Opinion
No. 08-1031.
Filed April 21, 2009.
Appeal from the Wayne (07CRS55293).
Appeal by defendant from judgments entered 11 June 2008 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 23 March 2009.
Attorney General Roy Cooper, by Assistant Attorney General R. Kirk Randleman, for the State. Sofie W. Hosford for defendant-appellant.
Where defendant stipulated to his prior record level, the State presented sufficient evidence to support the trial court's finding of his prior record level. Where the trial court's failure to correctly fill out the appellate entries form was a clerical error, the trial court did not err when it declined to release defendant pending appeal. Where the date is not an essential element of the offense of indecent liberties with a minor, the indictments charging defendant were valid.
I. Factual and Procedural Background
Bobby Smith ("defendant") met the victim, B.R., in June of 2007, when B.R. was twelve years old and a middle school student. Defendant was nineteen years old at the time. B.R. was visiting a friend, and defendant lived with the friend's neighbors. When B.R. and her friend went to the neighbors' house to see another friend, B.R. met defendant.
B.R.'s mother met defendant in late June of 2007, when she and B.R.'s father gave him a ride to the grocery store. Defendant, who was adopted, told B.R.'s mother that he was depressed about his living situation, and she offered to help him. Shortly thereafter, defendant began regularly staying with B.R.'s family.
On 14 July 2007, B.R.'s mother invited defendant to spend the night at her home. During the evening, defendant kissed B.R. on the cheek while they were both sitting on the couch watching television. B.R. turned away, and defendant left the room about five minutes later.
Defendant continued to stay with B.R.'s family for the next several days. On Tuesday night, B.R., her brother, and defendant sat watching cartoons. After B.R.'s brother fell asleep, defendant sat closer and started talking to B.R. Defendant kissed B.R. on the mouth and laid down with her on top of him. In the initial encounter, defendant did not remove his clothes or B.R.'s clothes.
Later, defendant took B.R. into her grandfather's bedroom, and asked if he could have sex with her. Defendant put his hand up B.R.'s shirt, and B.R. told him "No." Defendant kept saying, "please," and continued to ask B.R. to have sex. Ultimately, B.R. and defendant had sex, and defendant told B.R. to be quiet and not to scream. After they had sex, defendant went back into the living room and began watching television again. The next week, late on Sunday night, a similar incident occurred. Defendant was in the living room and started kissing B.R. again. Defendant took off his clothes, and B.R. told him that she was on her cycle and could not have sex. Defendant said that he did not care, took off B.R.'s clothing, and had sex with her. B.R. began sleeping in her grandfather's room while her grandfather was out of town. Defendant came into the room on the next two nights and had sex with her. On the third night, when defendant came into the room to have sex with B.R., he told her that he wanted to impregnate her. B.R. and defendant also had oral sex.
After those encounters, B.R. went to visit a relative in Maryland. When B.R. returned to North Carolina, she stayed with her sister in a different house. B.R. told her sister what had occurred, and B.R.'s mother would not allow her to return to the house. At that point, the encounters with defendant stopped, although B.R. did speak to defendant on the phone from a friend's house. B.R.'s mother and a friend were listening to the call, and defendant admitted to having sex with B.R. during the call.
On 4 August 2007, however, B.R.'s mother allowed defendant to stay in the home one more night, and defendant had sex with B.R. again. On 8 August 2007, Detective Tammy Odom took a statement from B.R. in which she alleged that defendant had sex with her approximately seven times. Later that day, defendant gave a written statement to Detective Odom in which he admitted to having sex with B.R. On 3 December 2007, the Wayne County grand jury returned a twelve-count indictment against defendant. The indictment included four counts each of statutory rape, lewd and lascivious act, and indecent liberties with a minor. In the first indecent liberties count, the indictment alleged:
[T]hat from on or about the 12th day of July, 2007, up to and including the 4th day of August, 2007, in Wayne County Bobby Allen Smith did unlawfully, willfully and feloniously take and attempt to take immoral, improper and indecent liberties with [B.R.], who was under the age of 16 years at the time, for the purpose of arousing and gratifying sexual desire. At the time, defendant was over sixteen years of age and at least five years older than that child.
The language of the three other indecent liberties counts was identical, except that each also included a statement that the offense occurred after the previous offenses in the indictment, such as "this offense occurring after the offenses alleged in counts 1, 2, and 3 above[.]" The case came on for trial on 9 June 2008 in Wayne County Superior Court.
Defendant testified on his own behalf. Defendant was adopted out of an abusive family, and had not had a stable living situation before he came to live in B.R.'s friend's home. Defendant denied ever having sex with B.R. or making a statement to police in which he admitted to doing so. Defendant did, however, admit to kissing B.R.
Defendant made motions to dismiss all the charges at the end of the State's evidence and again after the presentation of all evidence. Those motions were denied. The trial court instructed the jury on four counts each of first-degree statutory rape and indecent liberties. The jury could not reach a unanimous verdict on the statutory rape counts, but found defendant guilty of four counts of indecent liberties with a minor.
At sentencing, the prosecutor told the trial court that defendant had a prior record level of II, and that the class of offense was F. In response, defense counsel told the court, "Your Honor, we don't object to the level offered by the State. It is an I/A block, Your Honor, and the defendant's been in custody for ten months now." The trial court entered four judgments, each imposing an active, presumptive range sentence of 15 to 18 months imprisonment. Three of these sentences were to run consecutively and one concurrently. Defendant appeals.
II. Prior Record Level
In his first argument, defendant contends that the State failed to meet its burden of proving his prior felony sentencing record level at sentencing. We disagree.
The State bears the burden of proving a defendant's prior conviction level through one of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
N.C. Gen. Stat. § 15A-1340.14(f) (2007). In making a prior record level finding, the trial court may rely exclusively on a stipulation of defense counsel. State v. Renfro, 174 N.C. App. 402, 410, 621 S.E.2d 221, 226 (2005). We note that in the instant case, the record does not contain a sentencing worksheet (AOC-CR-600). We are thus unable to discern whether the State and defendant entered into a written stipulation concerning defendant's prior convictions and record level. We thus look to the dialogue between counsel and the court to determine whether the statements constitute the requisite stipulation. State v. Alexander, 359 N.C. 824, 830, 616 S.E.2d 914, 918 (2005); see also State v. Wade, 181 N.C. App. 295, 298, 639 S.E.2d 82, 86 (2007) (citing State v. Cromartie, 177 N.C. App. 73, 80, 627 S.E.2d 677, 682 (2006)).
In the instant case, the following colloquy occurred during sentencing:
[Court]: What's the contention of the State as to classification of this offense?
[State]: Classification, as far as his sentencing level?
[State]: Yes, sir.
[State]: He would be a Level II for sentencing purposes.
[Court]: What's the class?
[State]: Class F.
[Court]: Class F. What's the prior record level?
[State]: Level II.
[Court]: What says _ what says the defense?
[Defense]: Your Honor, we don't object to the level offered by the State . . .
Defense counsel further acknowledged that defendant's prior record would place him in an "I/A block" on the structured sentencing grid, which is correct for defendant's prior record, II, and the class of offense, F. See N.C. Gen. Stat. § 15A-1340.17(c) (2007). We hold that counsel's statements to the court constituted a stipulation as to defendant's prior record level, satisfying the requirements of N.C. Gen. Stat. § 15A-1340.14(f)(1) (2007). See Alexander at 830, 616 S.E.2d at 918.
This argument is without merit.
III. Release Pending Appeal
In his second argument, defendant contends that the trial court erred when it declined to release him pending appeal, and failed to mark that it had denied defendant an appeal bond on the appellate entries form. We disagree.
"A defendant whose guilt has been established in the superior court and is either awaiting sentence or has filed an appeal from the judgment entered may be ordered released upon conditions in accordance with the provisions of this Article." N.C. Gen. Stat. § 15A-536(a) (2007) (emphasis added). The statute "permits but does not require a judge to order release of a convicted defendant pending appeal. The matter of granting or denying post-trial bond is within the trial court's discretion." State v. Keaton, 61 N.C. App. 279, 283, 300 S.E.2d 471, 473 (1983) (citation omitted). In the instant case, following the conclusion of the sentencing hearing, the trial court stated "the defendant's in your custody, Mr. Bailiff." This statement demonstrates that the court exercised its discretion pursuant to N.C. Gen. Stat. § 15A-536 and declined to release defendant pending appeal. Defendant did not request an appeal bond. To the extent that the trial court erred by failing to mark the box on the appellate entries form, we hold that this was a clerical error, and was inconsistent with the trial court's intent as demonstrated in the trial transcript. See State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (2000).
This argument is without merit.
IV. Indictment
In his third argument, defendant contends that the indictment charging him with four counts of indecent liberties was invalid because it did not sufficiently differentiate between the offenses by specifying the dates. We disagree.
A person is guilty of indecent liberties if he is at least sixteen years old and at least five years older than the victim, and he:
(1) Willfully takes or attempts 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; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (2007). A valid indictment must put a defendant on notice of the charges he faces and provide him protection against double jeopardy. See State v. Fuller, 179 N.C. App. 61, 632 S.E.2d 509 (2006). A criminal pleading 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) (2007).
Unless the date given in a bill [of] indictment is an essential element of the crime charged, the general rule in North Carolina, particularly in child sex abuse cases, is that an indictment is sufficient to charge a defendant with the specific statutory offense if it quotes the operative language of the statute.
State v. Blackmon, 130 N.C. App. 692, 693, 507 S.E.2d 42, 43 (1998). The date is not an essential element of the offense of indecent liberties with a minor. Id.
Here, the indictment adequately put defendant on notice of the essential elements of four counts of indecent liberties and provided him with protection against double jeopardy. Indictments for indecent liberties need not specify the exact date of the offense, and the indictment here provided a sufficiently specific range of dates as well as the order in which the incidents occurred. Id. Thus, we find no error.
NO ERROR. Judges HUNTER, Robert C. and JACKSON concur.
Report per Rule 30(e).