State v. Davey ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 first-
degree 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
-2-
sexual 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 allegedly
committed against J.M. and C.M. years earlier. 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 offense dates alleged in nine of the thirteen
indictments to 1 January 1991 through 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. Defendant was also ordered to register as a
sex offender. Defendant appeals.
_________________________
On appeal, defendant argues the trial court erred by: (I)
allowing impermissible expert opinion testimony by Dr.
Christopher Cerjan, and (II) allowing the State’s motion to
amend the alleged offense dates in nine of the thirteen
indictments.
-3-
I.
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 v.
Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002). The
proponent of such testimony must lay a foundation establishing
that “the expert witness possesses the necessary educational and
experiential qualifications” to testify as to the
characteristics of sexually abused children and whether an
alleged victim exhibits those characteristics. 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
-4-
evidence may support the credibility of the victim does not
alone render it inadmissible.’” State v. Treadway, 208 N.C.
App. 286, 293, 702 S.E.2d 335, 342 (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 does not dispute Dr. Cerjan’s qualification as an
expert in the field. The State, therefore, laid a proper
foundation for Dr. Cerjan’s testimony regarding the various ways
victims of child sexual abuse disclose their abuse. See
Ragland, __ N.C. App. at __, 739 S.E.2d at 622. Because Dr.
Cerjan’s testimony was based upon a proper foundation, it is of
no consequence that the testimony may have supported the
credibility of the victims. See Treadway, 208 N.C. App. at 293,
702 S.E.2d at 342. 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
-5-
present 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. § 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). As a result, “[u]nless the defendant demonstrates
that he was deprived of his defense because of lack of
specificity, this policy of leniency governs.” State 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
-6-
indictments 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 his testimony that he was in the military and
stationed outside the State from 1988 until 1991, defendant
contends the amendments to these seven indictments impaired his
ability to prepare and present an alibi defense. However, the
beginning dates of these offense periods were not amended;
rather, only the end dates of these offense 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. Defendant, however,
did not present any evidence as to when in 1991 he was
discharged from the military. Under these 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
-7-
the alleged offense dates in the indictments impaired
defendant’s ability to present a defense. See Burton, 114 N.C.
App. at 613, 442 S.E.2d at 386 (“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).