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    "judges": [
      "Judges WALKER and HUNTER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CLINTON McGRIFF, JR., Defendant-appellant"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nDefendant appeals from convictions of statutory rape and taking indecent liberties with a minor.\nDefendant lived with his girlfriend, Ebony Hunter, in a complex of townhouses in Raleigh, North Carolina. Ebony\u2019s sister A.H., who was thirteen, frequently went to Ebony\u2019s house after school with the victim, K.S.W., then fourteen. In 1998, defendant began to call K.S.W. on the phone, write letters to her, kiss her and inappropriately touch her. The kissing and inappropriate touching occurred at Ebony\u2019s house when K.S.W. visited with A.H. One day in December of 1998, defendant talked K.S.W. into coming over. When K.S.W. arrived, defendant was dressed only in boxer shorts and he told her to come upstairs. K.S.W. followed him into a bedroom, where there was a blanket on the floor. K.S.W. told defendant that she did not want to do anything, but defendant unbuttoned her pants. Defendant then had vaginal intercourse with her. A few weeks later, defendant attempted to force K.S.W. to perform oral sex on him. K.S.W. told only her friends at school what had happened. At trial, KS.W.\u2019s friend, C.S., testified that K.S.W. told her that defendant \u201ccame up behind her and put his arms around her waist, and . . . one day ... he tried to make her have oral sex and she didn\u2019t want to ....\u201d C.S. further testified that K.S.W. told her she had sexual intercourse with defendant, that defendant was \u201ctrying to pull down [her] pants and she was trying to keep them up but \u2014 I don\u2019t know what happened, but she told me that she was telling him to pull it out because it hurt and he wouldn\u2019t do it.\u201d\nOn 27 January 1999, Tonya Lesley, who lived a few doors away from K.S. W. and from defendant, was talking to a friend on a cordless telephone when she inadvertently intercepted a call between a male and a female whose voice she recognized as belonging to K.S.W. Lesley heard K.S.W. tell the male that she was mad at him for trying to force her to perform oral sex. After listening a while longer, Lesley determined that the male was defendant. While listening to the intercepted phone call, Lesley saw Ebony\u2019s eighteen-year-old sister, Tasha. Lesley motioned for her to come over and listen to the call to verify what she had heard. Tasha recognized defendant\u2019s voice. Tasha talked to Ebony later that day, and Ebony confronted K.S.W. K.S.W. called her mother and told her what happened.\nDefendant was indicted on one count each of statutory rape of a 14-year-old and taking indecent liberties with a child. Defendant moved to exclude evidence of the phone conversation. The trial court denied the motion. The jury returned guilty verdicts on both counts. On 13 January 2000, defendant was sentenced to 300 to 369 months imprisonment for statutory rape, and 20 to 24 months imprisonment for indecent liberties with a minor after the judge found as an aggravating factor that defendant had taken advantage of a position of trust or confidence to commit the offense. Defendant appealed.\nDefendant presents five assignments of error: whether the trial court erred by 1) denying defendant\u2019s motion to dismiss the charges due to a fatal variance between the indictments and the evidence; 2) allowing the State\u2019s motion to amend the indictment; 3) denying defendant\u2019s motion to exclude evidence of an illegally intercepted telephone conversation; 4) sentencing defendant in a manner not authorized by law, thus violating his constitutional rights; and 5) denying defendant\u2019s motion to dismiss the charges due to an insufficiency of the evidence.\nI.\nDefendant first argues that the trial court erred by denying defendant\u2019s motion to dismiss the charges because of a fatal variance between the indictments and the evidence. We disagree.\nN.C.G.S. \u00a7 15A-924(a)(5) states that criminal pleadings must contain \u201c[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\u201d N.C.G.S. \u00a7 15A-924(a)(5) (2001). The purpose of a bill of indictment is to put a defendant on such notice that he is reasonably certain of the crime of which he is accused. State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994). \u201cAn indictment is \u2018constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.\u2019 \u201d State v. Hutchings, 139 N.C. App. 184, 188, 533 S.E.2d 258, 261 (quoting State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)), review denied, 353 N.C. 273, 546 S.E.2d 381 (2000).\nIn the case sub judice, the first count of the indictment, alleging statutory rape of a 14-year-old person, stated:\n[O]n or between 01/04/1999, through 01/27/1999, in Wake County, the defendant. . . unlawfully, willfully and feloniously did engage in vaginal intercourse with K. S. W. (DOB: 04/05/1984), a[ ]person of the age of fourteen (14) years. At the time the defendant was at least six years older than the victim and was not lawfully married to the victim. This act was done in violation of G. S. 14-27.7A.\nCount II of the indictment, alleging indecent liberties with a child, stated:\n[O]n or between 01/04/1999 through 01/27/1999, in Wake County, the defendant . . . unlawfully, willfully and feloniously did take and attempt to take immoral, improper, and indecent liberties with K. S. W. (DOB: 04/05/1984), who was under the age of sixteen (16) years at the time, for the purpose of arousing and gratifying sexual desire. At the time, the defendant was over sixteen (16) years of age and at least five (5) years older than said child. This act was done in violation of G.S. 14-202.1.\nDefendant concedes that the indictment was proper on its face. However, defendant takes issue with the dates in both counts of the indictment, arguing that \u201cthere was a fatal variance between the allegations contained in the indictment. . . and the evidence introduced at trial.\u201d The evidence introduced at trial showed that at least one of the offenses occurred in December, between 1 December and 25 December 1998, as opposed to \u201con or between 01/04/1999, through 01/27/1999\u201d as alleged in the indictment. The court, upon motion by the State, allowed an amendment of the indictment to conform to the evidence. (See Issue II)\nCourts are lenient in child sexual abuse cases where there are differences between the dates alleged in the indictment and those proven at trial. Hutchings, 139 N.C. App. at 188, 533 S.E.2d at 261. Our Supreme Court has stated that \u201cin the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child\u2019s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence.\u201d State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984). Leniency has been allowed in cases involving older children as well. See State v. Hardy, 104 N.C. App. 226, 409 S.E.2d 96 (1991) (allowing leniency in case where the victim was fifteen years old). \u201cUnless the defendant demonstrates that he was deprived of his defense because of lack of specificity, this policy of leniency governs. \u2018[I]t is sufficient for conviction that the jury is satisfied upon the whole evidence that each element of the crime has been proved beyond a reasonable doubt.\u2019 \u201d State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991) (alterations in original) (citations omitted) (quoting State v. May, 292 N.C. 644, 655, 235 S.E.2d 178, 185, cert. denied, 434 U.S. 928, 54 L. Ed. 2d 288 (1977)).\nIn State v. Blackmon, 130 N.C. App. 692, 696-97, 507 S.E.2d 42, 45 (1998), this Court stated that\nthis Court has observed more generally that \u201cthe date given in the bill of indictment is not an essential element of the crime charged and [that therefore] the fact that the crime was committed on some other date is not fatal.\u201d In that same vein, we have also stated that a \u201cvariance between allegation and proof as to time is not material where no statute of limitations is involved.\u201d\n(Citations omitted.). In Blackmon, the defendant was convicted of eight counts of first-degree sexual offense of a minor and taking indecent liberties with a minor. On appeal, the defendant argued that the trial court erred in denying his motion to dismiss the indictments for lack of specificity. Specifically, the defendant argued that he was denied an opportunity to raise an alibi defense because the indictments listed the dates of the offenses as occurring between 1 January and 12 September 1994. In finding no error, the Blackmon Court stated that\nin a case ... in which the minor child testified at trial that the sexual acts and indecent liberties committed by defendant occurred when she was seven years old and that some of those acts happened when it was cold outside and some when it was warm outside, any variance between the indictments brought against defendant and the proof presented at trial is not fatal to the propriety of the indictments brought by the State.\nId. at 697, 507 S.E.2d at 46.\nIn this case, defendant argues that \u201c[t]he change in dates prejudiced his ability to present a potential alibi defense.\u201d However defendant offered no alibi defense for the dates originally alleged in the indictment, nor for the December dates shown by the evidence. In fact, defendant presented no evidence at all.\nThe State\u2019s evidence tended to show that K.S.W. was unsure of the exact dates that defendant engaged in sexual acts with her. However, she thought it was before she went to Florida during her school Christmas break in 1998. Evidence also tended to show that defendant tried to force K.S.W. to perform oral sex on him after that Christmas break. This evidence substantially corresponds with the dates in the indictment.\nTime variances do not require dismissal if they do not prejudice a defendant\u2019s opportunity to present an adequate defense. See State v. Campbell, 133 N.C. App. 531, 536, 515 S.E.2d 732, 735 (1999). \u201c[A] defendant suffers no prejudice when the allegations and proof substantially correspond; when defendant presents alibi evidence relating to neither the date charged nor the date shown by the State\u2019s evidence.\u201d State v. Booth, 92 N.C. App. 729, 731, 376 S.E.2d 242, 244 (1989) (citations omitted). Defendant\u2019s contention that the variance between the dates in the indictment and the evidence presented at trial was fatal and deprived him of a potential alibi defense has no merit. Accordingly, this assignment of error is overruled.\nII.\nDefendant next argues that the trial court erred by allowing the State\u2019s motion to amend the indictment. During the trial, the prosecutor moved to amend the indictment to conform to the evidence. Specifically, the prosecutor moved to change the time frame from between 4 January 1999 and 27 January 1999, to between 1 December 1998 and 27 January 1999. Defendant objected that the change would deprive him of the opportunity to pursue a bill of particulars to possibly prepare for an alibi defense. The court granted the motion to amend the indictment.\nN.C.G.S. \u00a7 15A-923(e) (2001) states that \u201cA bill of indictment may not be amended.\u201d However, this statutory requirement has been interpreted to mean that \u201can indictment may not be amended in a way which \u2018would substantially alter the charge set forth in the indictment.\u2019 \u201d Brinson, 337 N.C. at 767, 448 S.E.2d at 824 (quoting State v. Carrington, 35 N.C. App. 53, 240 S.E.2d 475 (1978)). In the instant case, changing the dates in the indictment to expand the time frame to include December 1998 did not \u201csubstantially alter the charge set forth in the indictment.\u201d Id.\nN.C.G.S. \u00a7 15A-924(a)(4) states:\nA criminal pleading must contain:\nA 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.\nN.C.G.S. \u00a7 15A-924(a)(4) (2001) (emphasis added). Accordingly, this assignment of error is overruled.\nIII.\nDefendant next argues that the trial court erred by denying his motion to exclude evidence of an illegally intercepted telephone conversation. Defendant complains that the conversation was intercepted in violation of N.C.G.S. \u00a7 15A-287(a)(1) and 18 U.S.C.A. \u00a7 2511(1)(a) (2000), of the Omnibus Crime Control and Safe Streets Act of 1968 (Federal Wiretapping Statute). See 18 U.S.C.A. \u00a7\u00a7 2510 et seq. Specifically, defendant contends that N.C.G.S. \u00a7 15A-287(a)(l) precludes the admission of statements made during the telephone conversation because the conversation was willfully intercepted without consent. We disagree.\nN.C.G.S. \u00a7 15A-287(a)(l) states:\nExcept as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person . . . [w]illfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.\nN.C.G.S. \u00a7 15A-287(a)(1) (2001) (emphasis added). To \u201cintercept\u201d means \u201cthe aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of any electronic, mechanical, or other device.\u201d N.C.G.S. \u00a7 15A-286(13) (2001).\nThe key to our analysis is the interpretation of \u201cwillful\u201d interception. Although \u00a7 15A-286 does not offer a definition of \u201cwillful,\u201d North Carolina law is modeled after the Federal Wiretapping Statute and our federal courts have addressed the issue of \u201cwillful\u201d interception. In Adams v. Sumner, 39 F.3d 933 (9th Cir. 1994), a hotel switchboard operator inadvertently overheard a hotel guest make a reference to guns and remained on the line for several minutes thereafter. The issue before the court was whether the continued eavesdropping was willful, and therefore inadmissible under the Federal Wiretapping Statute. The Adams Court relied on the definition of willful in United States v. Murdock, 290 U.S. 389, 78 L. Ed. 381 (1933). \u201cMurdock defined \u2018willful\u2019 to mean \u2018done with a bad purpose,\u2019 \u2018without justifiable excuse,\u2019 or \u2018stubbornly, obstinately, or perversely.\u2019 \u201d Adams at 936 (quoting United States v. Murdock, 290 U.S. 389, 394, 78 L. Ed. 381, 385 (1933)). The Adams Court concluded that the hotel switchboard operator remained on the line out of his concern for other hotel guests after hearing the reference to guns; therefore, his \u201ccontinued eavesdropping was not done with a bad purpose or without a justifiable excuse.\u201d Adams at 936. The Adams Court held that the continued eavesdropping after the inadvertent interception was not willful; therefore, statements overheard during the call were admissible under the Federal Wiretapping Statute.\nBased on Adams, we conclude that Tonya Lesley\u2019s interception of the phone conversation between defendant and K.S.W. was not willful. Evidence presented at trial indicates that Lesley, who lived in the same subdivision as defendant and K.S.W., was talking to her friend on a cordless phone when she stepped outside to check the mail. The reception faded and Lesley began to pick up a conversation between defendant and K.S. W. Like the hotel switchboard operator in Adams, Lesley heard a telephone conversation that was \u201cso disturbing and so ugly,\u201d it caused her alarm. Lesley recognized K.S.W.\u2019s voice and heard K.S.W. tell the person she was talking to that she was upset with him for trying to force her to perform oral sex. She identified the male voice as the defendant when she heard him say Ebony\u2019s daughter would not be home for twenty-five minutes. Lesley, who testified she listened for about an hour, continued to listen because she intended to tell K.S.W.\u2019s mother about the conversation. Lesley motioned for Tasha to listen to the conversation to confirm the identity of the voices and the substance of the conversation. We conclude that Lesley\u2019s continued listening was not done with a bad purpose or without a justifiable excuse; rather, it was done out of concern for the welfare of a minor. Because we find that Lesley\u2019s continued listening was not done in violation of N.C.G.S. \u00a7 15A-287(a)(1), we need not address whether a conversation heard in violation of the statute is admissible in a criminal. Accordingly, this assignment of error is without merit.\nIV.\nDefendant next argues that the trial court abused its discretion by sentencing defendant in a manner not authorized by law, thus violating his constitutional rights. Specifically, defendant argues that he is entitled to a new sentencing hearing because the trial court erroneously found as an aggravating factor that defendant took advantage of a position of trust or confidence to commit the offenses. We disagree.\nN.C.G.S. \u00a7 15A-1340.16(a) states:\nThe court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court. The State bears the burden of proving by a preponderance of the evidence that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.\nN.C.G.S. \u00a7 15A-1340.16(a) (2001). Here, the State presented evidence that, prior to the incidents leading to these convictions, K.S.W. knew defendant because defendant was dating and living with her friend\u2019s sister, Ebony. K.S.W. and her friend visited Ebony\u2019s house every day after school to babysit, often when there were no adults but defendant in the house. K.S.W. had known defendant for approximately two months when he began calling her on the phone, touching her inappropriately, and writing letters to her. We find that this is sufficient evidence that defendant took advantage of a position of trust.\nIn State v. Gilbert, 96 N.C. App. 363, 385 S.E.2d 815 (1989), defendant was convicted of taking indecent liberties with a minor child. The victim frequently visited defendant\u2019s house, and defendant let her play with his dog and gave her candy. The defendant even gave her money for performing jobs around the house. This Court found this evidence sufficient to support the trial court\u2019s finding that defendant took advantage of a position of trust. Gilbert, 96 N.C. App. at 365, 385 S.E.2d at 817. We find this case analogous; accordingly, this assignment of error is overruled.\nV.\nDefendant\u2019s final argument is that the trial court erred by denying his motion to dismiss the charges due to an insufficiency of the evidence. Defendant contends that the State\u2019s evidence was insufficient because it was the \u201cfruits of the poisonous tree\u201d or was at variance with the allegations in the indictment. As we concluded above, evidence of the intercepted telephone call was properly admitted. Furthermore, we have found that there was no fatal variance between the indictment and the evidence. Accordingly, this assignment of error is overruled.\nFor the reasons stated above, we find no error.\nAFFIRMED.\nJudges WALKER and HUNTER concur.\n. Defendant\u2019s argument appears to be based on a belief that his reasonable expectation of privacy was invaded; however, defendant engaged in a conversation with someone using a cordless telephone. On the contrary, there is no reported North Carolina decision that has concluded a cordless telephone user has a reasonable expectation of privacy in his cordless telephone conversations. See In re Askin, 47 F.3d 100, 104 (4th Cir. 1995); McKamey v. Roach, 55 F.3d 1236, 1239 (6th Cir. 1995); United States v. Carr, 805 F. Supp. 1266, 1271 (E.D.N.C. 1992).\n. The legislative history of the Federal Wiretapping Statute included a reference to United States v. Murdock, 290 U.S. 389, 78 L. Ed. 381 (1933), for the meaning of \u201cwillful.\u201d",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.",
      "John T. Hall, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CLINTON McGRIFF, JR., Defendant-appellant\nNo. COA01-599\n(Filed 6 August 2002)\n1. Indictment and Information\u2014 variance with evidence\u2014 date of sexual abuse of child\nThere was not a fatal variance between the indictments and the evidence in a prosecution for statutory rape and indecent liberties where defendant took issue with the dates, but courts are lenient in child abuse cases where there are differences between the dates alleged in the indictment and those proven at trial if they do not prejudice a defendant\u2019s opportunity to present an adequate defense. This defendant offered no alibi defense; in fact, defendant offered no evidence at all.\n2. Indictment and Information\u2014 amendment \u2014 dates of sexual offenses\nThe trial court did not err during a trial for statutory rape and indecent liberties by allowing the State to amend the indictment to conform to the evidence of dates. Changing the dates in the indictment to expand the time frame did not substantially alter the charge set forth in the indictment.\n3. Evidence\u2014 intercepted telephone conversation \u2014 protection of minor\nThe trial court did not err in a prosecution for statutory rape and indecent liberties by admitting evidence of an intercepted telephone conversation where a neighbor stepped outside while talking on a cordless telephone; she heard a conversation between defendant and the victim, recognized the voices, and was alarmed at the conversation; she continued to listen because she intended to inform the victim\u2019s mother; and she had another party listen to confirm the identity of the voices and the substance of the conversation. The continued listening was not done with bad purpose or without justifiable excuse but with concern for the welfare of a minor.\n4. Sentencing\u2014 aggravating factor \u2014 abuse of trust\nThe trial court did not abuse its discretion when sentencing defendant for statutory rape and indecent liberties by finding as an aggravating factor that defendant took advantage of a position of trust or confidence where the fourteen-year-old victim knew defendant because defendant was living with a friend\u2019s sister; the friend and the victim visited everyday to babysit, often with no adult but defendant present; and the victim had known defendant for about two months when he began calling her, touching her, and writing to her.\nAppeal by defendant from judgment entered 12 January 2000 by Judge David Q. LaBarre in Wake County Superior Court. Heard in the Court of Appeals 20 February 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.\nJohn T. Hall, for defendant-appellant."
  },
  "file_name": "0631-01",
  "first_page_order": 661,
  "last_page_order": 671
}
