STATE OF NORTH CAROLINA
No. 03 CRS 54718; 54761
JERRY DAVID LOVE,
Jeffrey Evan Noecker, for defendant.
Roy Cooper, Attorney General, by Sonya M. Calloway-Durham, Assistant Attorney General, for the State.
Defendant Jerry David Love was convicted by a jury of first- degree sex offense with a child and indecent liberties with a child. He was sentenced to 240 to 297 months in the custody of the Department of Corrections. It is from these convictions that defendant appeals.
At the time of the crime, defendant lived with his wife, Mary Blue, and three children. One of the children, C.L., is the child of Ms. Blue and defendant. The other two children, including the victim, J.S., were fathered by other men. J.S. was thirteen years old at the time of the incident. Ms. Blue testified that she went to bed early on the evening of 28 November 2003 because she had a cold. She went downstairs at about 12:30 a.m. to find some cough medicine. When she opened the door to the living room, she saw J.S. sitting on defendant's lap on the couch, both covered by a blanket. When they saw her, they both jumped. Ms. Blue thought they both looked very, very suspicious about something, so she followed her daughter to the bathroom to ask what had happened. J.S. told her that nothing was going on, but Ms. Blue saw blood on J.S.'s shorts. Ms. Blue then confronted defendant, who also denied that anything had happened between him and his step-daughter. Ms. Blue then saw blood on defendant's fingers. She assumed that he had been doing something to [her] daughter because of the blood on J.S.'s shorts, and demanded that defendant show her his private area. Defendant obliged and Ms. Blue saw pre-ejaculate on defendant's penis. Ms. Blue then attempted to call the police, but defendant stopped her, allegedly saying, Don't call the police; I'll just leave. You won't ever have to hear from me again. Just let me leave. Ms. Blue refused to allow defendant to leave, telling him, No, you're a child molester and you're going to pay for what you've done to my daughter. Defendant than grabbed the phone, not allowing Ms. Blue to call the police. Ultimately, Ms. Blue persuaded a neighbor to make the call. The deputy arrived and interviewed defendant. Ms. Blue testified that the deputy stated 'Did you do it?' and [defendant] said, 'Yeah, man, I had my fingers in her.' J.S. was taken to the emergency room, where she was examined by medical staff and a rape kit was completed. The emergency department nurse testified that J.S. told her that she was there because she . . . and her stepfather were watching TV and he put his fingers in her vagina and her mother came into the room and caught them and that he had been doing it before. The results of the rape kit revealed that J.S.'s panties tested positive for spermatozoa consistent with pre-ejaculate. DNA taken from J.S.'s panties was consistent with defendant's DNA profile.
J.S.'s testimony revealed that defendant had regular sexual contact with her prior to 28 November 2003. During that time, defendant wrote her letters. When asked about their content, J.S. stated, It would just be like he loved me and he wanted me to leave mom and go with him and [C.L.]. Just talking. During a search of the home, police found a letter between J.S.'s mattress and box spring, written by J.S. to defendant, which read, The reason why I'm acting this way is because I don't want to get too close to you because I don't want you to do the same thing you did when Mom and Harley were in Chapel Hill, touching me places where you aren't supposed to. Police had not been told of the existence or location of the letter before finding it.
Defendant first argues that the trial court erred by entering judgment on a fatally flawed indictment. By superceding indictment, defendant was charged with Statutory Sex Offense of a Person who is 13, 14 or 15 years old (In Violation of NCGS 14- 27.7). The superceding indictment further states that defendantunlawfully, willfully, and feloniously did engage in a sex offense with [J.S.], 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 . . . .
Defendant argues that the indictment was fatally flawed because the jury returned a verdict convicting defendant of a violation of N.C. Gen. Stat. § 14-27.7A, rather than N.C. Gen. Stat. § 14-27.7. Defendant is correct that the two statutes state two different crimes. Section 14-27.7 states, in relevant part, that 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 . . . is guilty of a Class E felony. N.C. Gen. Stat. § 14-27.7(a) (2005). Section 14-27.7A, on the other hand, 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 . . . . N.C. Gen. Stat. § 14-27.7A(a) (2005).
General Statutes section 15A-924(a) states that a criminal pleading must contain:
(5) A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation. . . .
(6) For each count a citation of any applicable statute, rule, regulation,ordinance, or other provision of law alleged therein to have been violated. Error in the citation or its omission is not ground for dismissal of the charges or for reversal of a conviction.
N.C. Gen. Stat. § 15A-924(a) (2005) (emphasis added).
In this case, the language of the superceding indictment precisely mirrors the language of N.C. Gen. Stat. § 14-27.7A, the crime that the jury convicted defendant of violating. Although the superceding indictment did contain an error in the citation, this error is not ground for reversal of the conviction because the superceding indictment asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation as required by N.C. Gen. Stat. § 15A-924(a). Although we have vacated convictions in which there was an error in the citation and the indictment did not assert facts supporting every element of the offense, this is not such a case. See, e.g., State v. Miller, 159 N.C. App. 608, 614, 583 S.E.2d 620, 623 (2003) (vacating a conviction where the indictments cite one statute, and defendant was tried, convicted, and sentenced under another statute, and the indictments allege facts sufficient to satisfy some elements contained in each of these statutes to the exclusion of the other, but these averments are insufficient to satisfy all of the elements contained in either statute). Accordingly, we overrule this assignment of error.
Defendant next argues that the trial court erred by permitting the prosecutor, over objection, to ask J.S., Are you telling thejury the truth today?, and then permitting her to answer in the affirmative. We disagree, finding that defendant failed to preserve this issue for appellate review.
A defendant waives any possible objection to testimony by failing to object to this testimony when it is first admitted. State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000). Prior to the question at issue, the prosecutor asked J.S. multiple times if her testimony was truthful. For example, J.S. testified that she mistakenly wrote 2002 on her statement to the police, instead of 2003. Without objection, the prosecutor asked J.S. if she was telling the truth when she wrote her statement, and J.S. responded that she was telling the truth. Without objection, the prosecutor asked J.S. if she was telling the truth when she spoke to someone at the Carousel Center in Wilmington. J.S. again answered in the affirmative.
By allowing J.S. to testify as to her truthfulness without objection, defendant waived the right to object during J.S.'s later testimony. Defendant has further waived his opportunity for plain error review of this issue. Rule 10(c)(4) of the North Carolina Rules of Appellate Procedure requires that an assignment of error be 'specifically and distinctly contended to amount to plain error.' State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094 (2005) (quoting N.C.R. App. P. 10(c)(4)). Because defendant has not argued plain error, we cannot consider his argument and it is dismissed. In his third argument, defendant contends that the trial court improperly limited his cross-examination of a witness concerning potential bias against defendant. On cross-examination, Ms. Blue testified that she had left defendant twice during their marriage, both times taking the two older children, and unsuccessfully attempting to take C.L. Defense counsel then attempted to make an offer of proof as to Ms. Blue's prejudice against defendant and her motive for doing this now. At trial, defense counsel reasoned that testifying against defendant was the only way that Ms. Blue could take C.L. from defendant. After hearing defendant's offer of proof, the trial judge sustained the State's objection to this line of questioning.
Defendant urges this Court to reverse because a party may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him or his cause, or that the witness is interested adversely to him in the outcome of the litigation. State v. Hart, 239 N.C. 709, 711, 80 S.E.2d 901, 902 (1954) (citations omitted). Our Supreme Court has held that
The right of cross-examination is very broad. However, the right is not without limitation. Trial courts may limit cross-examination to prohibit inquiry into irrelevant or incompetent matter or matters of only tenuous relevance, or to ban repetitious or argumentative questions. The legitimate bounds of cross-examination are largely within the discretion of the trial judge.
State v. Wilson, 322 N.C. 117, 135, 367 S.E.2d 589, 600 (1988) (citations omitted). Abuse of discretion results where thecourt's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Defendant makes no argument or allegation that the trial judge's ruling was unsupported by reason or arbitrary. (See footnote 1) After reviewing the transcript, we hold that the trial court did not abuse its discretion.
Finally, defendant argues that the trial court erred by overruling his objection and denying his motion to strike the prosecutor's statement in closing argument in which she asked the jury to [m]ake our community here in Columbus County safer. To put this statement in context, the prosecutor preceded the statement to which defendant objects with the following:
Look at all the evidence, members of the jury, and ask yourself, is there a reasonable explanation for it. It all points to one thing when you look at all the evidence together. It points to [defendant]'s guilt.
Reasonable doubt is also not doubt that is created by the ingenuity of an attorney. The best way to get a defendant found not guiltyis to create a smoke screen. He's wanting you to think that Mary [Blue] is that smoke screen and this is all her fault. That does not explain the medical injuries to [J.S.] Does not explain the confession. Use your common sense, members of the jury. Hold [defendant] responsible. Make our community here in Columbus County safer.
General Statutes section 15A-1230 mandates that
During a closing argument to the jury an attorney may not . . . express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.
N.C. Gen. Stat. § 15A-1230(a) (2005). However, [a]rgument of counsel must be left largely to the control and discretion of the trial judge, and counsel must be allowed wide latitude in their arguments which are warranted by the evidence and are not calculated to mislead or prejudice the jury. State v. Riddle, 311 N.C. 734, 738, 319 S.E.2d 250, 253 (1984). For example, our Supreme Court has held that it was not error for a prosecutor to use the following opinions as premises for his argument because the opinions were widely held: Transylvania County should be decent, safe and law-abiding . . . drug abuse is bad . . . young people should be warned about drug abuse, and . . . a person's home is his castle . . . . State v. Rogers, 323 N.C. 658, 663, 374 S.E.2d 852, 856 (1989). The prosecutor's opinion, that Columbus County would be safer with one less sex offender, falls into the categoryof widely held opinions. The trial court did not err in allowing the comment, and defendant's assignment of error is overruled.
Accordingly, we hold that defendant received a trial free from error.
Judges TYSON and GEER concur.
Report per 30(e).
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