State v. Davey
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-1177 NORTH CAROLINA COURT OF APPEALS Filed: 17 June 2014 STATE OF NORTH CAROLINA v. Cleveland County Nos. 12 CRS 002486-96, 12 CRS 053213-14 REX REED DAVEY, Defendant. Appeal by defendant from judgments entered 18 March 2013 by Judge Eric L. Levinson in Cleveland County Superior Court. Heard in the Court of Appeals 7 April 2014. Roy Cooper, Attorney General, by David N. Kirkman, Special Deputy Attorney General, for the State. Michael E. Casterline, for defendant-appellant. MARTIN, Chief Judge. Defendant Rex Reed Davey appeals from judgments entered upon jury verdicts finding him guilty of one count of firstdegree sexual offense with a child and twelve counts of taking indecent liberties with a child. We find no error in defendant s trial. On 11 June 2012, defendant was indicted for first-degree -2sexual offense with a child and taking indecent liberties with a child for offenses allegedly committed against S.M. Defendant was indicted on eleven more charges of taking indecent liberties with a child, on 13 August 2012, for offenses committed against J.M. and C.M. years earlier. allegedly The matters were joined for trial, and the State presented J.M., C.M., and S.M. as witnesses. Defendant testified and denied the allegations. At the close of all of the evidence presented at trial, the State moved to amend the indictments to offense dates alleged in 1 January 1991 through nine of the thirteen September 1994. Over defendant s objection, the trial court granted the motion. On 18 March 2013, the jury convicted defendant of the charges and the trial court imposed an active sentence of 254 to 314 months, with a suspended sentence and period of probation to follow the active sentence. sex offender. Defendant was also ordered to register as a Defendant appeals. _________________________ On appeal, defendant argues the trial court erred by: allowing impermissible expert Christopher Cerjan, and amend alleged offense the indictments. (II) opinion allowing dates in (I) testimony by Dr. State s motion to the nine of the thirteen -3I. Defendant first argues the trial court erred in allowing Dr. Cerjan to testify as to the various ways victims of child sexual abuse report their abuse. Specifically, defendant contends the testimony was introduced by the State without a proper foundation and improperly bolstered the credibility of the alleged victims. We disagree. We review the admissibility of expert opinion testimony for an abuse of discretion. State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). In a sexual abuse case involving a child victim, an expert may testify, upon proper foundation, as to the characteristics of sexually abused children and whether an alleged victim exhibits such characteristics. State Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002). v. The proponent of such testimony must lay a foundation establishing that the expert witness possesses the necessary educational and experiential characteristics alleged victim qualifications of sexually exhibits to abused those testify children as and characteristics. to the whether an State v. Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 622, disc. review denied, __ N.C. __, 747 S.E.2d 548 (2013). Where the expert testimony is based on a proper foundation, [t]he fact that this -4evidence may support the credibility of the victim does not alone render it inadmissible. State v. Treadway, 208 N.C. App. 342 286, 293, 702 S.E.2d 335, (2010) (alteration in original) (quoting State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d 359, 367 (1987)), disc. review denied, 365 N.C. 195, 710 S.E.2d 35 (2011). Dr. Cerjan was accepted as an expert witness in the field of pediatrics and child abuse without objection from defendant. Defendant expert does in the not dispute field. Dr. The Cerjan s State, qualification therefore, laid a as an proper foundation for Dr. Cerjan s testimony regarding the various ways victims of child sexual abuse disclose their abuse. Ragland, __ N.C. App. at __, 739 S.E.2d at 622. See Because Dr. Cerjan s testimony was based upon a proper foundation, it is of no consequence that the credibility of the victims. 702 S.E.2d at 342. testimony may have supported the See Treadway, 208 N.C. App. at 293, This argument is therefore without merit. II. Defendant next argues the trial court erred in allowing the State s motion to amend the offense dates alleged in nine of the thirteen indictments to 1 January 1991 through September 1994. Defendant contends the amendments constituted a substantial change in the charges and deprived him of a fair opportunity to -5present a defense. We disagree. We review a trial court s granting of the State s motion to amend an indictment de novo. State v. White, 202 N.C. App. 524, 527, 689 S.E.2d 595, 596 (2010). Although N.C.G.S. ยง 15A-923(e) prohibits the amendment of an indictment, [a] change of the date of the offense is permitted if the change does not substantially alter the offense as alleged in the indictment. State v. Wallace, 179 N.C. App. 710, 716, 635 S.E.2d 455, 460 (2006), appeal dismissed and disc. review denied, 361 N.C. 436, 649 S.E.2d 896 (2007). In sexual offense cases involving child victims, we follow a policy of leniency with respect to temporal specificity in indictments. State v. Burton, 114 N.C. App. 610, 613, 442 S.E.2d 384, 386 (1994); see also State v. McGriff, 151 N.C. App. 631, 637, 566 S.E.2d 776, 780 (2002) (concluding that the change of the date in the indictment for statutory rape and taking indecent liberties with a child to expand the time frame did not substantially alter the charges set forth in the indictment). that he was specificity, As a result, [u]nless the defendant demonstrates deprived this of policy his of defense leniency because of of State governs. lack v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991). In the case sub judice, the trial court allowed the State to amend the offense dates alleged in nine of the thirteen -6indictments to reflect an offense period beginning on 1 January 1991 and ending on September 1994. Seven of the indictments that were amended originally alleged offense periods beginning on 1 January 1991 and ending in either 1991, 1992, or 1993. Relying on stationed his testimony outside the that State he from was 1988 in the until military 1991, and defendant contends the amendments to these seven indictments impaired his ability to prepare and present an alibi defense. beginning rather, dates only of the these end offense dates of periods these were offense However, the not amended; periods were uniformly changed to September 1994 to expand the time frames. Therefore, because defendant was provided sufficient notice of the beginning date of the alleged offenses, his alibi defense, if any, should have addressed all of 1991. did not present discharged from any the evidence military. as to Under Defendant, however, when in these 1991 he was circumstances, defendant s attempt to assert his reliance on an alibi defense is untenable. Furthermore, we are unpersuaded by defendant s contention that discrepancies in the victims accounts and estimations of the alleged offense dates severely undercut his defense. Any discrepancy in the victims testimony only goes to the weight of the testimony and does not demonstrate that the amendments to -7the alleged offense dates in the indictments defendant s ability to present a defense. App. at 613, 442 S.E.2d at 386 impaired See Burton, 114 N.C. ( Children frequently cannot recall exact times and dates; accordingly, a child s uncertainty as to the time of the offense goes only to the weight to be given that child s testimony. ). We therefore conclude the amendments to the alleged offense dates in the indictments, as permitted by the trial court, did not substantially alter the charges against defendant nor did they impair his ability to prepare and present a defense. No Error. Judges McGEE and CALABRIA concur. Report per Rule 30(e).
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