, 312 N.C. 669, 676,
325 S.E.2d 181, 186 (1985).
In the instant case, defendant argues that the bill of
particulars filed by the State did not inform him of the specific
occurrences intended to be investigated at trial. We disagree. Specifically, defendant asserts that three of the four
indictments charged against him did not provide him with adequate
notice to defend those charges. The bill of particulars gave
specific dates, the approximate time in which the acts occurred,
the location of the acts, and the manner in which defendant
committed the alleged crimes. We address each indictment in turn.
Defendant was indicted under N.C. Gen. Stat. § 14-27.7A, which
states that 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.
N.C. Gen. Stat. § 14-27.7A(a) (2005). Sexual act includes, inter
, fellatio and anal intercourse. N.C. Gen. Stat. § 14-27.1(4)
In order for an indictment for a sex offense to be proper,
[i]t is not required . . . that the indictments for sex offenses
allege every matter required to be proved at trial[.] State v.
, ___ N.C. App. ___, ___, 634 S.E.2d 258, 263 (2006). All
that is required, for this particular crime, is that the indictment
The jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant named above unlawfully, willfully
and feloniously did engage in a sexual act
with [the victim], 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
. (citation omitted). As in Bradley
, the State in the instant
case used the exact language found above to indict defendant.
Thus, the indictment was proper and the trial court did not error
by denying defendant's motion to dismiss.
Defendant next assigns error to the State's indictment
regarding the crime of taking indecent liberties with a child.
N.C. Gen. Stat. § 14-202.1(a)(1) (2005) states that:
(a) A person is guilty of taking
indecent liberties with children if, being 16
years of age or more and at least five years
older than the child in question, he . . . :
(1) Willfully takes or attempts to take
any immoral, improper, or indecent
liberties with any child of either
sex under the age of 16 years for
the purpose of arousing or
gratifying sexual desire[.]
. Under this statute, indictments are proper so long as they use
the language of the statute and need not set out the evidentiary
basis of the charge. State v. Miller
, 137 N.C. App. 450, 457, 528
S.E.2d 626, 630 (2000). In the instant case, all the elements of
the statute are set out in the indictment: (1) defendant was over
sixteen years of age at the time and at least five years older than
that child; and (2) defendant willfully did take and attempt to
take immoral, improper, and indecent liberties with C.B. for the
purpose of arousing and gratifying sexual desire. Because the
statutory elements are laid out in the indictment the trial court
did not err in denying defendant's motion to dismiss.
Finally, defendant argues that his indictment for committing
a sex offense by one in a parental role was insufficient. UnderN.C. Gen. Stat. § 14-27.7(a), a person will be guilty of a Class E
felony where, a defendant who has assumed the position of a parent
in the home of a minor victim engages in vaginal intercourse or a
sexual act with a victim who is a minor residing in the home[.]
N.C. Gen. Stat § 14-27.7(a) (2005). As stated above, a sexual act
includes fellatio and anal intercourse. N.C. Gen. Stat. § 14-
27.1(4). Again, all that is required is for the language of the
indictment to match the language of the statute. State v. Massey
174 N.C. App. 216, 221, 621 S.E.2d 633, 637 (2005).
The indictment here matches the statutory language. Thus, we
find no error. The indictment states that the defendant: (1) had
assumed a parental role; (2) engaged in a sexual act; and (3) with
a child under eighteen years old. In summation, we reject
defendant's contention that the additional information provided by
the State for the three challenged indictments failed to put
defendant on notice. This is especially true in sex offense cases
where only short form indictments are required. Here, the State
exceeded what was required by law.
Defendant next argues that the trial court erred by allowing
a witness to testify over a best evidence rule objection. We
This Court reviews evidentiary rulings for abuse of
discretion. State v. Boston
, 165 N.C. App. 214, 218, 598 S.E.2d
163, 166 (2004). That is, an appellant must show that the ruling
was 'manifestly unsupported by reason and could not have been theresult of a reasoned decision.' State v. McCree
, 160 N.C. App.
19, 28, 584 S.E.2d 348, 354 (2003) (quoting State v. Brown
N.C. 193, 209, 513 S.E.2d 57, 67 (1999)).
The best evidence rule states that [t]o prove the content of
a writing . . . the original writing . . . is required, except as
otherwise provided in these rules or by statute. N.C. Gen. Stat
§ 8C-1, Rule 1002 (2005). Only when the content of the writing is
in question is the best evidence rule implicated. Hedgecock
Builders Supply Co. v. White
, 92 N.C. App. 535, 539, 375 S.E.2d
164, 168 (1989). Under the rule, a document is considered the
'best evidence' of its contents; secondary evidence of the contents
will generally be excluded if the document itself can be produced.
The crux of defendant's argument in this case is that C.B.'s
guidance counselor testified about a note that C.B. had written to
her describing defendant's alleged conduct and that this note, not
the witness's recollection of the note, was the best evidence of
its content. After a voir dire
examination of the counselor, the
trial judge informed the witness and the parties that:
The witness may testify when the jury
comes out as to  what [C.B.] told her and
 what he did while he was in her presence,
but what she read from a statement [created by
C.B.] when she was not present when it was
created, absent the original, does not come
This is an accurate order as to the best evidence rule and the
witness did not overstep these bounds while testifying to the jury.
On direct, the witness stated that, [C.B.] said
that his dad . . .made him suck his d_-k and f---ed him in the a--. (Emphasis
added.) She went on testify that, [C.B.] said
that . . .
[defendant] called him sissy . . . . [C.B.] said
that it happened
usually, when Mum was at work, in his bedroom and one time in a
field in a Bronco. (Emphasis added.) Finally, the witness
testified on redirect that [C.B.] said
that [defendant] tied me up
like a calf and he f----d me . . . 10 to 20 times. (Emphasis
added.) Nowhere did the witness testify as to what C.B. had
written in the note. The only time in which the witness referenced
the contents of the note occurred outside the presence of the jury
during voir dire
. Thus, we cannot say that the trial court abused
its discretion in admitting the testimony.
Defendant argues the trial court erred in not providing him
complete access to the victim's juvenile records. We disagree.
Under Pennsylvania v. Ritchie
, a defendant may request the trial
court to conduct an in camera
review of juvenile records created
during the investigation of a victim's compliant. State v.
, 168 N.C. App. 263, 279, 608 S.E.2d 774, 785 (2005)
(citing Pennsylvania v. Ritchie
, 480 U.S. 39, 58, 94 L. Ed. 2d 40,
58 (1987)). In order to protect a defendant's due process rights,
the trial court can grant access to files that are material to the
defendant's guilt or punishment. Id
. If the judge, after the in
review, denies access to the defendant the files should be
sealed and placed in the record for the appellate review. Id
. On appeal, the appellate court must examine the sealed records
to determine whether they contain information that is favorable
and material to an accused's guilt or punishment. Id
. at 280, 608
S.E.2d at 785. There are two types of favorable evidence: that
which tends to exculpate the accused, and that which adversely
affects the credibility of the government's witness. Id
will only be considered material if there 'is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
'reasonable probability' is a probability sufficient to undermine
confidence in the outcome.['] Id
. (citations omitted).
Here, the trial court reviewed the victim's juvenile records
upon defendant's motion and determined that there was nothing in
the DSS records discoverable by defendant. Under Ritchie
, this Court has thoroughly reviewed the juvenile files for
C.B. provided in the record. The files included medical
examination reports, DSS progress updates, evaluations by social
workers, and summarized statements from C.B.'s mother and C.B.
We conclude that the trial court properly withheld the files
from defendant. They do not contain information material to
defendant's case and no reasonable probability exists that 'the
result of the proceeding would have been different.' United
States v. Bagley
, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494 (1985)
(citation omitted). The documentation further corroborated the
facts of the case. This assignment of error is overruled.
Defendant's final assignment of error states that the trial
court erred in sentencing defendant as a previously convicted
felon. Defendant argues that the State did not prove, nor did
defendant stipulate to, a prior conviction pursuant to the North
Carolina sentencing statutes. We agree. Under N.C. Gen. Stat. §
15A-1340.14 (2005), each of a felony offender's prior convictions
must be proven to determine the offender's prior record level.
Additionally, N.C. Gen. Stat. § 15A-1340.14 provides that the State
bears this burden of proving any prior convictions by a
preponderance of the evidence. Finally, N.C. Gen. Stat. §
15A-1340.14(f) lists several methods the State may use to prove
(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the
Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be
In the instant case, there was no stipulation as to the
alleged prior conviction by the parties. Nor was there a copy or
original made available under the second or third methods of
establishing prior convictions. Instead, the trial court took
judicial notice of a past conviction after reviewing a prior
record worksheet prepared by the State and declined to have theclerk get the file. This Court has stated that [t]here is no
question that a worksheet, prepared and submitted by the State,
purporting to list a defendant's prior convictions is, without
more, insufficient to satisfy the State's burden in establishing
proof of prior convictions. State v. Eubanks
, 151 N.C. App. 499,
505, 565 S.E.2d 738, 742 (2002).
In State v. Bartley
, 156 N.C. App. 490, 577 S.E.2d 319 (2003),
this Court remanded for resentencing because [a]n unsupported
statement by the State that an offender has a certain amount of
points, and thus is placed in a corresponding record level, even
, does not rise to the level sufficient to meet the
catchall provision found in N.C.G.S. § 15A-1340.14(f)(4). Id
502, 577 S.E.2d at 326 (emphasis added). In Bartley
prosecutor stated to the judge that the defendant had eleven points
and was thus a level IV offender. Id
. There, the State submitted
no records of conviction nor any records from the agencies listed
in the statutory text and there was no evidence that defense
counsel stipulated to the prior conviction. Id
Similarly, in this case, the prosecutor filled out a worksheet
stating that defendant had a prior conviction but no other
supporting evidence. Defense counsel did not contest the prior
conviction but also refused to stipulate to it. The judge declined
to have a copy or original of the past conviction brought forward
pursuant to N.C. Gen. Stat. § 15A-1340.14(f)(2). As such, there
was no file or other court record from which the judge could take
judicial notice nor do we find any such evidence of a priorconviction in the record. Therefore, we hold that the State failed
to establish by a preponderance of the evidence that defendant had
committed a prior felony and we remand for resentencing.
The State argues that defendant failed to object to the prior
conviction and this failure is therefore tantamount to a
stipulation. The State relies on State v. Boyce
, 175 N.C. App.
663, 668, 625 S.E.2d 553, 557 (2006), for this proposition. In
that case, this Court held that defense counsel could implicitly
stipulate to a prior record worksheet. Id
. The State's argument
governs this case, however, is misplaced. In that case,
we found that defense counsel had stipulated to the prior
convictions because he did not object to the trial court's
statement that he had reviewed the prior record level worksheet and
the judge's summation of the point level is tantamount to an
admission or stipulation that defendant had the prior convictions
asserted by the State. Id
The facts of Boyce
are distinguishable from the instant case.
Here, defendant's trial counsel expressly stated that [w]e will
not stipulate to a finding of a prior conviction, and as such,
could not be said to have stipulated to it by failing to object.
The fact that defense counsel stated that he would not contest
[the prior conviction] does not place this case under the purview
. As stated above, even when uncontested, a court cannot
rely on unsupported statements by the State regarding prior
convictions. Further, we note that under N.C. Gen. Stat. §
15A-1340.14 the State, not the defense, has the burden of proof asto this issue. The State's reliance on Boyce
is also misplaced
because defense counsel in that case conceded that the defendant
had once been on probation which can also reasonably be construed
as an admission by defendant that he had been convicted of at least
one of the charges listed on the worksheet. Boyce
, 175 N.C. App.
at 668, 625 S.E.2d at 557. Since in the instant case there was no
such admission, we do not find Boyce
persuasive. Therefore, we
remand for resentencing.
In summary, we hold that the indictments brought against
defendant were proper. The trial court did not abuse its
discretion in admitting the testimony of C.B.'s guidance counselor
and properly withheld the DSS files from defendant. We do find
error, however, in the sentencing of defendant. Therefore, we
remand for resentencing.
No error in part; remanded for resentencing.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).
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