Opinion
No. COA10-1198
Filed 19 April 2011 This case not for publication
Carteret County No. 09 CRS 54961.
Appeal by defendant from judgment entered 5 May 2010 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State. Geoffrey W. Hosford, for defendant-appellant.
Jeffrey Allan Gill ("defendant") appeals from a judgment based upon a jury verdict finding him guilty of indecent liberties with a child. We find no error.
I. Background
On 14 February 2 009, fourteen-year-old "Bonnie" was visiting the home of defendant, who is Bonnie's uncle by marriage. Defendant invited Bonnie into his bedroom for a massage and asked her to lay fully clothed on her stomach. Defendant gradually removed all of Bonnie's clothes until she was completely naked. Defendant massaged Bonnie's breasts, stomach, legs, the area above her vagina, and her "private parts" with oil. He also kissed her breasts and the area above her vagina. When the massage was finished, Bonnie dressed and returned to the living room.
"Bonnie" is a pseudonym used to protect the identity of the minor child victim.
Approximately two to three months later, defendant went to Bonnie's house and offered to give her another massage. Defendant pulled up Bonnie's shirt and began to massage her back. Defendant's "massage" was interrupted when one of Bonnie's sisters entered the room and asked defendant what he was doing. On four or five other occasions defendant also gave Bonnie massages consistent with the first massage, starting with Bonnie fully clothed and ending with her completely naked.
In the summer of 2009, Bonnie was visiting her cousins at defendant's home. Bonnie was taking a shower when defendant, completely naked, entered the shower with her. In the early fall of 2009, defendant asked Bonnie to pose nude for photographs he said he needed to take for a class project. Bonnie lay naked on the bed while defendant took the photographs.
On 18 September 2009, defendant took Bonnie to a high school football game. Shortly after halftime, they left the game and drove to a park where they subsequently played a game of truth or dare. During the game, defendant dared himself to strip naked and run down the road. Later, while sitting in a dugout, defendant dared Bonnie to kiss him. Bonnie kissed defendant on the lips. Defendant then dared Bonnie to kiss him again. Defendant kissed her and inserted his tongue into her mouth, causing Bonnie to back away from him.
Defendant subsequently asked Bonnie to remove her clothes. Bonnie told him that she was too drunk and afraid she might fall. Defendant then assisted her in removing her clothes. Thereafter, Bonnie could only remember sliding naked down a slide, being in defendant's truck, returning to his house, and vomiting. After this incident, Bonnie confided in her church youth pastor about what defendant had done to her in the preceding months. Bonnie subsequently told her story to a police detective and a social worker.
Defendant was arrested and indicted for one count of taking indecent liberties with a child. Beginning 3 May 2010, defendant was tried by a jury in Carteret County Superior Court. After the jury was empaneled, the State moved to amend the starting date of the offense in defendant's indictment to indicate that the offense charged began on 14 February 2009, instead of 14 May 2009. The trial court allowed the motion over defendant's objection.
During a lunch recess, two jurors were seen asking two of the State's witnesses for directions to a nearby fast food restaurant. When court resumed, the trial court questioned these witnesses and determined that their interactions with the jurors were innocuous. When the jury returned, the trial court instructed them that they were to avoid contact with individuals involved with the case.
On 5 May 2010, the jury returned a verdict finding defendant guilty of taking indecent liberties with a child. The trial court sentenced defendant to a minimum of sixteen months to a maximum of twenty months in the North Carolina Department of Correction. Defendant appeals.
II. Amendment of Indictment
Defendant argues that the trial court erred by allowing the State to amend the starting date of the offense in defendant's indictment. We disagree.
Although N.C. Gen. Stat. § 15A-923(e)(2009) provides that an indictment may not be amended, our Courts have construed this prohibition "to mean only that an indictment may not be amended in a way which `would substantially alter the charge set forth in the indictment.'" State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994) (quoting State v. Carrington, 35 N.C. App. 53, 240 S.E.2d 475 (1978)). "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. Smith, 180 N.C. App. 86, 92, 636 S.E.2d 267, 271 (2006) (internal quotations and citation omitted). "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. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984).
In the instant case, defendant has not shown that his defense was prejudiced by the amendment of the indictment. The State informed the trial court that all of the discovery it had provided to defendant indicated that the alleged offense was considered to have begun with events that occurred on 14 February 2009. When the trial court informed the parties that it would grant a mistrial if the evidence presented at trial deprived defendant of the ability to adequately present his defense, defendant's counsel acknowledged that, "I don't think it will, Judge." Indeed, defendant did not deny that he was with Bonnie during the events in question; his defense was that no indecent liberties had occurred while the two were together. Since the amendment did not substantially alter the charge set forth in the indictment, the trial court properly granted the State's motion to amend. This argument is overruled.
III. Mistrial
Defendant argues that the trial court erred by failing to declare a mistrial ex mero motu after one or more jurors spoke to two of the State's witnesses during a lunch recess. We disagree.
Immediately before releasing the jurors for a lunch recess, the trial court instructed the jurors, inter alia, not to have "contact with the Court, the parties, the lawyers, the witnesses." After the lunch recess was over, defendant's counsel notified the trial court that defendant saw two of the State's witnesses talking to jurors during the lunch recess. The trial court questioned the two witnesses identified by defendant and ascertained that two men riding in a red vehicle stopped and asked the two witnesses for directions to "a fast food place." One of the witnesses stated that he gave the men directions to three possible restaurant choices. The other witness said she did not speak to the men. The trial court then offered defendant the opportunity to question the witnesses. Defendant's counsel responded, "If that was the extent of the conversation, no, sir."
When the jurors returned to the courtroom, the trial court instructed the jurors as follows:
Ladies and gentlemen, I hate to even broach this but my instructions to you at every recess includes not to have any contact with the Court, the parties, the lawyers or the witnesses. That's not just about idle chatter. It's not just about how is the weather, it's going to rain. It's about contact. I must insist that you follow those instructions to the letter of the law least [sic] you be held in contempt of this Court.
Fair trials are the order of the day in this country. The perception of it must be beyond reproach. We must not have even the appearance of impropriety and that's all I'm going to say about it.
The decision to grant a mistrial is discretionary and "is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982). When juror misconduct is alleged, "the trial judge is in a better position to investigate such allegations and make appropriate findings. Therefore, it is well settled that the trial court's determination on the question of juror misconduct will not be reversed on appeal unless it is clearly an abuse of discretion." State v. Harris, 145 N.C. App. 570, 577, 551 S.E.2d 499, 504 (2001).
In the instant case, defendant did not make a motion for a mistrial. On appeal, defendant contends that it was plain error for the trial court not to grant a mistrial on its own motion. However, our Courts have made clear that plain error review is only available for arguments regarding the admissibility of evidence or jury instructions and refused to extend such review to a trial court's alleged failure to grant a mistrial ex meru moto. See State v. Verrier, 173 N.C. App. 123, 128-29, 617 S.E.2d 675, 679 (2005); State v. Lee, 189 N.C. App. 474, 481-82, 658 S.E.2d 294, 300 (2008). Accordingly, defendant has failed to preserve this issue for appellate review and it is not properly before this Court.
Moreover, it is clear that the trial court did not abuse its discretion by not declaring a mistrial. Upon learning of the allegation of juror misconduct, the trial court examined the witnesses involved in the incident and determined that the conversation between the jurors and the witnesses was benign and unrelated to the trial proceedings. Defendant's counsel declined to question the witnesses further. In addition, the trial court reiterated its instructions to the jurors regarding not having any contact with witnesses. Furthermore, the trial court threatened to hold any offending juror in contempt of court for noncompliance. Thus, it was unnecessary for the trial court to declare a mistrial. This argument is overruled.
IV. Conclusion
The trial court properly allowed the State to amend defendant's indictment. Additionally, the trial court did not abuse its discretion by not declaring a mistrial ex mero motu after allegations of juror misconduct. Defendant received a fair trial, free from error.
No error.
Judges STEELMAN and STROUD concur.
Report per Rule 30(e).