State v. Massey

• Decision Date: 01 November 2005
• Docket Number: No. COA04-1443.,COA04-1443.
• Citation: 621 S.E.2d 633
• Parties: STATE of North Carolina v. Marlon Rio MASSEY.
• Court: North Carolina Supreme Court

621 S.E.2d 633

STATE of North Carolina v. Marlon Rio MASSEY.

No. COA04-1443.

Court of Appeals of North Carolina.

November 1, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from judgments entered 22 April 2004 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 22 August 2005.

Roy A. Cooper, III, Attorney General, by Anne M. Middleton, Assistant Attorney General, for the State.

Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, Durham, for defendant-appellant.

MARTIN, Chief Judge.

Defendant was convicted of five counts of first-degree sexual offense with a child under 13, ten counts of felonious sexual act with a minor over whom he assumed the position of parent residing in the home, and four counts of indecent liberties. These verdicts were consolidated for sentencing, and defendant received five consecutive sentences of a minimum of 275 months and a maximum of 339 months. After careful review of the record, we find no error as to defendant's conviction of five counts of first-degree sexual offense and two counts of felonious sexual act with a minor. However, we must reverse his remaining convictions of felonious sexual act with a minor and indecent liberties convictions, and remand the case for a new trial.

The State presented evidence at trial which tended to show the following: in July 2000, defendant moved in with H.J., her mother Rebecca, and half sister A.T. H.J. was six years old at that time. It was agreed that defendant would be treated as a stepfather. H.J. testified that when she was eight, in September 2002, shortly after the birth of her brother, defendant made her pull off her clothes and get in her mother's bed with him. He would turn her on her side and "stick his thing in [her] backside," and that this happened about twenty times. She testified that by "his thing" she meant defendant's penis.

She further testified that he would touch her breasts, that before he put "his thing" in her "backside" he would lick his fingers and touch her "backside," and that the same thing would happen in the living room as well as the bedroom. H.J. stated that he asked her to lick his penis, but she refused, and that he licked her breasts and on her "front part." She also explained that sometimes these acts also occurred in the living room on Sunday, when the race would be on television. H.J. testified that defendant licked her twice, but that it was not at the same time he was putting "his thing" in her "backside", but afterwards. She explained that her mom found out on 5 June 2003 when A.T. saw defendant "holding on to her", and told Rebecca, who then talked to H.J. Subsequently, H.J. talked to the sheriffs and went to the hospital for an examination.

Sara Ehlers Dentel, a forensic nurse examiner, testified that she completed a rape kit on H.J. and took photographs of H.J's vaginal and rectal areas. During her examination, she found what appeared to be bruising and ulcerations inside H.J's rectum consistent with H.J.'s statements.

Detective Arnette Miles testified that she interviewed H.J. regarding the allegations, and H.J. told her that defendant put "his thing" in her "backside" in the master bedroom; that he had licked her vagina twice; that, sometimes prior to placing "his thing" in her "butt," he would spit on his hands and digitally penetrate her; and that on several occasions defendant also did this in the living room on the couch. After taking this statement, Detective Miles testified that she traveled with two other officers to H.J.'s home, where they questioned defendant. After initially denying the allegations, they again asked defendant "if he did it," and defendant began to cry and nodded his head affirmatively.

Miles testified that defendant gave a statement that prior to 5 June 2003, he had sodomized H.J. at least six times. Miles explained that defendant stated that he had licked H.J. two or three times, that H.J. had licked his penis, but he could not remember how many times, and that sometimes this had taken place in the master bedroom and sometimes in the living room on the couch.

Agent Suzi Barker, forensic biologist with the State Bureau of Investigation, testified there was semen found on the panties worn by H.J. on 5 June 2003. Agent Brenda Bisset, a forensic DNA examiner, testified that the DNA profile from this semen matched the DNA profile obtained from defendant. Defendant offered no evidence.

On appeal, defendant brings forward assignments of error regarding 1) the sufficiency of the short form indictments; 2) the trial court's failure to completely instruct the jury concerning several of the counts in the indictments; 3) the trial court's instructions were based on theories not alleged in the indictments; 4) the deprivation of his constitutional right to jury unanimity due to jury instructions that resulted in ambiguous verdicts; and 5) the violation of his constitutional right to a jury regarding his sentencing in the aggravated range. We address each of these arguments in turn.

I.

Defendant contends the short-form indictments returned in these cases were defective because they failed to allege all the essential elements of the charges. This argument is without merit. Indictments must be sufficient to put defendant on notice of the charges. State v. Kennedy, 320 N.C. 20, 24, 357 S.E.2d 359, 362 (1987). "An indictment is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense." State v. McGriff, 151 N.C.App. 631, 634, 566 S.E.2d 776, 778 (2002) (internal citations omitted).

In child sex abuse cases, due to the uncertainty of children regarding dates and times, courts are lenient regarding differences between alleged dates and those presented at trial. Id. at 635, 566 S.E.2d at 779. To show prejudice from such leniency, we require that defendants show a deprivation of their defense due to lack of specificity. Id. Moreover, even though short-form indictments do not list all of the elements of a particular crime, their use as charging instruments for statutory sex offense has been authorized by the legislature. State v. Miller, 159 N.C.App. 608, 613, 583 S.E.2d 620, 623 (2003), aff'd, 358 N.C. 133, 591 S.E.2d 520 (2004). "In general, an indictment couched in the language of the statute is sufficient to charge the statutory offense," and "need only allege the ultimate facts constituting the elements of the criminal offense and that evidentiary matters need not be alleged." State v. Blackmon, 130 N.C.App. 692, 699, 507 S.E.2d 42, 46, cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998).

Here, the first-degree sex offense indictments match the form required by N.C. Gen.Stat. § 15-144.2(b); the sex offense in a parental role indictments match the language of N.C. Gen.Stat. § 14-27.7; and the indecent liberties indictments match the wording of N.C. Gen.Stat. § 14-202.1. Therefore, they are sufficient to inform the defendant of the charges against him. In addition, defendant has not shown deprivation of his ability to prepare a defense due to a lack of specificity in the indictments. Accordingly, this assignment of error is overruled.

II.

Defendant also maintains the trial court erred by instructing jury on theories of guilt not alleged in the indictment because the date and time periods in the jury instructions were not specified in the indictments. We disagree.

The fact that a crime was committed on a date other than that which is alleged in the indictment "is not fatal" and "a variance between allegation and proof as to time is not material where no statute of limitations is involved," Blackmon, 130 N.C.App. at 697, 507 S.E.2d at 45 (internal citations omitted) (date range between 1 January and 12 September 1994), as long as the defendant has an opportunity to present an adequate defense. McGriff, 151 N.C.App. at 637, 566 S.E.2d at 780 (date between 1 December 1998 and 27 January 1999 not prejudicial).

Here, the trial court did not instruct on a different theory, or under a different statute. Cf. State v. Lawrence, ___ N.C.App. ___, ___, 612 S.E.2d 678, 683 (May 17, 2005) (No. COA03-1038), temp. stay allowed, 359 N.C. 640, 615 S.E.2d 662 (2005) (Lawrence II, a case unrelated to Lawrence I) (instruction based on theory that sex offense was against a victim under the age of 13, but indictments alleged theory of forcible offense); State v. Bowen, 139 N.C.App. 18, 24, 533 S.E.2d 248, 252 (2000) (holding that "the trial judge, by his failure to submit the proper jury instructions for the three counts of first degree (forcible) sexual offense against defendant, effectively dismissed those charges"). Since we have already determined that the indictments were sufficient to put defendant on notice of the charges against him, and since the lack of specificity as to time when dealing with child sex abuse cases is not fatal, this argument is overruled. See, e.g., Blackmon, 130 N.C.App. at 697, 507 S.E.2d at 46.

III.

Defendant next argues that the trial court effectively dismissed the indictments by failing to completely and specifically instruct the jury as to certain counts. He maintains that the trial court failed to instruct the jury on the necessary elements for sex offense against a minor by a person in a parental role (counts two and three in 03 CRS 56202), and on the necessary elements of indecent liberties (count three in 03 CRS 56205 and count two in 03 CRS 56207).

"[A] trial judge who instructs on a different charge than the one defendant is indicted on, has essentially dismissed the indictment." Bowen, 139 N.C.App. at 26, 533 S.E.2d at 253 (instructing the jury on statutory sex offense when defendant indicted for forcible first-degree sex offense). The trial court, however, does not have to instruct on each count separately. See State v. Parker, 119...