Opinion
No. COA11–1123.
2012-04-17
STATE of North Carolina v. Larry Dewayne BONEY.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State. William D. Spence for Defendant-appellant.
Appeal by Defendant from judgments and commitments entered 30 March 2011 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 25 January 2012. Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State. William D. Spence for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Larry Dewayne Boney (“Defendant”) appeals the jury's verdict convicting him of four counts of statutory rape, four counts of incest, and five counts of taking indecent liberties with children. After careful review, we find no error.
I. Factual Background & Procedural History
The State's evidence at trial tended to show the following. In October 2007, Defendant lived with several of his children and stepchildren, including his daughter, Q.C., and his stepdaughter, S.S., at Defendant's residence on Langdon Street in Fayetteville. On the eve of her sixteenth birthday, Q.C. requested her father's permission to invite friends over and to have a birthday party. Defendant replied, “you know what you will have to do ... to have a sixteenth birthday party.” Q.C. resisted at first, stating “never mind; I don't want it anymore then.” Q.C. ultimately relented, however, and removed the clothing from the lower half of her body. Positioning herself on Defendant's bed, Q.C. remained on her back with her legs dangling over the edge of the bed while Defendant removed his pants and proceeded to insert his penis into her vagina. Q.C.'s siblings played videogames in an adjacent bedroom; her stepsister, S.S., was washing dishes in the kitchen. Defendant continued to engage in vaginal intercourse with Q.C. until he was near climax, but removed his penis from Q.C.'s vagina prior to ejaculation. Defendant wiped himself off with an article of clothing and told Q.C., “you can have your sixteen[th] birthday party.”
The initials of the minor victims are used throughout this opinion.
In the spring of 2008, Q.C., S.S., and several of their siblings moved with Defendant to a new residence hereinafter referred to as “Foxfire.” Defendant continued to engage in sexual intercourse with Q.C., although less often because there were “more people in the house.” Defendant also sexually abused S.S. on a regular basis, as described in more detail infra.
In July 2008, S.S. ran away from Foxfire “because of what [she] was going through at home.” On or about 22 July 2008, S.S. contacted Tawanda McLaurin, a social worker at her school. S.S. told Ms. McLaurin that Defendant was sexually abusing her and her stepsister, Q.C., and that she had run away from home. Ms. McLaurin immediately reported the matter to the Department of Social Services (“DSS”), and DSS contacted law enforcement.
On 23 March 2009, Defendant was indicted on four counts of statutory rape of a fifteen year old, one count of a statutory sexual offense of a fifteen year old, four counts of incest with a fifteen year old, five counts of taking indecent liberties with children, one count of felony incest, and one count of a crime against nature. The matter came on for trial on 22 March 2011, when S.S. and Q.C. were eighteen and nineteen years old, respectively.
At trial, S.S. testified that Defendant began “touching” her when she was five years old. She stated that Defendant “never went inside my vagina until I was, like, 13,” but “before then, it went inside my butt.” S.S. described two specific instances at Foxfire—one in May 2008 and one in June 2008—where Defendant engaged in vaginal intercourse with her. S.S. also described a separate incident in which Defendant forced her to bend over the bathtub while Defendant engaged in vaginal and anal intercourse with her. Although she was unable to recall the specific dates of other incidents, S.S. testified that Defendant had sexual intercourse with her “[t]wice a month, three times a month,” and, she “didn't feel it no more ‘cause it happened so many times.”
The State called Ms. McLaurin as a witness to corroborate S.S.'s testimony. Ms. McLaurin testified that S.S. contacted her by telephone in July 2008 and told her that she had run away from home. S.S. told her that Defendant had been sexually molesting her and Q.C., and that Q.C. was still living at Foxfire with Defendant.
Gloria Grice, a woman to whom S.S. referred to as “Grandma,” also testified as a witness for the State and corroborated S.S.'s testimony. Ms. Grice testified that S.S. came to live with her after S.S. ran away from Foxfire in July 2008. Ms. Grice further testified S.S. told her that Defendant molested her before she ran away from home.
Q.C. also took the stand and testified to acts of sexual abuse, including the incident described supra in which Defendant engaged in sexual intercourse with her shortly before her sixteenth birthday. She testified that Defendant began having vaginal intercourse with her when she was eight or nine years old, and that the sexual abuse persisted through July 2008. According to Q.C., Defendant forced her to engage in sexual acts “daily.”
Doctor Sharon Cooper, a developmental and forensic pediatrician, testified as an expert witness for the State. Dr. Cooper testified that she examined and obtained histories from S.S. and Q.C. on 18 August 2008. She described S.S.'s history, as relayed to her by S.S .:
I asked her if she could remember how many times she had been sexually abused by [Defendant]; and, she said that there were so many times that she could really hardly count them because this would happen sometimes several days a week; they would happen often during the course of her relationship with [Defendant]; and, this would happen even sometimes when she was on her periods.
Dr. Cooper testified that her physical examination of S.S. revealed an absence of hymenal tissue from the four o'clock position to the eight o'clock position. She described this as a “[v]ery specific” finding that supported “[r]epeated penetration of the vagina.” Moreover, Dr. Cooper stated that this significant absence of hymenal tissue was “very consistent with persistent, nonconsensual sexual intercourse or penetration of an object.” Dr. Cooper also stated that she observed “changes to the posterior fourchette,” which she described as abnormal, but not necessarily indicative of sexual abuse. Dr. Cooper further testified that her examination of S.S. revealed no signs of sexual abuse in the anal area, but that “a patient can be chronically sodomized quite a bit over years and the anus can still appear normal on examination.” Dr. Cooper then testified, without objection:
Based upon my medical evaluation of this child, the history that was provided to me by the patient, the behavioral history also that was provided to me by the patient and the findings on physical examination—these three components are consistent with those seen in children who have been sexually abused.
Dr. Cooper proceeded to describe her evaluation of Q.C. Dr. Cooper testified that, according to the history given to her by Q.C., Defendant began raping Q.C. when she was eight years old. Q.C. lived with her grandmother, Mae Boney, at the time but the abuse would occur “almost every time” Q.C. went to visit Defendant at Defendant's residence. When Q.C. went to live with Defendant in April 2007, the abuse occurred “at least every other day.” Q.C. told Dr. Cooper that “she'd had a one-time sexual contact with a peer, a boyfriend.” Dr. Cooper's physical examination of Q.C. revealed abnormal findings in the posterior fourchette, which Dr. Cooper acknowledged could be explained by the single instance consensual sexual contact. However, based upon the history given to her and her physical examination of Q.C., Dr. Cooper testified: “It is my opinion that, based upon the medical history and the behavioral history provided by this patient as well as the physical examination, that this constellation of findings are most consistent with those seen in children who have been sexually abused.” Defendant's objection to this testimony was overruled.
Defendant testified on his own behalf and denied all allegations of sexual abuse. The defense also offered witnesses who testified they had never observed Defendant engaged in any sexual behavior with either S.S. or Q.C. At the close of all the evidence, Defendant moved to dismiss all charges against him for insufficiency of the evidence. The trial court granted Defendant's motion as to the statutory sexual offense and crime against nature charges set forth in 08 CRS 67029 and denied Defendant's motion as to the remaining charges.
Defense counsel also raised an issue concerning the dates set forth in 08 CRS 67026:
In 6702—yes, sir—in 67026, which is the charge of rape and incest and indecent liberties concerning [Q.C.], the dates are October 30th, '07, to November 1, '07. The problem seems to be that, October 30th of '07, [Q.C.] is 15. In November of '07, [Q.C.] is 16. My client cannot be convicted of statutory rape of a 13, 14, or 15–year–old if the jury believes the rape occurred on November 1st.
The State asked the trial court to amend the dates in the indictment to include the dates between and including 30 October 2007 and 31 October 2007. Over Defendant's objection, the trial court granted the State's request to amend the indictment.
On 30 March 2011, the jury returned the following verdicts:
08 CRS 67024: Guilty of statutory rape, incest, and indecent liberties with a child (S.S)
08 CRS 67025: Guilty of statutory rape, incest, and indecent liberties with a child (S.S.)
08 CRS 67026: Guilty of statutory rape, incest, and indecent liberties with a child (Q.C.)
08 CRS 67027: Not guilty of felony incest (Q.C.)
08 CRS 67028: Guilty of statutory rape, incest, and indecent liberties with a child (S.S.)
08 CRS 67029: Guilty of indecent liberties with a child (S.S)
The trial court sentenced Defendant to consecutive terms of 288 to 355 months for each case (08 CRS 67024, 08 CRS 67025, 08 CRS 67026, 08 CRS 67028, and 08 CRS 67029). In addition, the trial court ordered Defendant to register as a sex offender upon release from imprisonment and to enroll in satellite-based monitoring for the remainder of his natural life. Defendant entered his notice of appeal in open court.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011), as Defendant appeals from final judgments of the superior court as a matter of right.
III. Analysis
A. Dr. Cooper's Expert Testimony
Defendant first contends the trial court erred in allowing Dr. Cooper to testify that S.S. and Q.C. presented symptoms “consistent with” children who have been sexually abused. Defendant specifically contends Dr. Cooper's testimony improperly bolstered the credibility of the alleged victims and was introduced by the State without a proper foundation. We find these contentions unpersuasive.
Defendant concedes he did not object at trial when Dr. Cooper testified that her examination of S.S. revealed symptoms “consistent with” sexual abuse. Where a criminal defendant fails to preserve an evidentiary issue through objection at trial, we review for plain error. SeeN.C. R.App. P. 10(a)(4). Moreover, our review of the trial transcript indicates Defendant lodged only a general objection to Dr. Cooper's testimony that her examination of Q.C. revealed symptoms “most consistent with those seen in children who have been sexually abused.” As this Court has explained, “[a] general objection is normally not sufficient to preserve an issue for review on appeal.” State v. Delsanto, 172 N.C.App. 42, 47, 615 S.E.2d 870, 874 (2005). However, because we discern no error in the trial court's admission of either portion of Dr. Cooper's testimony, we need not reach the question of plain error. See State v. Torain, 316 N.C. 111, 123, 340 S.E.2d 465, 468 (1986) (stating that error at trial is prerequisite to an appellate finding of plain error).
Rule 702 provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.
N.C. R. Evid. 702(a) (2011). Regarding expert testimony in cases involving alleged sexual abuse of a child, our Supreme Court has explained:
In a sexual offense prosecution involving a child victim, the trial court should not admit expert opinion that sexual abuse has in fact occurred because, absent physical evidence supporting a diagnosis of sexual abuse such testimony is an impermissible opinion regarding the victim's credibility. However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.
State v. Stancil, 355 N.C. 266, 266–67, 559 S.E.2d 788, 789 (2002) (internal citation omitted).
In the instant case, Dr. Cooper based her opinion upon her examination and the history of the alleged victims as given to her. Defendant relies upon State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987) and State v. Couser, 163 N.C.App. 727, 594 S.E.2d 420 (2004) as support for his assertion that it was error to admit Dr. Cooper's testimony. These cases are distinguishable.
In Trent, the State's medical expert testified that his physical examination of the victim revealed her hymen was not intact but “showed no lesions, tears, abrasions, bleeding or otherwise abnormal conditions.” 320 N.C. at 613, 359 S.E.2d at 465. The medical expert stated that the physical condition of the hymen alone “would not support a diagnosis of sexual abuse, but only a conclusion that the victim had been sexually active.” Id. at 614, 359 S.E.2d at 466. Based on the examination and the history given to him by the victim, however, the medical expert testified that his “diagnosis was that of sexual abuse.” Id. at 615, 359 S.E.2d at 466. Our Supreme Court held that the medical expert was in no better position than the jury to determine whether the victim had been sexually abused, and that his testimony was inadmissible pursuant to Rule of Evidence 702. Id.
In Couser, the State's medical expert testified that her examination of the victim had revealed two abnormal abrasions. 163 N.C.App. at 729, 594 S.E.2d at 422. While admitting the abrasions were not specific to sexual abuse, the medical expert nevertheless testified that “her diagnosis was probable sexual abuse.” Id . (emphasis added). This Court held there was “insufficient physical evidence to support [the medical expert's] testimony of her diagnosis and opinion that the victim was probably sexually abused.” Id. at 730, 594 S.E.2d at 422.
The case sub judice is distinguishable from Trent and Couser because Dr. Cooper's testimony did not go so far as to diagnose S.S. and Q.C. as victims or “probable” victims of sexual abuse. Dr. Cooper testified only that S.S. and Q.C. presented symptoms “consistent with” children who had been sexually abused. This Court continues to distinguish between testimony that abuse has in fact occurred and testimony that the alleged victim's symptoms are consistent with sexual abuse. See State v. Khouri, ––– N.C.App. ––––, 716 S.E.2d 1 (2011). For example, this Court recently held in Khouri that it was not error to allow the State's medical expert—who had never even met the victim prior to trial—to testify that the victim's statements and demeanor at trial were “consistent with” a child who had been sexually abused. Id . at ––––, 716 S.E.2d at 9–10. Following our Supreme Court's ruling in Stancil, see supra, this Court explained in Khouri that unlike testimony that abuse has “in fact” occurred, “consistent with” testimony does not serve to bolster the credibility of the prosecuting witness. Id. at ––––, 716 S.E.2d at 10. Our holding in Khouri makes clear that the quantum of physical findings necessary to serve as a foundation for testimony that abuse has “in fact” occurred is not a prerequisite for testimony that a child victim's symptoms are “consistent with” sexual abuse. Guided by precedent, we conclude that Dr. Cooper's testimony regarding her interviews and examinations of the victims in this case served as a sufficient foundation for her testimony. Accordingly, we hold the trial court did not err in admitting Dr. Cooper's testimony that S.S. and Q.C. presented symptoms “consistent with” victims of sexual abuse.
B. The State's Motion to Amend the Indictment in 08 CRS 67026
The indictment at issue (08 CRS 67026) charged Defendant with the felonies of statutory rape of a person fifteen years of age, incest with a person fifteen years of age, and taking indecent liberties with a child less than sixteen years of age. Each count of the indictment alleged that these offenses occurred “on or about and between and including the date of October 30, 2007 and November 1, 2007.” At trial, the State moved to amend the indictment to eliminate 1 November 2007 from the range of dates when the offense was committed, as this date represented the victim's (Q.C.) sixteenth birthday. Over Defendant's objection, the trial court allowed the amendment. Defendant now contends this was error. We disagree.
N.C. Gen.Stat. § 15A–924(a)(4) provides that a criminal pleading, such as an indictment, must contain:
A statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time.
Error as to a date or its omission is not ground for dismissal of the charges or for reversal of a conviction if time was not of the essence with respect to the charge and the error or omission did not mislead the defendant to his prejudice.
N.C. Gen.Stat. § 15A–924 (a)(4) (2011). Unless “time is of the essence,” a criminal judgment may not be disturbed because the indictment “state[s] the time imperfectly.” N.C. Gen.Stat. § 15–155 (2011). “A variance as to time ... becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense.” State v. Stewart, 353 N.C. 516, 518, 546 S.E.2d 568, 569 (2001) (quoting State v. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984)) (alteration omitted) (omission in original). Even “[i]f time is of the essence of the crime charged, the indictment must be dismissed under Section 924(a)(4) only if (1) there is an error in the date or period of time listed on the indictment, or the omission thereof, and (2) the error or omission misled the defendant to his prejudice.” State v. McKinney, 110 N.C.App. 365, 370, 430 S.E.2d 396, 403–04 (1961).
The dates of the offenses alleged in the indictment at issue were couched in terms of “on or about and between,” which is an appropriate way to describe the date of an alleged offense. SeeN.C. Gen.Stat. § 15A–924(a)(4) (2011). The indictment affirmatively states that the alleged victim was fifteen years old at the time of the offense. When the indictment is read holistically, it states that the offense occurred on or about and between 30 October and 1 November when the alleged victim was fifteen.
More importantly, Defendant has failed to demonstrate prejudice in this case. Defendant does not contend that the date of the indictment prevented him from asserting a defense, such as an alibi. He has failed to establish that he was misled by the indictment to his prejudice. Without prejudice, Defendant's argument necessarily fails. McKinney, 110 N.C.App. at 370, 430 S.E.2d at 303. Accordingly, we hold the trial court did not err in allowing the State to amend the indictment at issue.
C. Defendant's Motion to Dismiss
Defendant further contends the trial court erred by denying his motion to dismiss for insufficiency of the evidence on the statutory rape, incest, and indecent liberties charges brought forth in 08 CRS 67025 and 08 CRS 67028.
“When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). The trial court should grant the defendant's motion to dismiss “[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it.” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). In determining whether substantial evidence of each element exists, this Court must view the evidence presented before the trial court in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Conflicting testimony, contradictions, and discrepancies are factual determinations to be resolved by the jury and do not require dismissal. State v. Prush, 185 N.C.App. 472, 478, 648 S.E.2d 556, 560 (2007). However, whether substantial evidence exists with respect to each element of the charged offense is a question of law. State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433 (1956). Accordingly, we review the trial court's denial of Defendant's motion to dismiss de novo. See State v. McNeil, ––– N.C.App. ––––, ––––, 707 S.E.2d 674, 679 (2011).
To carry its burden on the statutory rape charges, the State must prove beyond a reasonable doubt that Defendant “engage[d] 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) (2011). With respect to the incest charges, the State must prove beyond a reasonable doubt that Defendant “engage[d] in carnal intercourse with [his] ... (ii) parent or child or stepchild or legally adopted child ... who is 13, 14, or 15 years old and [Defendant] is at least six years older than the child when the incest occurred.” N.C. Gen.Stat. §§ 14–178(a) & 14–178(b)(1) b. (2011). Finally, to carry its burden on the taking indecent liberties with children charges, the State must prove beyond a reasonable doubt that Defendant has “willfully take[n] or attempt [ed] to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire.” N.C. Gen.Stat. § 14–202.1(a)(1) (2011).
Defendant contends the State failed to produce substantial evidence of vaginal intercourse on the dates charged in indictments 08 CRS 67025 and 08 CRS 67028. We disagree.
File number 08 CRS 67025 indicts Defendant on charges of statutory rape, incest, and indecent liberties with a child “between and including the dates of April 1, 2008 and April 30, 2008.” File number 08 CRS 67028 indicts Defendant on the charges of statutory rape, incest, and indecent liberties with a child “between and including the dates of March 1, 2008 and March 31, 2008.” S.S. is the alleged victim with respect to these charges. At trial, S.S. testified that she lived with Defendant at Foxfire for four or five months prior to running away in July 2008. She described specific instances where Defendant engaged in vaginal intercourse with her in May 2008 and June 2008. She testified that these incidents of sexual abuse occurred “more than 5 times,” “[t]wice a month, three times a month,” and she “didn't feel it no more ‘cause it happened so many times.” While it is true that S .S. could not recall the date of these specific instances “there is considerable ‘[j]udicial tolerance of variance between the dates alleged and the dates proved in cases involving child sexual abuse. Unless a defendant demonstrates that he was deprived of the opportunity to present an adequate defense due to the temporal variance, the policy of leniency governs.’ “ State v. Ware, 188 N.C.App. 790, 795, 656 S.E.2d 662, 665 (2008) (citation omitted) (alteration in original).
Defendant contends the policy of leniency should not apply in this case because it applies only in cases involving young children. Defendant cites the fact that S.S. was fifteen years old when the alleged sexual abuse occurred and eighteen years old at the time of trial in support of this assertion. This argument is without merit. As Defendant himself concedes, “[l]eniency has been allowed in cases involving older children as well.” State v. McGriff, 151 N.C.App. 631, 635, 566 S.E.2d 776, 779 (2002). Moreover, this Court has specifically held the doctrine of leniency applicable in child sexual abuse cases involving a fifteen-year-old victim. See Ware, 188 N.C.App. at 795, 656 S.E.2d at 665 (“The victim was fifteen years old on all of the charged dates. Therefore, ‘the exact date that defendant had sex with [the victim] is immaterial because the evidence at trial showed that [the offenses] occurred ... when the victim was [fifteen years old].’ “ (citation omitted) (alterations in original)). Here, S.S. was fifteen years old at the time of the alleged sexual abuse, and the doctrine of leniency applies. S.S.'s age at the time of trial is irrelevant.
Defendant further contends that if the policy of leniency does apply, then he was deprived of the opportunity to present an adequate defense because he could have presented an alibi defense “but declined to so when he saw that specific incidents were not forthcoming.” Defendant's hollow assertion that he could “potentially” have presented an alibi for specific dates including and between 1 March 2008 and 30 April 2008, but “assumed” such testimony “to be unnecessary” is unpersuasive. See McGriff, 151 N.C.App. at 637, 566 S.E.2d at 780.
Viewing S.S.'s testimony in the light most favorable to the State, in conjunction with our Courts' policy of leniency, it is reasonable to conclude that Defendant engaged in sexual intercourse with S.S. throughout the four or five month period preceding S.S.'s departure from Foxfire in July 2008. This time period includes the months of March 2008 and April 2008. We hold this evidence was sufficient to submit the charges set forth in 08 CRS 67025 and 08 CRS 67028 to the jury, and the trial court correctly denied Defendant's motion to dismiss.
IV. Conclusion
For the foregoing reasons, we find no error.
No error.
Report per Rule 30(e).
Judges STEELMAN and GEER concur.