Opinion
No. COA03-13
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgment entered 30 July 2002 by Judge W. Osmond Smith, III in Person County Superior Court. Heard in the Court of Appeals 6 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State. Jarvis John Edgerton, IV, for defendant-appellant.
Person County No. 01 CRS 5254.
Defendant John D. Allen appeals his conviction and sentence for first degree sexual offense and taking indecent liberties with a minor child. We find no error.
Defendant first claims that there is a "fatal variance" between the date of the offense charged in the indictment and the State's proof at trial regarding the date of the offense. We disagree.
Under N.C. Gen. Stat. § 15A-924(a)(4) (2001), an indictment must contain a statement "indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time." The statute further provides, however, that an error in the date alleged in an indictment will not require reversal of a conviction "if time was not of the essence with respect to the charge and the error did not mislead the defendant to his prejudice." Id.
The date or time of an offense is generally not an essential element of the crime. State v. Whittemore, 255 N.C. 583, 592, 122 S.E.2d 396, 403 (1961). Moreover, "[i]n sexual abuse cases involving young children, some leniency surrounding the child's memory of specific dates is allowed." State v. Stewart, 353 N.C. 516, 518, 546 S.E.2d 568, 569 (2001). Unless defendant demonstrates an actual impairment of his ability to present a defense, the indictment's error or lack of specificity as to the date of the offense will not be a ground for relief on appeal. Id.
The indictment in this case specified the two-month period of "March-April 2001" as the date "on or about" which the offense occurred. The child testified on direct examination that the incident took place some time after her eighth birthday (on 31 March 2001) and after Easter. On cross-examination, the child also testified that she believed the assault occurred in May. Donna Potter, a clinical social worker who interviewed the child about the incident on 29 May 2001, testified that the child indicated that it occurred "last week." Ms. Potter explained that children "tend to group, like it happened yesterday, last week, and last year as sort of it happened a long time ago, a little bit a time ago, really recently, or like, you know, just today kind of thing." Ms. Potter clarified with the child that she meant the incident had happened "not so long ago." Nan Tyree, a DSS Child Protective Services Investigator, testified that she began her investigation and interviewed the child on 3 May 2001, suggesting that the incident occurred, at the latest, on the night of 2 May 2001, a date within very close temporal proximity of "March-April 2001."
Defendant argues that because of the variance, he was deprived of a meaningful opportunity to present an alibi defense. At trial, defendant did not attempt to present an alibi defense for the two — month period of March and April 2001 and he has not demonstrated how he was prevented from offering such a defense by the, at most, two-day extension of the time frame. As in State v. McGriff, 151 N.C. App. 631, 636, 566 S.E.2d 776, 779 (2002), "defendant offered no alibi defense for the dates originally alleged in the indictment, nor for the . . . dates shown by the evidence. In fact, defendant presented no evidence at all." Accordingly, defendant has failed to show that he was misled or prejudiced by the alleged discrepancy. Id. at 637, 566 S.E.2d at 780.
Defendant next challenges the trial court's finding at sentencing of the aggravating factor that he took advantage of a position of trust and confidence to commit the offense. See N.C. Gen. Stat. § 15A-1340.16(d)(15) (2001). A finding of this aggravating factor requires evidence "of a relationship between the defendant and victim generally conducive to reliance of one upon the other." State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216, 218 (1987).
The State's evidence tended to show that defendant came to the child's residence to visit her mother every night for more than a year prior to the incident. During this time, defendant played games and watched movies with the child, who was eight years old. On the night of the offense, defendant was left alone with the child and her sister while their mother went to the grocery store. Defendant took advantage of this opportunity to sexually assault the child while she slept. These facts are sufficient to support the aggravating factor found by the trial judge. See State v. McGuire, 78 N.C. App. 285, 293, 337 S.E.2d 620, 625 (1985) (aggravating factor properly found when defendant was babysitting); McGriff, 151 N.C. App. at 640, 566 S.E.2d at 782 (aggravating factor properly found when defendant often alone with victim in house over two month period).
For his final argument, defendant contends that the trial court improperly denied him the right to cross-examine the State's witness Donna Potter, a licensed clinical social worker at Duke University's Center of Child and Family Health, about information she obtained while evaluating the child. We disagree.
On direct examination, Ms. Potter testified that she met with the child briefly on 21 May 2001 and again on 29 May 2001. On 21 May 2001, they did not specifically discuss the incident with defendant. Ms. Potter scheduled a follow-up meeting for 29 May to pursue "a number of concerns that [she] had from the information [the child] had provided on the 21st." Ms. Potter then testified that at the 29 May 2001 meeting, the child described the sexual assault to her.
On cross-examination, defendant asked Ms. Potter about a trauma symptom checklist that she had administered to the child and established that Ms. Potter believed the child had "hyper — responded" or exaggerated her responses. Defendant then sought to elicit from Ms. Potter information she had heard when interviewing other family members such as claims of drug use by the mother in the house and suggestions that the child may have seen the mother engaging in sexual activity. None of this information was first — hand. The trial court refused to allow defendant to question Ms. Potter in front of the jury regarding this information.
Defendant does not dispute that the information the trial court excluded would ordinarily constitute inadmissible hearsay. Defendant argues, however, that the evidence was admissible and relevant as a means of probing Ms. Potter's opinions as an expert witness. Defendant is correct that under Rules 703 and 705 of the Rules of Evidence, a party may cross-examine an expert witness regarding "the underlying facts and data used by [the] expert in reaching his expert opinion. . . ." State v. Golphin, 352 N.C. 364, 468, 533 S.E.2d 168, 235 (2000) (internal quotation marks omitted), cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001). The proposed testimony does not, however, come within the scope of Rules 703 and 705.
The State did not expressly tender Ms. Potter as an expert witness. More importantly, on direct examination, Ms. Potter offered no opinions at all. She simply recounted the child's prior statement about the incident in order to corroborate the child's in-court testimony. See State v. Gell, 351 N.C. 192, 204, 524S.E.2d 332, 340 ("[A] witness' prior consistent statements may be admitted to corroborate the witness' sworn trial testimony. . . ."), cert. denied, 531 U.S. 867, 148 L.Ed.2d 110 (2000).
In arguing that Ms. Potter expressed an opinion during direct examination, defendant points only to Ms. Potter's explanation as to why she met with the child again on 29 May 2001: "It was a follow-up. There were a number of concerns that I had from the information she had provided on the 21st. One of the things had been that she had described she was currently living with her grandmother, but she didn't want to talk about why, and she agreed she would come back and talk about that on another day." Ms. Potter did not state what the concerns were or elaborate further.
While it is questionable whether this explanation constituted an opinion within the meaning of Rules 703 and 705, defendant's brief on appeal reveals that his cross-examination questions were designed not to probe Ms. Potter's "concerns," but rather her "Report, her Trauma Checklist, and their respective conclusions." On direct examination, however, Ms. Potter never testified regarding her report, the trauma checklist, or any of her conclusions. They were the subject instead of defense counsel's cross-examination.
As our Supreme Court has stated, when a witness testifies to the facts that are the basis for his or her opinion, "such testimony is not hearsay because it is not offered for the truth of the matter, but to show the basis of the opinion." State v. Robinson, 330 N.C. 1, 25, 409 S.E.2d 288, 302 (1991). Here, however, defendant was not attempting to bolster an opinion by exploring its basis or to undermine an opinion by demonstrating the weakness of its underpinnings. Instead, defendant sought to admit Ms. Potter's hearsay testimony of drug use and sexual activity for the truth of the matter asserted. Under those circumstances, the trial court correctly found the testimony inadmissible. Id. at 26, 409 S.E.2d at 302 (testimony of an expert regarding an experiment was inadmissible under Rule 703 when "the evidence would have been admitted to prove the truth of the matter asserted and, in this context, would be inadmissible hearsay.").
The record on appeal contains additional assignments of error not addressed in defendant's brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).