State v. Grange, No. COA09-605 (N.C. App. 4/6/2010)
| Decision Date | 06 April 2010 |
| Docket Number | No. COA09-605.,COA09-605. |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA, v. ERIC GRANGE. |
William D. Spence, for defendant-appellant.
Eric Grange ("defendant") appeals from judgments entered upon a jury verdict finding him guilty of two counts of first degree sex offense with a child and eight counts of indecent liberties with a child. We find no error.
"Aileen," "Bailey," "Carlie," and "Dorothy"1 (collectively "the victims") were students in a class at Montessori Community School ("MCS") in Durham County, North Carolina. The first second, and third graders were combined ("the class"). Bailey and Dorothy were in the class during the 2005-06 school year, and Aileen and Carlie were in the class for both the 2004-05 and 2005-06 school years. Karen Richardson ("Ms. Richardson") taught the class for both years. In January 2005, MCS hired defendant as a co-teacher in Ms. Richardson's class. At the time defendant was hired, he was 41 years old and each of the victims was less than 12 years old.
The classroom had a stage area with steps, chairs and computers and a room called the Silent Room or Quiet Room ("Silent Room") for students to read and work quietly. In addition, the classroom had two bathrooms, one for each gender and was equipped with a flashlight. Inside the Silent Room were bean bags, a rug, a desk, and chairs.
Aileen was a student in defendant's class for her first grade year, 2004-05, and her second grade year, 2005-06. On more than one occasion, while Aileen was in defendant's class, he spat on his hand and rubbed the inside and outside of Aileen's vagina with his hand, causing Aileen to experience pain. These events occurred in the Silent Room. On one occasion, during Aileen's second grade year, "Dale," a male classmate, walked by the Silent Room and saw defendant putting his hand in Aileen's underpants. Additionally, on at least four occasions, defendant rubbed Aileen's vagina on the outside of her clothes as Aileen sat in defendant's lap in a chair at a long table in the language/grammar area of the classroom. Defendant told Aileen that her parents did not love her and she should not trust them, so she should not tell them about defendant's actions. Subsequently, Aileen was treated by Nancy Berson, a licensed clinical social worker, and Dr. Heather Norman Scott, a psychologist.
Bailey was a first grade student in defendant's class during the 2005-06 school year. While Bailey was in defendant's class, on more than one occasion defendant followed Bailey into the girls' bathroom in the classroom and shined the flashlight on his exposed penis. Defendant made Bailey lie on the bathroom floor and inserted his finger into her vagina. These actions occurred at least five times, including multiple times before Bailey had a chance to pull up her pants after using the bathroom. Defendant's actions caused Bailey to experience pain, and defendant threatened to hurt Bailey and her family if she told anyone. Bailey was subsequently treated by Ann Waldon, a clinical social worker.
Carlie was a student in defendant's class for her first grade year, 2004-05, and her second grade year, 2005-06. Defendant rubbed Carlie's vagina under her clothes nearly every other day. Defendant's actions normally occurred in the Silent Room when Carlie sat in defendant's lap and at tables set up for private studying in the classroom. Defendant told Carlie to keep what happened a secret. Dr. Diana Meisburger ("Dr. Meisburger"), a psychologist, interviewed Carlie in July 2006. Carlie told Dr. Meisburger that defendant rubbed her vagina, both inside and outside her underwear. Carlie said that this occurred while she sat in defendant's lap at a table in the Silent Room, and also at a table where only one person could sit. Carlie told Dr. Meisburger that she experienced pain when defendant rubbed her vagina, and that defendant asked her to keep it a secret.
Dorothy was a first grade student in defendant's class during the 2005-06 school year. Defendant touched her vagina both inside and outside her clothes on two or three occasions. These actions usually occurred while Dorothy was sitting in defendant's lap near the math shelf in a chair at a table. Dr. Mary Baker Sinclair ("Dr. Sinclair"), a therapist, saw Dorothy following the 2005-06 school year. Dorothy told Dr. Sinclair that defendant touched her vagina a few times.
On 2 October 2006, a grand jury indicted defendant on five counts of taking indecent liberties with Aileen, two counts of first degree sex offense with Aileen, one count of indecent liberties with Bailey, one count of first degree sex offense with Bailey, two counts of indecent liberties with Carlie, one count of first degree sex offense with Carlie, and two counts of indecent liberties with Dorothy, with the dates of the offenses being 3 January 2005 to 5 June 2005.2 On 6 November 2006, the grand jury returned a superseding indictment. Defendant was indicted on two counts of indecent liberties with Dorothy. The dates of these offenses were changed to the time period from 3 January 2006 to 6 June 2006.
On 25 June 2008, the State moved to amend the superseding indictment to change the date of the offenses to the time period from 15 August 2005 to 6 June 2006. The trial court granted the motion on 28 June 2008. Defendant then filed a Motion for a Bill of Particulars, which the trial court granted on 14 July 2008. On 28 July 2008, the State filed its Bill of Particulars, which included the following language: "[t]he State hereby puts the Defendant on notice that the victims in each case are children, and that the information concerning the exact time, place, location, or specific manner of any offense provided in this Bill of Particulars should not be relied on for any degree of certainty[.]"
On 28 July 2008, defendant was tried by a jury in Durham County Superior Court. At the close of the State's evidence, defendant made a motion to dismiss all charges. The trial court granted defendant's motion to dismiss one count of first degree sex offense with Aileen and one count of indecent liberties with Aileen. At the close of all the evidence, defendant again moved to dismiss all charges. The trial court granted defendant's motion to dismiss one count of indecent liberties with Aileen and one count of first degree sex offense with Carlie. On 20 August 2008, the jury found defendant guilty of all remaining charges.
On each of the eight counts of indecent liberties with a child, the trial court sentenced defendant to a minimum term of 16 months to a maximum term of 20 months in the custody of the North Carolina Department of Correction. On each of the charges of first degree sex offense, defendant received a minimum term of 240 months to a maximum term of 297 months in the custody of the North Carolina Department of Correction. The trial court ordered defendant to serve all sentences consecutively. Defendant appeals.
Defendant argues that the trial court should have dismissed the indictment for first degree sex offense with Bailey ex mero motu because the indictment, when read in conjunction with the Bill of Particulars, failed to charge first degree sex offense, and was therefore fatally defective. We disagree.
Defendant did not raise this argument in the trial court; therefore, defendant would not ordinarily have preserved this issue for appellate review. N.C. R. App. P. 10(b)(1) (2009); see also State v. Giddens, ___ N.C. App. ___, ___, 681 S.E.2d 504, 507 (2009), aff'd per curiam, ___ N.C. ___, ___ S.E.2d ___ (2010) (). However, we have held that
[w]here there is a fatal defect in the indictment . . . a judgment which is entered notwithstanding said defect is subject to a motion in arrest of judgment. A defect in an indictment is considered fatal if it "wholly fails to charge some offense . . . or fails to state some essential and necessary element of the offense of which the defendant is found guilty." When such a defect is present, it is well established that a motion in arrest of judgment may be made at any time in any court having jurisdiction over the matter, even if raised for the first time on appeal.
State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1988) (quoting State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943)) (footnotes omitted).
Defendant contends that the allegations contained in the Bill of Particulars "[do] not constitute a felonious B1 criminal `sex act' within the meaning of N.C.G.S. 14-27.4(a)(1) and 14-27.1(4)." However, "[a] bill of particulars is not a part of the indictment, nor is it a substitute for or amendment to the indictment." State v. Parker, 119 N.C. App. 328, 336, 459 S.E.2d 9, 13 (1995) (citation omitted). Since defendant's argument does not allege that the indictment itself is fatally defective, it cannot be considered for the first time on appeal. Defendant's assignment of error is overruled.
Defendant argues that the trial court erred in denying his motion to dismiss the eight counts of indecent liberties and the two counts of first degree sex offense. We disagree.
"We review a trial court's denial of a motion to dismiss criminal charges de novo, to determine `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.'" State v....
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