Opinion
No. COA11–1085.
2012-04-17
STATE of North Carolina v. Francisco Javier PIZANO–TREJO.
Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant.
Appeal by Defendant from judgments entered 23 March 2011 by Judge Robert F. Floyd, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 9 February 2012. Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant.
BEASLEY, Judge.
Francisco Javier Pizano–Trejo (Defendant) appeals from his conviction on two counts of indecent liberties with a minor and one count of sexual offense. For the following reasons, we vacate in part, remand in part, and affirm in part.
Defendant was indicted for one count of first degree statutory sexual offense pursuant to N.C. Gen.Stat. § 14–27.4(a)(1), and two counts of taking indecent liberties with a minor pursuant to N.C. Gen.Stat. § 14–202.1(a)(1). However, the trial court instructed the jury on the crime of sexual offense with a child pursuant to N.C. Gen.Stat. § 14–27.4A. Defendant was found guilty of both counts of taking indecent liberties with a child and one count of first degree statutory sex offense pursuant to N.C. Gen.Stat. § 14–27.4(a)(1). Defendant was sentenced to 192–240 months incarceration, was ordered to register as a lifetime sex offender, and to enroll in lifetime satellite based monitoring.
Defendant asserts that the trial court committed plain error by instructing the jury, and accepting its verdict of guilty, for the offense of “sexual offense with a child,” a crime for which defendant was not indicted. We agree.
The offense description in the judgment and commitment is “first degree sex offense child” but the statute referenced is “14–27.4(A)(1),” which is the correct statutory reference for first degree statutory sexual offense, although it should be written as 14–24.4(a)(1). Both the indictment and verdict form listed “first degree statutory sexual offense” as the crime charged.
“When [ ] an issue is not preserved in a criminal case, we apply plain error review.” State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006). “We find plain error only in exceptional cases where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” Id. (internal quotation marks and citations omitted).
“It has long been the law of this State that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment.” State v. Williams, 318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986) (citations omitted). As our Supreme Court stated in Williams,
[t]he requirements of a valid indictment are that it be sufficiently certain in the statement of the accusation so as to identify the offense with which the accused is charged; to protect the accused from being twice put in jeopardy for the same offense; to enable the accused to prepare for trial and to enable the court on conviction or plea of guilty to pronounce sentence according to the rights of the case.
Id. at 630, 350 S.E.2d at 357 (citation omitted). Additionally, “[a]n indictment that does not accurately and clearly allege all of the elements of the offense is inadequate to support a conviction.” Id. at 631, 350 S.E.2d at 357. “Finally, the failure of the allegations to conform to the equivalent material aspects of the jury charge represents a fatal variance, and renders the indictment insufficient to support that resulting conviction.” Id.
In the case sub judice, Defendant was indicted, inter alia, for first degree statutory sexual offense pursuant to N.C. Gen.Stat. § 14–27.4(a)(1). However, the jury was instructed on the charge of sexual offense with a child under N.C. Gen.Stat. § 14–27.4A. The jury was instructed as follows,
[i]n 09 CRS 57918, count one, the defendant has been charged with sexual offense with a child .... For you to find the defendant guilty of this offense, the state must prove three things beyond a reasonable doubt. First, that the defendant engaged in a sexual act with the victim.... Second, that at the time of the act, the victim was a child under the age of 13 years and, third, that at the time of the act, the defendant was at least 18 years of age. (emphasis added).
These instructions are proper for charging the jury on sexual offense with a child pursuant to N.C. Gen.Stat. § 14–27.4A, which requires a separate age requirement than the crime charged in the indictment. As such, these instructions are not proper for instructing the jury on first degree statutory sexual offense under N.C. Gen.Stat. § 14–27.4(a)(1).
In State v. Bowen, 139 N.C.App. 18, 533 S.E.2d 248 (2000), our Court directly addressed this issue. In Bowen, the trial court charged the jury on sex offense pursuant to N.C. Gen.Stat. § 14–27.7A where the defendant had not been indicted for this offense. Id. at 24, 533 S.E.2d at 252. The defendant was actually indicted for first degree sexual offense under N.C. Gen.Stat. § 14–27.4. Id. The Court found that the key difference between the two offenses was the age requirement of the defendant. Because the elements of the offenses differed, this Court held that “the defendant lacked notice of the charge against him.” Id. at 25, 533 S.E.2d at 253. This Court ultimately found “the indictment under which [the] defendant was brought to trial [could not] be considered valid and any judgment made thereon, must be vacated.” Id. (citation omitted).
Applying the rule in Williams and Bowen, we hold that the trial court's failure to charge the jury on the elements of first degree sex offense, the offense listed in the indictment, amounts to a dismissal of the charge. We would recommend that the General Assembly consider rewording these statutes and/or changing the names of these very similar, but different, offenses, as the similarity in the statute numbers and titles appear to be creating confusion and errors which most unfortunately lead to the necessity of vacating a conviction for a serious crime based solely upon this “technicality .” Accordingly, we vacate Defendant's sex offense conviction.
Defendant also argues that the order imposing lifetime satellite based monitoring and lifetime sex offender registration must be vacated in part and remanded in part. We agree.
“[W]e review the trial court's findings of fact to determine whether they are supported by competent record evidence, and we review the trial court's conclusions of law ... to ensure that those conclusions reflect a correct application of law to the facts found.” State v. Kilby, 198 N.C.App. 363, 367, 679 S.E.2d 430, 432 (2009) (citation omitted). Because the imposition of lifetime satellite-based monitoring was based upon Defendant's conviction for sex offense with a child, we also vacate the trial court's order imposing lifetime satellite monitoring.
Under N.C. Gen.Stat. § 14–208.6A (2011), lifetime sex offender registration is required for individuals who are sexually violent predators, who are recidivists, or who have committed an aggravated offense. The State concedes that the trial court found that Defendant was not a sexually violent predator or a recidivist, and did not commit an aggravated offense, and the trial court erred in checking the “lifetime sex offender registration” box on the sentencing form. “When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction ....“ State v. Smith, 188 N.C.App. 842, 845, 656 S.E.2d 695, 696 (2008). Accordingly, the matter must be remanded for correction of this clerical error.
Defendant argues that the trial court committed plain error by allowing witnesses to testify about his marijuana possession and use where this testimony was irrelevant to the crimes charged. We disagree.
Under plain error review, “the Court must find error, and that if not for the error, the jury would likely have reached a different result.” State v. Ramirez, 156 N.C.App. 249, 256, 576 S.E.2d 714, 720 (2003). Because we vacate the sex offense conviction, we review the record to determine if the admission of the evidence prejudiced Defendant on the two convictions for indecent liberties with a minor.
Even assuming arguendo that the testimony concerning Defendant's prior use and possession of marijuana was error, Defendant is unable to show that the admission of this testimony was prejudicial where the State presented substantial evidence of the offense.
The elements of indecent liberties with a minor are
(1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.
State v. Martin, 195 N.C.App. 43, 50, 671 S.E.2d 53, 59 (2009) (citation omitted). The State's evidence showed that at the time of the offenses Defendant was 28 years old and the victim was 11 years old; and on separate occasions Defendant kissed the victim on the mouth, touched her vagina, penetrated her with his finger, and forced his penis in her mouth. Based on the foregoing, the State presented substantial evidence supporting the two convictions for indecent liberties with a minor and Defendant's final argument is overruled.
Vacated in part; Remanded in part; and Affirmed in part. Judges STEPHENS and STROUD concur.
Report per Rule 30(e).