State v. Scott
| Decision Date | 20 July 2021 |
| Docket Number | No. COA20-688,COA20-688 |
| Citation | 863 S.E.2d 194,278 N.C.App. 585 |
| Parties | STATE of North Carolina v. Lawrence SCOTT, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Ellen Newby, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for the Defendant.
¶ 1 Lawrence Scott ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of two counts of sexual activity by a substitute parent, a violation of N.C. Gen. Stat. § 14-27.7(a). On appeal, Defendant argues that the trial court erred in allowing amendment of the indictment charging him with these offenses. Defendant also argues that the trial court erred by sentencing him to consecutive sentences for his convictions. We hold that Defendant has failed to demonstrate any error.
¶ 2 On Tuesday, 31 May 2016, Katherine1 stayed home from school after returning from an out-of-town trip over the Memorial Day weekend. The holiday fell on Monday, 30 May 2016 that year, and Katherine had returned home late at night. She was 16 years old at the time. There was an exam period at her school that week and she did not need to be at school on Tuesday because she had no exam that day.
¶ 3 That morning, Katherine's mother had a job interview. Before leaving for the interview, Katherine's mother woke her and invited her to come with her, but Katherine declined. After Katherine's mother left for the interview, Katherine went back to sleep.
¶ 4 Defendant is the father of Katherine's younger sister and had been living with Katherine's family since losing his job in 2015. After Katherine's mother left for the interview, Defendant entered the room where Katherine had been sleeping. Katherine was still in bed, but she was awake. Defendant began flashing money at Katherine, whereupon she asked if she could have a dollar. Defendant replied that she would have to work for it, and repeated this several times.
¶ 5 Defendant then performed cunnilingus on Katherine and then stood up and had her perform fellatio on him. He also attempted to penetrate her vaginally.
¶ 6 Katherine's mother then returned home. She had gone grocery shopping after her job interview. Defendant brought some of the grocery bags inside and then left the home. After he left, Katherine told her mother what had happened.
¶ 7 On 29 July 2016, a warrant was issued for Defendant's arrest. He was taken into custody the same day. A Wake County grand jury indicted him with three counts of sexual activity by a substitute parent on 22 August 2016.
¶ 8 The matter came on for trial before the Honorable A. Graham Shirley in Wake County Superior Court on 17 July 2018. At the conclusion of a three-day trial, the jury acquitted Defendant of one of the counts. It was hopelessly deadlocked on the remaining two. Judge Shirley accepted the jury's not guilty verdict on the first count and declared a mistrial as to the remaining counts.
¶ 9 Defendant was re-tried in October 2019 before the Honorable Rebecca W. Holt. Judge Holt presided over a four-day trial. At the conclusion of the trial, the jury returned verdicts of guilty on the remaining counts. The court entered two judgments on the jury's verdicts, sentencing Defendant to 20 to 84 months in prison in each judgment, and ordering that the sentences run consecutively. The court also ordered that Defendant register as a sex offender and entered a permanent no contact order with Katherine.
¶ 10 Defendant entered timely written notice of appeal on 1 November 2019.
¶ 11 Defendant makes essentially two arguments on appeal, which we address in turn.
¶ 12 Defendant first argues that the trial court erred by granting the State's motion to amend the indictment. Specifically, Defendant contends that allowing the State to amend the indictment by adding the words "[a]t the time of the offense, the defendant was residing in the home with [Katherine]" substantially altered the charges in the indictment, adding an essential element to the offense charged—an element the unamended version of the indictment did not include. We disagree.
N.C. Gen. Stat. § 15A-924(a)(5) (2019) (emphasis added).
¶ 14 "[A]n indictment is fatally defective if it fails to state some essential and necessary element of the offense of which the defendant is found guilty." White , 372 N.C. at 250, 827 S.E.2d at 82 (internal marks and citation omitted). An invalid indictment "fails to confer subject-matter jurisdiction on the trial court." State v. Lyons , 268 N.C. App. 603, 607, 836 S.E.2d 917, 921 (2019) (citation omitted). Accordingly, the validity of an indictment may be raised for the first time on appeal "even though no corresponding objection, exception or motion was made in the trial division." State v. Sturdivant , 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981).
¶ 15 "Although G.S. 15A-923(e) prohibits the amendment of a bill of indictment, the term ‘amendment’ has been restrictively defined as ‘any change in the indictment which would substantially alter the charge set forth in the indictment.’ " State v. Cameron , 83 N.C. App. 69, 72, 349 S.E.2d 327, 329 (1986) (quoting State v. Price , 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) ). Thus, "while amending an indictment to add an essential element to the allegations contained therein constitutes a substantial alteration, an amendment that simply corrects an error unconnected and extraneous to the allegations of the essential elements [does] not." State v. Stith , 246 N.C. App. 714, 716, 787 S.E.2d 40, 43 (2016) (internal marks and citation omitted), aff'd , 369 N.C. 516, 796 S.E.2d 784 (2017).
¶ 16 Both the facial validity of indictments and trial rulings allowing amendment of indictments are reviewed de novo by our Court. See, e.g. , State v. Edgerton , 266 N.C. App. 521, 525, 832 S.E.2d 249, 253 (2019) (); State v. Frazier , 251 N.C. App. 840, 795 S.E.2d 654, 655 (2017) (). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal."
State v. Williams , 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal marks and citation omitted).
¶ 17 The crime of sexual activity by a substitute parent is defined by N.C. Gen. Stat. § 14-27.31, which provides:
If 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, the defendant is guilty of a Class E felony.
N.C. Gen. Stat. § 14-27.31(a) (2019). "[T]he elements of sexual activity by a substitute parent are (1) vaginal intercourse or a sexual act, (2) with a minor victim residing in a home, (3) by a person who has assumed the position of a parent in the minor victim's home." State v. Johnson , 253 N.C. App. 337, 346, 801 S.E.2d 123, 128 (2017). "Proof of a ‘sexual act’ under [the statute] does not require ... penetration." State v. Hoover , 89 N.C. App. 199, 208, 365 S.E.2d 920, 926 (1988).
As noted previously, the indictment charged Defendant with three counts of the offense.
¶ 19 The unamended version of the indictment thus charged that Defendant, (1) "having assumed the position of a parent in the home of [Katherine]"; (2) "a person less than eighteen years old"; (3) "engaged in a sexual act with that person." These allegations allege the essential elements of sexual activity by a substitute parent. See Johnson , 253 N.C. App. at 346, 801 S.E.2d at 128. We therefore hold that the unamended version of the indictment was facially valid. Accordingly, even this unamended version of the indictment served the dual purposes of a valid indictment—providing Defendant with notice and preventing double jeopardy. See Rankin , 371 N.C. at 886, 821 S.E.2d at 790.
¶ 20 The State's motion to amend the indictment was heard on 12 July 2018 before the Honorable R. Allen Baddour, Jr., in Wake County Superior Court. Defendant argued at the hearing that the State's proposed amendment was impermissible because liability for the offense required proof both (1) that the defendant resided in the home and (2) that he had acted in a parental role, and that these two facts were separate essential elements of the crime. The State disputed this argument and explained that it was "asking to amend out of an abundance of caution, to – just to be clear[.]" Judge Baddour consulted the pattern jury instructions and noted that the third element of the offense in the pattern instruction was that "that the defendant had...
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