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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-768


Filed:  5 June 2007

                                    Warren County
v .                                 Nos. 04CRS002001-02,
                                        050909, 050959

    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.

    HUNTER, Judge.

    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 resentencing.
    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 Bronco.
    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 conviction.


    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 trial. Id. 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 [1] engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and [2] 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 alia, fellatio and anal intercourse. N.C. Gen. Stat. § 14-27.1(4) (2005).
    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. Bradley, ___ N.C. App. ___, ___, 634 S.E.2d 258, 263 (2006). All that is required, for this particular crime, is that the indictment state:
        “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 the victim.”
Id. (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[.]

Id. 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 disagree.
    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, 350 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.” Id.
    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 [1] what [C.B.] told her and [2] 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 in.

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. Thaggard, 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 camera 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. Evidence 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 and Thaggard, 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. himself.
    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 prior convictions:
        (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 reliable.

    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 if uncontested, does not rise to the level sufficient to meet the catchall provision found in N.C.G.S. § 15A-1340.14(f)(4).” Id. at 502, 577 S.E.2d at 326 (emphasis added). In Bartley, the 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 that Boyce 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 of Boyce. 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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