State v. Smith, No. COA06-49.

Docket NºNo. COA06-49.
Citation636 S.E.2d 267
Case DateNovember 07, 2006
CourtCourt of Appeal of North Carolina (US)
636 S.E.2d 267
STATE of North Carolina
v.
Melvin Dwight SMITH.
No. COA06-49.
Court of Appeals of North Carolina.
November 7, 2006.

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COPYRIGHT MATERIAL OMITTED

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Appeal by defendant from judgments entered 14 July 2005 by Judge L. Todd Burke in Ashe County Superior Court. Heard in the Court of Appeals 21 September 2006.

Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

M. Alexander Charns, Durham, for defendant appellant.

McCULLOUGH, Judge.


Melvin Dwight Smith ("defendant") appeals judgments entered after a jury verdict of guilty of first-degree sex offense, attempted first-degree sex offense, and taking indecent liberties. We determine there was no error.

FACTS

On 12 July 2004, defendant was indicted for three counts of statutory sexual offense and three counts of taking indecent liberties with a minor. The case was tried at the 11 July 2005 Criminal Session of Ashe County Superior Court.

The State presented evidence at trial which tended to show the following: K.S. is the daughter of defendant. K.S. and defendant had a good relationship until conflict arose between them regarding K.S.'s relationship with her boyfriend. After that, defendant began abusing K.S., and the abuse

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usually occurred on Saturdays when K.S.'s mother was not at home.

K.S. testified to multiple incidents of abuse by defendant. The first incident occurred when defendant came into K.S.'s bedroom while K.S. was using her computer. Defendant came up behind K.S., put his hand in her pants, and inserted his fingers inside her. K.S. stated that she fell off the chair and told defendant to "stop."

The next incident took place while K.S. was driving a car and defendant was riding in the car. Defendant ran his hand up K.S.'s leg and tried to get into her pants, but K.S. leaned against the steering wheel to not allow defendant to do so.

K.S. also testified about another incident that occurred in her bedroom. Defendant entered K.S.'s bedroom while she was using the computer. Defendant sat on her bed and asked her if she knew how to put on a condom. Defendant demonstrated how to put on a condom, exposing his erect penis to K.S. as he did so.

Another incident occurred in the bathroom. Defendant entered the bathroom when K.S. was getting ready to take a shower. Defendant tried to show K.S. his "private part," and K.S. stabbed defendant with tweezers.

K.S. testified to a fifth incident that took place in her parent's bedroom. K.S. went into their bedroom to get batteries. Defendant pushed her down on the bed, said something sexual to her, and tried to take her pants off. K.S. told defendant she had her period and he stopped.

K.S. told the former minister of her family's church that defendant had touched her in a sexual manner. The minister referred K.S. to social services.

Detective Carolyn Gentry of the Ashe County Sheriff's Department received calls expressing concern that K.S. was being sexually abused by defendant and had also been beaten. As a result, Detective Gentry went to K.S.'s school on 19 February 2004 to check on her. K.S. described to Detective Gentry defendant's sexual abuse of her. K.S. then described to Angie Allen, a DSS child protective services worker, defendant's sexual abuse of her.

Detective Gentry asked defendant and his wife to come to the Sheriff's Department on 20 February 2004. They agreed and drove there in their own car. Detective Gentry talked to defendant's wife first, and then talked to defendant. Ms. Allen was also present. Defendant admitted he put his fingers in K.S.'s vagina. Defendant said he did so to check "if she had any semen in there." Defendant said he could not remember how many times he "fingered" K.S., but he thought it was at least three times. Ms. Allen stated that defendant admitted he tried to show K.S. how to use a condom.

Ms. Allen asked defendant to go to the DSS office to formulate a protective services plan for K.S. Defendant left the Sheriff's Department and went to the DSS office. At the DSS office, Ms. Allen asked defendant if he had ever said anything sexual to K.S. Defendant said he might have said some things to explain to K.S. the types of things boys would say to get to her. Then DSS took custody of K.S.

Defendant testified at trial as follows: Defendant denied that he sexually abused or attempted to sexually abuse K.S. Defendant said he had talked to K.S. about the importance of using condoms and had taken K.S. and a friend to buy condoms.

Defendant said that after he caught K.S. in bed with her boyfriend on 12 February 2004, K.S. begged him to "check her" himself rather than taking her to the hospital for an examination. K.S. pulled down her pajama bottoms, laid on the bed, and spread her legs so that he could see her vagina and check to see if she had sex with her boyfriend. Defendant "checked" K.S. again about 30 minutes later that same night. K.S. again pulled down her pajama bottoms, laid on the bed, and spread her legs so defendant could view her vagina.

I.

Defendant contends that he was not convicted by a unanimous verdict of the jury because neither the verdict sheets nor the jury instructions identified the specific incidents

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of the respective charges for which the jury found defendant guilty. Defendant argues that he was not found guilty by a unanimous jury because there was testimony regarding more incidents of sexual misconduct than there were individual charges. We disagree.

The Constitution of North Carolina states that "[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court." N.C. Const. art. I, § 24. Defendant cites our Court's opinion in State v. Lawrence, 165 N.C.App. 548, 599 S.E.2d 87 (2004), in support of his contention, but that opinion was recently reversed by our Supreme Court in State v. Lawrence, 360 N.C. 368, 627 S.E.2d 609 (2006). In Lawrence, the jury returned guilty verdicts for, among other things, three counts of taking indecent liberties with a minor and five counts of statutory rape. Id. at 369, 627 S.E.2d at 609. Regarding the counts of indecent liberties, our Supreme Court stated "a defendant may be unanimously convicted of indecent liberties even if: (1) the jurors considered a higher number of incidents of immoral or indecent behavior than the number of counts charged, and (2) the indictments lacked specific details to identify the specific incidents." Id. at 375, 627 S.E.2d at 613. Regarding the counts of first-degree statutory rape, our Supreme Court concluded that the defendant was unanimously convicted by the jury even though the victim testified that she had sexual intercourse with the defendant thirty-two separate times. Id. at 375-76, 627 S.E.2d at 613. The Court noted that the evidence at trial tended to show the specific instances of conduct in question at trial. Id. at 375, 627 S.E.2d at 613. The Court also noted:

(1) defendant never raised an objection at trial regarding unanimity; (2) the jury was instructed on all issues, including unanimity; (3) separate verdict sheets were submitted to the jury for each charge; (4) the jury deliberated and reached a decision on all counts submitted to it in less than one and one-half hours; (5) the record reflected no confusion or questions as to jurors' duty in the trial; and (6) when polled by the court, all jurors individually affirmed that they had found defendant guilty in each individual case file number.

Id. at 376, 627 S.E.2d at 613.

In the instant case, the jury heard testimony from multiple witnesses regarding, at a minimum, five alleged sexual incidents between defendant and K.S. The charges against defendant were based on three of those incidents. We see no merit in defendant's argument that he was not found guilty by a unanimous jury; the jury instructions and verdict sheets were clear as to what incident corresponded to a particular charge. The verdict sheets specifically designated which incident corresponded to each charge. One verdict sheet stated that it related "to the alleged incident at the computer." Another verdict sheet stated it related "to the alleged incident in the car." The last verdict sheet stated that it related "to the alleged incident in the defendant's bedroom." Moreover, the trial judge was clear in the jury instructions which specific incident corresponded to a particular charge and that the jury must be unanimous in reaching its verdict regarding each charge.

Therefore, we disagree with defendant's contention.

II.

Defendant contends the trial court erred in allowing the State's motion to amend the dates alleged on each indictment. We disagree.

The North Carolina General Statutes provide that "[a] bill of indictment may not be amended." N.C. Gen.Stat. § 15A-923(e) (2005). Our Supreme Court adopted this Court's interpretation of "amendment" in this context to mean "`any change in the indictment which would substantially alter the charge set forth in the indictment.'" State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) (citation omitted). When time is not an essential element of the crime, "an amendment in the indictment relating to the date of the offense is permissible since the amendment would not substantially alter the charge set forth in the indictment." State v. Campbell, 133 N.C.App. 531, 535, 515

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S.E.2d 732, 735, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).

In the present case, time is not an essential element of the crime. Defendant was neither misled nor surprised at the nature of the charges. Although "a variance as to time does become material and of essence when it deprives a defendant of an opportunity to adequately present his defense," id. at 536, 515 S.E.2d at 735, nothing in the record illustrates that defendant was unable to present his defense. Moreover, as defendant's brief states, defendant did not raise an alibi defense.

Accordingly, we disagree with...

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13 practice notes
  • State v. McPhail, No. COA13–1182.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 19, 2014
    ...to object to the trial court's decision and declined to take advantage of that opportunity. State v. Smith,180 N.C.App. 86, 98, 636 S.E.2d 267, 275 (2006). As a result, in light of the complete absence of any indication that Defendant expressed any disagreement with the trial court's decisi......
  • State v. Grange, No. COA09-605 (N.C. App. 4/6/2010), No. COA09-605.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 6, 2010
    ..."`Any object' in this context includes any part of the human body, including a finger." State v. Smith, 180 N.C. App. 86, 95, 636 S.E.2d 267, 273 (2006) (citing State v. Lucas, 302 N.C. 342, 345-46, 275 S.E.2d 433, 435-36 Defendant relies upon three basic arguments to challenge th......
  • State v. Comeaux, No. COA11–1289.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 31, 2012
    ...Gen.Stat. § 15–166, however, the court must comply with the rule set forth in Waller, see, e.g., State v. Smith, 180 N.C.App. 86, 98, 636 S.E.2d 267, 275 (2006); State v. Starner, 152 N.C.App. 150, 154, 566 S.E.2d 814, 816–17 (2002); State v. Jenkins, 115 N.C.App. 520, 525, 445 S.E.2d 622, ......
  • State v. Phachoumphone, No. COA17-247
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • February 6, 2018
    ...of another person's body[.] ..." Id. § 14-27.20 (2015). A finger is an "object." State v. Smith , 180 N.C. App. 86, 95, 636 S.E.2d 267, 273 (2006) (" ‘Any object’ in this context includes ... a finger." (citation omitted)).During Tara's remote testimony, she demonst......
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14 cases
  • Batts v. North Carolina, 5:21-HC-02239-M
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • January 6, 2023
    ...‘immoral, improper and indecent liberty'”), disc, rev, denied, 320 N.C. 516, 358 S.E.2d 530 (1987); State v. Smith, 180 N.C.App. 86, 92, 636 S.E.2d 267, 272 (2006) (“‘In general, an indictment couched in the language of the statute is sufficient to charge the statutory offense.'” (citation ......
  • State v. McPhail, No. COA13–1182.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 19, 2014
    ...to object to the trial court's decision and declined to take advantage of that opportunity. State v. Smith,180 N.C.App. 86, 98, 636 S.E.2d 267, 275 (2006). As a result, in light of the complete absence of any indication that Defendant expressed any disagreement with the trial court's decisi......
  • State v. Grange, No. COA09-605 (N.C. App. 4/6/2010), No. COA09-605.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 6, 2010
    ...omitted). "`Any object' in this context includes any part of the human body, including a finger." State v. Smith, 180 N.C. App. 86, 95, 636 S.E.2d 267, 273 (2006) (citing State v. Lucas, 302 N.C. 342, 345-46, 275 S.E.2d 433, 435-36 Defendant relies upon three basic arguments to challenge th......
  • State v. Comeaux, No. COA11–1289.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 31, 2012
    ...Gen.Stat. § 15–166, however, the court must comply with the rule set forth in Waller, see, e.g., State v. Smith, 180 N.C.App. 86, 98, 636 S.E.2d 267, 275 (2006); State v. Starner, 152 N.C.App. 150, 154, 566 S.E.2d 814, 816–17 (2002); State v. Jenkins, 115 N.C.App. 520, 525, 445 S.E.2d 622, ......
  • Request a trial to view additional results

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