State v. Wood , 311 N.C. 739 ( 1984 )

319 S.E.2d 247 (1984) 311 N.C. 739

STATE of North Carolina
v.
Dennis Kyle WOOD.

No. 539A83.

Supreme Court of North Carolina.

August 28, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Gordon, Greenville, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant-appellant.

COPELAND, Justice.

Defendant first contends that the evidence was insufficient to convict him of first degree rape inasmuch as the State failed to prove that the rape occurred on 18 April as alleged in the indictment.

Defendant correctly points out that the victim, a nine year old child, was unable to testify with certainty as to the date of the offense. She testified that it was on a weekend sometime prior to the Memorial Day weekend offenses and that she was still in school. We have stated repeatedly that in the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child's uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). See: State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984). Nonsuit may not be allowed on the ground that the State's evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense. Id.

We do not have here a situation wherein defendant's alibi defense was affected by the State's inability to prove conclusively that the offense occurred on 18 April. State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961). See: State v. Christopher, 307 N.C. 645, 300 S.E.2d 381 (1983). Following the presentation of evidence, the trial judge ruled and later instructed the jury that in light of the defendant's evidence of an alibi, the State would be held to prove that the offense occurred on or about 18 April. Having been given the benefit of this instruction and an opportunity to present alibi evidence for 18 April, which evidence the jury chose to disbelieve, defendant appears to be arguing that these circumstances now require conclusive proof that the offense occurred on 18 April, proof not normally necessary and not normally possible where the victim is a child. We reject this argument. To force the State to admit of a date certain in order to accommodate defendant's alibi evidence, and then by convoluted reasoning to suggest that failure to prove the offense occurred on that specific date is fatal to the State's case, would clearly frustrate the State's efforts to convict on sex related offenses involving young children. The assignment of error is overruled.

Defendant next contends that the trial judge erred in failing to submit the lesser included offense of attempt to commit first degree rape. He alleges that the evidence was inconclusive as to the element of penetration. Defendant failed to request the instructions at trial and therefore concedes that our review is limited to finding plain error. See: State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).

We deem it unnecessary to reiterate the evidence presented at trial which was offered to prove the crime of first degree rape. Our careful reading of the transcript, including the testimony of the victim and the examining physician, discloses that there was sufficient evidence of penetration to support defendant's conviction. See: State v. Stanley, 310 N.C. 353, 312 S.E.2d 482 (1984); State v. Flippin, 280 N.C. 682, 186 S.E.2d 917 (1972); State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961). Furthermore, defendant denied having any sexual relationship with the victim, thereby failing to raise the issue of penetration at trial. Defendant did not request an instruction on the lesser included offense of attempt to commit rape. We find no plain error in the trial judge's failure to so instruct. The assignment of error is overruled.

Defendant's final assignment of error concerns the introduction into evidence of sexually explicit magazines discovered as the result of a search of defendant's property. The magazines were admitted for the sole purpose of illustrating the testimony of the investigating officers who conducted the search. Defendant argues that the prejudicial effect of this evidence outweighed any probative value it may have had. He specifically objects to the number of magazines, more than one hundred, which were offered and viewed by the jury.

Not only were the magazines properly admitted for purposes of illustrating the testimony of the witness, see: 1 Brandis on N.C. Evidence § 34 (1982), but the evidence was relevant to corroborate the testimony of the victims. 1 Brandis on N.C. Evidence § 49 (1982) and cases cites thereunder. Both girls testified that defendant showed them pictures in the magazines prior to committing the offenses. Thus, limiting the evidence for purposes of illustration was favorable to the defendant. While it may not have been necessary for the State to introduce all the magazines, this fact alone does not constitute error sufficiently prejudicial to warrant granting defendant a new trial. This trial was free of prejudicial error.

NO ERROR.