State v. GatesÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-584
Filed: 16 February 2016
Onslow County, No. 13 CRS 54478
STATE OF NORTH CAROLINA,
v.
CURTIS RAY GATES, JR., Defendant.
Appeal by defendant from judgment entered 28 October 2014 by Judge Charles
H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 3
November 2015.
Roy Cooper, Attorney General, by Ellen A. Newby, Assistant Attorney General,
for the State.
Paul F. Herzog for defendant-appellant.
ZACHARY, Judge.
Where there was evidence to support a finding that the victim suffered serious
personal injury, the trial court did not err in instructing the jury on first-degree
sexual offense. Where time was not of the essence, and defendant did not allege
prejudice, the State’s failure to physically amend the indictment as ordered by the
trial court to remedy a discrepancy between the date of offense alleged in the
indictment and that supported by the State’s evidence was not fatal and did not
deprive the trial court of jurisdiction.
STATE V. GATES
Opinion of the Court
I. Factual and Procedural Background
On 13 July 2013, Curtis Ray Gates, Jr. (defendant), a member of the United
States Marine Corps stationed at Camp Lejeune, was on base washing clothes. After
finishing his laundry, he returned home to his wife, and then went out. In the early
morning of 14 July 2013, defendant passed a bar on Dewitt Street in Jacksonville
called Hooligans, and stopped in the parking lot to see why it was so crowded. In the
parking lot, defendant saw a woman leaning against her car.
According to the woman, A.A., she was in her vehicle when defendant opened
the door, struck her in the face, punched her in the abdomen, dragged her from the
vehicle, and forced her to perform oral sex on him. According to defendant, the two
flirted, A.A. had been taking ecstasy, and she voluntarily engaged in oral sex.
Officer Chris Funcke, a member of the Jacksonville Police Department, was in
the area investigating a disturbance. When he approached, he found A.A. performing
oral sex on defendant. A.A. immediately rushed to Officer Funcke, crying hysterically
and appearing to be in distress, stating that defendant was “going to rape and kill
her.” She claimed that defendant had struck her and dragged her to where Officer
Funcke found them. A.A. was disheveled; her makeup was smeared, the side of her
face “was red, as if she had been struck with something[,]” and Officer Funcke
detected marks nearby, indicating that somebody had been dragged to where he
observed A.A. and defendant initially. Officer Funcke also testified that he saw a bit
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Opinion of the Court
of blood on A.A.’s lip, but none on her face. Another officer testified that there were
dirt and grass stains on the tops of A.A.’s shoes. A.A. was then transported by EMS
to Onslow Memorial Hospital.
In the emergency room of Onslow Memorial Hospital, Officer Steve Moquin
took photographs of A.A.’s injuries, which included bruising and swelling on the left
side of her face, above the cheek bone and above the left eye; an abrasion and bruise
to the right side of her right cheek; bruising on both sides of her neck, consistent with
the grip of a hand; an abrasion on her right elbow; an abrasion on the heel of her right
hand; an abrasion on the outside of her left ankle; and an injury on her bottom lip.
The injuries appeared to be fresh, and there was still dirt in some of them. Another
officer, Officer Ashley Potter, observed that A.A.’s left knee was swelling. At the
hospital, A.A. complained that the left side of her abdomen was sore and, upon
inspection, staff saw four red marks, consistent with the spacing of knuckles. A.A.
testified that she continued to experience pain for four or five days after the assault.
On 13 May 2014, the Onslow County Grand Jury indicted defendant for
second-degree sexual offense, first-degree kidnapping, and crime against nature. On
10 June 2014, a superseding indictment was entered by the Grand Jury, charging
defendant with first-degree sexual offense, first-degree kidnapping, and crime
against nature.
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STATE V. GATES
Opinion of the Court
On 9 October 2014, the jury found defendant guilty of first-degree sexual
offense, first-degree kidnapping, and crime against nature. The jury’s verdict of
guilty on the charge of first-degree kidnapping was based both upon the fact that A.A.
was not released in a safe place, and the fact that A.A. was sexually assaulted. The
jury further found that the restraint or removal of A.A. facilitated the commission of
both a crime against nature and a first-degree sexual offense.
The trial court found defendant to be a prior record level I. A Static-99
assessment submitted to the court found defendant to be a low risk. The trial court
consolidated judgment on the three guilty verdicts, and sentenced defendant to an
active sentence in the presumptive range of 240-348 months imprisonment.
Defendant gave oral notice of appeal at trial.
II. Jury Instruction
In his first argument, defendant contends that the trial court erred in
instructing the jury on first-degree sexual offense. We disagree.
A. Standard of Review
“[Arguments] challenging the trial court’s decisions regarding jury instructions
are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675
S.E.2d 144, 149 (2009). “The prime purpose of a court’s charge to the jury is the
clarification of issues, the elimination of extraneous matters, and a declaration and
an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165,
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Opinion of the Court
171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974).
“[A] trial judge should not give instructions to the jury which are not supported by
the evidence produced at the trial.” Id. “Where jury instructions are given without
supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457
S.E.2d 716, 721 (1995).
B. Analysis
The State’s case on first-degree sexual offense proceeded on the theory that
A.A. suffered “serious personal injury.” Defense counsel objected, contending that
the jury should only be instructed on second-degree sexual offense, because A.A.’s
injuries were “minor scrapes and abrasions.” The trial court instructed the jury on
both first-degree and second-degree sexual offense, defining serious injury as “any
type of injury that causes great pain and suffering.” Defendant maintains that this
theory of first-degree sexual offense was unsupported by the evidence, and that
therefore the trial court erred in instructing the jury on that charge.
First-degree sexual offense is defined in N.C. Gen. Stat. § 14-27.4, which
provides in relevant part that “[a] person is guilty of a sexual offense in the first
degree if the person engages in a sexual act . . . [w]ith another person by force and
against the will of the other person, and . . . [i]nflicts serious personal injury upon the
victim or another person[.]” N.C. Gen. Stat. § 14-27.4(a)(2)(b) (2013). Whether an
injury is serious is a finding of fact to be determined by a jury. State v. Boone, 307
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Opinion of the Court
N.C. 198, 203-04, 297 S.E.2d 585, 589 (1982), overruled on other grounds by State v.
Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998); see also State v. Ackerman, 144 N.C.
App. 452, 459-60, 551 S.E.2d 139, 144 (2001). Mental injury may also be considered.
Id. at 204, 297 S.E.2d at 589; see also Ackerman, 144 N.C. App. at 460, 551 S.E.2d at
144.
Defendant asserts that the evidence at trial of serious personal injury was
insufficient to support the instruction on first-degree sexual offense. However, the
general rule is that, “if there be any evidence tending to prove the fact in issue, or
which reasonably conduces to its conclusion as a fairly logical and legitimate
deduction, and not merely such as raises a suspicion or conjecture in regard to it, the
case should be submitted to the jury.” State v. Summitt, 301 N.C. 591, 597, 273 S.E.2d
425, 428 (citations and quotations omitted), cert. denied, 451 U.S. 970, 68 L. Ed. 2d 349
(1981). In the instant case, the evidence demonstrated that Officer Funcke saw some
blood on A.A.’s lip. In addition, A.A. went to the emergency room for four hours where
her injuries were photographed, and the photographs verified that A.A. suffered
bruises on her ribs, arms, and face. A.A. testified that she was in pain for four or five
days afterwards. The evidence further indicated that, due to her feeling of a lack of
safety, A.A. left her boyfriend, terminated her lease, and moved back in with her
family, and at the time of trial, roughly a year later, still felt unsafe being alone.
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STATE V. GATES
Opinion of the Court
Defendant relies on Boone, a case in which there was no evidence of physical
or residual mental injury. In that case, the evidence at trial revealed only that, on
the morning of the offense, “the victim was shaking, crying and ‘hysterical’
immediately after the crime was committed and after the officers arrived on the
morning of the crime.” Boone, 307 N.C. at 205, 297 S.E.2d at 590. Our Supreme
Court noted that:
This record does not disclose that there was any residual
injury to the mind or nervous system of the victim after the
morning of the crime. The hysteria and crying described by
the witnesses occurred nearly coincident with the crime
and were results that one could reasonably expect to be
present during and immediately after any forcible rape or
sexual offense has been committed upon the female's
person.
Id. The Court observed that “ordinarily the mental injury inflicted must be more
than the res gestae results present in every forcible rape and sexual offense[,]” and
held that the evidence in Boone was insufficient to support a finding of serious
personal injury. Id. Unlike Boone, however, the instant case offers ample evidence
of physical injury, including injuries to A.A.’s face, neck, arms, and legs.
Defendant also contends that there was insufficient evidence of lingering
mental injury. However, our Supreme Court held in Boone that “[i]t is impossible to
enunciate a ‘bright line’ rule as to when the acts of an accused cause mental upset
which could support a finding of ‘serious personal injury[,]’” and that:
In order to support a jury finding of serious personal injury
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Opinion of the Court
because of injury to the mind or nervous system, the State
must ordinarily offer proof that such injury was not only
caused by the defendant but that the injury extended for
some appreciable time beyond the incidents surrounding
the crime itself.
Id. at 205, 297 S.E.2d at 589-90. We have since held this to mean that “if a mental
injury extends for some appreciable time, it is therefore a mental injury beyond that
normally experienced in every forcible rape.” Ackerman, 144 N.C. App. at 460, 551
S.E.2d at 144 (quoting State v. Easterling, 119 N.C. App. 22, 40, 457 S.E.2d 913, 924,
disc. review denied, 341 N.C. 422, 461 S.E.2d 762 (1995)). The evidence in the instant
case demonstrates that two months after the incident, A.A. broke her lease and
moved to Asheville with her family, and that roughly a year later, A.A. still felt unsafe
while alone. This evidence of A.A.’s residual mental injury is sufficient to support a
finding of serious personal injury.
We hold that the evidence at trial was sufficient to go to a jury, and that the
trial court did not err in instructing the jury on first-degree sexual offense.
This argument is without merit.
III. Indictment
In his second argument, defendant contends that there was a fatal variance
between the date of the crimes alleged in the indictment and the evidence offered by
the State at trial. We disagree.
A. Standard of Review
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Opinion of the Court
“An attack on an indictment is waived when its validity is not challenged in
the trial court.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied,
531 U.S. 1018, 148 L. Ed. 2d 498 (2000). “However, where an indictment is alleged to
be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge
to that indictment may be made at any time, even if it was not contested in the trial
court.” Id.
B. Analysis
The superseding indictment in this case listed the date of the offenses as 10
May 2013. At trial, the State moved to amend the superseding indictment to indicate
that 14 July 2013 was the date of the offenses. The trial court allowed this motion,
but the physical document was never amended. Defendant contends that the failure
to physically execute the amendment created a fatal variance in the indictment.
Even assuming, arguendo, that this resulted in a variance, “our courts have
recognized the general rule that ‘[w]here time is not of the essence of the offense
charged and the statute of limitations is not involved, a discrepancy between the date
alleged in the indictment and the date shown by the State's evidence is ordinarily not
fatal.’” State v. Poston, 162 N.C. App. 642, 647, 591 S.E.2d 898, 902 (2004) (quoting
State v. Locklear, 33 N.C. App. 647, 653-54, 236 S.E.2d 376, 380, disc. review denied,
293 N.C. 363, 237 S.E.2d 851 (1977)).
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STATE V. GATES
Opinion of the Court
In Poston, the defendant was originally indicted on fifteen sexual offense
charges arising from incidents that occurred between 1993 and 2000. Defendant was
ultimately convicted of, among other charges, two counts of first-degree sexual offense
that were alleged in the indictments to have occurred between June and July of 1994,
and in early to mid-October of 1997. Id. at 645-46, 591 S.E.2d at 901. On appeal,
defendant contended that the trial court should have dismissed these charges due to
a lack of evidence that the offenses were committed during the periods alleged in the
indictments. Id. at 646-47, 591 S.E.2d at 902. We first noted that, where defendant
presented no alibi defense with respect to the date of the offenses, the date was
immaterial. Id. at 648, 591 S.E.2d at 902. Moreover, although double jeopardy was
implicated by the State’s dismissal of several charges, the remaining indictments
each corresponded to an incident for which the charges were not dismissed. Had
there been more indictments than incidents, the dates might have been material, but
because there was an even ratio, the dates alleged in the indictments were not
material. Id. at 649-50, 591 S.E.2d at 903. Lastly, we observed that, although the
dates were relevant for the purpose of sentencing under the Fair Sentencing Act, that
issue had no impact on the jury’s determination of defendant’s guilt. Id. at 650-51,
591 S.E.2d at 904.
In the instant case, defendant was indicted for first-degree sexual offense, first-
degree kidnapping, and crime against nature. Time is not an essential element of
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Opinion of the Court
any of these crimes. Further, all three offenses are felonies. N.C. Gen. Stat. §§ 14-
27.4(a)(2)(b), 14-39, 14-177 (2013). In North Carolina, “no statute of limitations bars
the prosecution of a felony.” State v. Taylor, 212 N.C. App. 238, 249, 713 S.E.2d 82,
90 (2011) (quoting State v. Johnson, 275 N.C. 264, 271, 167 S.E.2d 274, 279 (1969)).
Defendant does not argue any of the issues raised in Poston, instead merely alleging
that the variance alone, by merit of its bare existence, was sufficient to be fatal to the
indictment.
Because time was not an essential element of the offenses, no alibi defense was
raised, and no statute of limitations was implicated, the discrepancy between the date
alleged in the indictment and that shown by the State’s evidence was not
automatically fatal. Nor does defendant argue that this discrepancy in any way
prejudiced his defense; rather, defendant simply asserts that, in this specific case,
this Court should overlook the precedent of cases like Poston which held the
discrepancy not fatal. We decline to do so.
This argument is without merit.
IV. Conclusion
In conclusion, there was ample evidence of A.A.’s injuries, both physical and
mental, to support the trial court’s jury instruction on first-degree sexual offense, and
therefore the trial court did not err issuing that instruction to the jury. Further, as
time was not of the essence and the statute of limitations was not implicated, any
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Opinion of the Court
variance between the indictment, which was never physically amended, and the
evidence at trial was not fatal, and did not deprive the trial court of jurisdiction.
NO ERROR.
Judges BRYANT and CALABRIA concur.
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