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App.", "case_ids": [ 11915066 ], "year": 1995, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0001-01" ] }, { "cite": "379 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "sexual misconduct occurred during a twenty-year period" } ], "opinion_index": 0 }, { "cite": "324 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482061 ], "year": 1989, "pin_cites": [ { "parenthetical": "sexual misconduct occurred during a twenty-year period" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0437-01" ] }, { "cite": "472 S.E.2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "745", "parenthetical": "a ten-year gap between instances of similar sexual misbehavior did not render them so remote in time as to negate the existence of a common plan or scheme" } ], "opinion_index": 0 }, { "cite": "343 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798808 ], "year": 1996, "pin_cites": [ { "page": "654", "parenthetical": "a ten-year gap between instances of similar sexual misbehavior did not render them so remote in time as to negate the existence of a common plan or scheme" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0634-01" ] }, { "cite": "476 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "300", "parenthetical": "testimony showed that defendant's prior acts of sexual abuse occurred over a period of approximately twenty six years" } ], "opinion_index": 0 }, { "cite": "344 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867709 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "616", "parenthetical": "testimony showed that defendant's prior acts of sexual abuse occurred over a period of approximately twenty six years" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0611-01" ] }, { "cite": "369 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514083 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0585-01" ] }, { "cite": "341 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "555", "parenthetical": "benefit of defendant's objection to introduction of letter lost when defendant later read from letter" } ], "opinion_index": 0 }, { "cite": "316 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697392 ], "year": 1986, "pin_cites": [ { "page": "362", "parenthetical": "benefit of defendant's objection to introduction of letter lost when defendant later read from letter" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0356-01" ] }, { "cite": "381 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "459", "parenthetical": "benefit of objection lost when same or similar evidence has been admitted or is later admitted without objection" } ], "opinion_index": 0 }, { "cite": "325 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491441 ], "year": 1989, "pin_cites": [ { "page": "196", "parenthetical": "benefit of objection lost when same or similar evidence has been admitted or is later admitted without objection" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0187-01" ] }, { "cite": "419 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "331 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497445 ], "year": 1992, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0604-01" ] }, { "cite": "144 L. Ed. 2d 779", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "527 U.S. 1026", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248035, 1248550, 1248169, 1248458, 1248586, 1248015, 1248113, 1248500, 1248309, 1248056, 1248409, 1248252, 1248413, 1248223 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/527/1026-05", "/us/527/1026-08", "/us/527/1026-13", "/us/527/1026-01", "/us/527/1026-04", "/us/527/1026-07", "/us/527/1026-03", "/us/527/1026-14", "/us/527/1026-12", "/us/527/1026-11", "/us/527/1026-06", "/us/527/1026-02", "/us/527/1026-10", "/us/527/1026-09" ] }, { "cite": "508 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "265" } ], "opinion_index": 0 }, { "cite": "349 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571619 ], "year": 1998, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0535-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "891" }, { "page": "893" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "year": 1987, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "170 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "639" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548891 ], "year": 1969, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0455-01" ] }, { "cite": "340 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "year": 1986, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] } ], "analysis": { "cardinality": 1094, "char_count": 26502, "ocr_confidence": 0.763, "pagerank": { "raw": 2.599795389642459e-07, "percentile": 0.8193848367221409 }, "sha256": "fdb591ae9d41f130a3c297ef80862b6e95a8fc88ee829496d84acab05adc138d", "simhash": "1:0763842a6c7facfe", "word_count": 4335 }, "last_updated": "2023-07-14T14:40:03.287783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and CAMPBELL concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DARRELL LOVE" ], "opinions": [ { "text": "WYNN, Judge.\nFollowing his convictions for first degree sexual offense and first degree kidnapping of a female minor, the defendant brings the following issues on appeal of whether the trial court erred by (I) admitting evidence of an alleged sexual act by defendant on the female minor\u2019s mother nearly twenty years before the present charge, (II) admitting an officer\u2019s testimony concerning a statement he took from the female minor\u2019s mother, (III) giving a jury instruction on corroboration regarding the female minor\u2019s mother\u2019s statement to the officer; (IV) overruling defendant\u2019s objections to the admission of statements he made that were not provided to him through discovery, and (V) finding the indictment for first degree sexual offense constitutionally valid. For the reasons stated below, we find no error in his trial.\nThe State\u2019s evidence tended to show that on the evening of 15 July 1999, a six-year-old child was playing outdoors with her brother, two sisters and two cousins. Defendant was nearby and asked the female minor to help him find his dog\u2019s collar. After searching for the collar, defendant told the female minor to come and clean his house and told the other children to go home.\nDefendant grabbed the female minor\u2019s arm and took her into his house. Once inside, defendant pulled down the female minor\u2019s pants and panties and performed oral sex on her. Defendant told her not to tell her mother what had happened. Afterwards, the female minor unlocked the door and started walking home, holding a dollar bill that defendant gave her.\nIn the meantime, the other children went to the female minor\u2019s home and told her mother that the female minor was with defendant. As the female minor\u2019s mother started walking towards defendant\u2019s house, she saw her daughter whom she asked if defendant did anything to her. Initially, the female minor answered no, and stated that defendant wanted her to clean his house. Later, however, the female minor told her mother what defendant did to her; consequently, her mother contacted the police. Following conviction by a jury, the trial court imposed a sentence of 230 months to 285 months for the first degree sexual offense conviction and arrested judgment on the first degree kidnapping conviction.\nOn appeal, defendant first contends that the trial court committed reversible error by admitting irrelevant and inflammatory evidence of an alleged sexual act by him on the female minor\u2019s mother nearly twenty years before the present charge. We disagree.\nUnder Rule 404(b):\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident....\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2001). Thus, Rule 404(b) allows admission of conduct evidence so long as it is offered for a purpose other than to show that defendant had the propensity to engage in the charged conduct. See State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986). Moreover, if specific acts are relevant and competent as evidence of something other than character, they are not inadmissible because they incidentally reflect upon character. See State v. Penley, 6 N.C. App. 455, 466, 170 S.E.2d 632, 639 (1969).\nWhen the evidence is offered for a proper purpose, the ultimate test of admissibility is whether the incidents are sufficiently similar to those in the case at bar and not so remote in time as to be more prejudicial than probative under the Rule 403 test. See State v. Cotton, 318 N.C. 663, 665, 351 S.E.2d 277, 279 (1987). The similarities between the acts do not have to be unique or bizarre; rather, they must tend to support a reasonable inference that the same person committed both acts. See State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). Remoteness in time generally affects the weight to be given to the evidence, but not its admissibility. See id. at 307, 406 S.E.2d at 893. Further, remoteness in time is less important when the prior act is used to show intent, motive, knowledge, or lack of mistake. See State v. White, 349 N.C. 535, 553, 508 S.E.2d 253, 265 (1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). \u201cWith respect to prior sexual offenses, we have been very liberal in permitting the State to present such evidence to prove any relevant fact not prohibited by Rule 404(b).\u201d State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561 (1992).\nIn the present case, the trial court conducted a voir dire hearing, to determine the admissibility of the testimony of the female minor\u2019s mother concerning alleged sexual abuse by defendant After voir dire, the trial court concluded in a written order that the testimony of the female minor\u2019s mother was admissible to show the identity of the man who abused her on 15 July 1999, common scheme or plan, or modus operandi, intent on the part of defendant in that he intentionally abused the female minor. The trial court further concluded the testimony was admissible under Rules 403 and 404(b) of the North Carolina Rules of Evidence.\nAt trial, the mother of the female minor testified, on direct examination over defendant\u2019s objection, that when she was about nine years old defendant engaged in sexual acts with her on three or four occasions. She also testified that defendant told her not to tell anyone about the occurrences and that she was scared. The trial court allowed into evidence this testimony to show proof of identity, a common scheme or plan or modus operandi, and intent.\nLater in the trial, Lieutenant John Sifford testified and described his interview with the female minor\u2019s mother on 17 July 1999. During the interview, she told the officer what defendant did to her when she was a child. The officer took a detailed statement from her and read the statement to the jury without objection. Because this evidence was later admitted by Lieutenant Sifford without objection, defendant has waived any objection he may have previously raised as to its admissibility. See State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (benefit of objection lost when same or similar evidence has been admitted or is later admitted without objection); State v. Moses, 316 N.C. 356, 362, 341 S.E.2d 551, 555 (1986) (benefit of defendant\u2019s objection to introduction of letter lost when defendant later read from letter).\nEven assuming arguendo that defendant did not waive his objection, the trial court did not err in allowing the testimony of the female minor\u2019s mother. The evidence presented at trial was substantial, the female minor\u2019s testimony was corroborated in part by her mother, siblings, and cousins.\nNonetheless, defendant contends that the acts against the female minor\u2019s mother were too remote; he relies on State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988), where our Supreme Court found that a span of seven to twelve years renders a prior sexual act too remote. However, since Jones, our Courts have permitted testimony of prior acts of sexual misconduct which occurred greater than seven to twelve years earlier. See State v. Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (testimony showed that defendant\u2019s prior acts of sexual abuse occurred over a period of approximately twenty six years); State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996) (a ten-year gap between instances of similar sexual misbehavior did not render them so remote in time as to negate the existence of a common plan or scheme); State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989) (sexual misconduct occurred during a twenty-year period).\nIn Frazier, the testimony in question tended to prove that the defendant\u2019s prior acts of sexual abuse occurred over a period of approximately twenty-six years and in a strikingly similar pattern. In the present case, the testimony of the minor female\u2019s mother also indicated a strikingly similar pattern of sexual abuse acts by defendant. Both mother and daughter were young children, in each instance, defendant made the victim sit on his face and licked the child\u2019s genitalia, and both victims were related to defendant. Moreover, the trial court made the findings in its order that this was similar to the incident involving the child.\nDefendant further argues that the evidence at issue does not show that his alleged bad acts constituted a continuous pattern which our courts require. However, in considering the question of a continuous pattern, \u201c[w]hen there is a period of time during which there is no evidence of sexual abuse, the lapse does not require exclusion of the evidence if the defendant did not have access to the victims during the lapse.\u201d State v. Frazier, 121 N.C. App. 1, 11, 464 S.E.2d 490, 495 (1995), decision affirmed, 344 N.C. 611, 476 S.E.2d 297 (1996). Moreover, our Court has found evidence of other crimes committed in an unusual and similar manner admissible. See State v. Wortham, 80 N.C. App. 54, 62, 341 S.E.2d 76, 81 (1986), reversed in part on other grounds, 318 N.C. 669, 351 S.E.2d 294 (1987); see also State v. Riddick, 316 N.C. 127, 134, 340 S.E.2d 422, 427 (1986) (remoteness in time less important when modus operandi so strikingly similar); State v. Lloyd, 354 N.C. 76, 89, 552 S.E.2d 596, 609 (2001) (similar evidence properly admitted to show lack of accident); State v. Penland, 342 N.C. 634, 654, 472 S.E.2d 2d 734, 745 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1996) (ten-year gap between incidents not too long given distinct and bizarre behaviors that suggest ongoing plan). The record in this case shows that the alleged sexual acts that occurred to the minor female and her mother although separated by a long period were strikingly similar.\nDefendant also argues that the evidence should have been excluded under Rule 403 which provides,\nrelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2001).\nHowever, a trial court\u2019s decision to admit evidence under Rule 403 will not be grounds for relief on appeal unless it is \u201cmanifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.\u201d State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied, 510 U.S. 948, 126 L. Ed.2d 341 (1993). Moreover, to show prejudice arising from an evidentiary ruling under Rule 403, \u201cdefendant must persuade this Court that had the trial court not admitted the [evidence], a different outcome likely would have been reached.\u201d State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002) (citing N.C. Gen. Stat. \u00a7 15A-1443(a) (1999)); See State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986).\nIn the present case, the probative value of the testimony about defendant\u2019s earlier sexual misconduct was admissible and the record fails to show evidence reflecting that the trial court abused its discretion in determining that the probative value outweighed the prejudicial effect. Thus, this assignment of error is rejected.\nNext, defendant contends that he is entitled to a new trial because of the erroneous and prejudicial admission of a non-corroborative hearsay statement of the mother. We disagree.\nAs we stated previously, defendant did not object to the trial court allowing Lieutenant Sifford to read into the record a statement he took from the female minor\u2019s mother concerning the alleged sexual abuse by defendant. After the officer testified, the trial court sua sponte instructed the jury that the officer\u2019s statement was admitted to corroborate the mother\u2019s testimony.\nDefendant failed to object and waived his right to challenge the introduction of this evidence. Since there was no objection to the introduction of this evidence, defendant must establish plain error by showing that it was a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u201d United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982); see also State v. Dale, 343 N.C. 71, 468 S.E.2d 39 (1996). Before granting relief based on the plain error rule, \u201cthe appellate court must be convinced absent the error the jury probably would have reached a different verdict.\u201d State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).\n\u201cIt is well-settled that a witness\u2019 prior consistent statements are admissible to corroborate the witness\u2019 sworn trial testimony.\u201d State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497 (2000). \u201cCorroborative evidence by definition tends to \u2018strengthen, confirm, or make more certain the testimony of another witness.\u2019 \u201d Id. (quoting State v. Adams, 331 N.C. 317, 328-29, 416 S.E.2d 380, 386 (1992). \u201cSlight variances or inconsistencies in and between the corroborative testimony and that sought to be corroborated, however, do not render the corroborative testimony inadmissible.\u201d State v. Burns, 307 N.C. 224, 230, 297 S.E.2d 384, 387 (1982). Corroborative testimony may contain additional information when it strengthens or adds credibility to the testimony in which it corroborates but it may not contradict trial testimony. See id.\nDefendant specifically argues that Lieutenant Sifford\u2019s statement was erroneously admitted because it contained new material that was grossly prejudicial to him and did not add weight or credibility to the testimony of the mother. He specifically objects to the parts of the statement where she told the officer that defendant \u201cwould give me candy and dollars in return,\u201d that \u201cone of the incidents occurred in the woods,\u201d that defendant \u201cdid proposition me many times to let him do this to me again,\u201d and that defendant \u201cstill continued to proposition me about this and did so about two months ago.\u201d \u201cIn the ordinary course of things, an individual will not describe the same event in precisely the same way on any two occasions. Nor is it necessary that a person do so in order that his prior consistent statements be admissible to corroborate his testimony at trial.\u201d State v. Burns, 307 N.C. at 230, 297 S.E.2d at 387.\nIn the present case, the variations in the mother\u2019s testimony at trial do not directly contradict her statement given to Lieutenant Sifford; rather, the information in the statement was \u201csubstantially similar to and tended to strengthen and confirm\u201d her testimony at trial regarding the alleged sexual abuse. State v. McCord, 140 N.C. App. 634, 657, 538 S.E.2d 633, 647 (2000) (citations omitted), review denied, 353 N.C. 392, 547 S.E.2d 33 (2001). Accordingly, we reject this assignment of error.\nNext, defendant contends that the trial court did not properly define corroboration for the jury and that the trial court should have instructed the jury pursuant to N.C.P.I. - Crim. 105.20, the pattern jury instruction for corroboration. We disagree.\nThe trial court instructed the jury as follows:\nLadies and gentlemen, the evidence you just heard, that is a statement that the lieutenant just talked about before, it was offered for the purpose of corroborating the testimony of [the female minor\u2019s mother] and for no other purpose.\nThe failure of the trial court to define corroboration in a jury instruction is not error. See State v. Lee, 248 N.C. 327, 328, 103 S.E.2d 295, 296 (1958); State v. Hill, 32 N.C. App. 261, 231 S.E.2d 682, 684 (1977); State v. Satterfield, 27 N.C. App. 270, 218 S.E.2d 504 (1975). For example, our Supreme Court held that a trial court\u2019s instruction that stated \u201cif you find that this statement does corroborate his/her testimony,\u201d to be sufficient. State v. Alston, 307 N.C. 321, 332, 298 S.E.2d 631, 640 (1983) (citing State v. Detter, 298 N.C. 604, 630, 260 S.E.2d 567, 585 (1979); See also State v. Case, 253 N.C. 130, 136, 116 S.E.2d 429, 433 (1960), cert. denied, 365 U.S. 830, 81 S. Ct. 717, 5 L. Ed.2d 707 (1961)). We find this instruction similar to the instruction given in the present case. Moreover, the record shows that defendant did not object to this instruction, nor did he request an additional instruction. \u201cThe admission of evidence which is competent for a restricted purpose without limiting instructions will not be held to be error in the absence of a request by the defendant for such limiting instructions.\u201d State v. Coffey, 326 N.C. 268, 286, 389 S.E.2d 48, 59 (1990). Therefore, this assignment of error is rejected.\nNext, defendant contends that the trial court erred in overruling his objections to the admission of three statements that were not provided to him through discovery. We disagree.\nDefendant specifically argues that admitting these statements was a discovery violation under N.C. Gen. Stat. \u00a7 15A-903. N.C. Gen. Stat. \u00a7 15A-903(a)(2) (2001) which requires a prosecutor to disclose to a defendant the substance of any relevant statements made by the defendant, in possession of the State, and the existence of which is known to the prosecutor. However, a trial court is not required to impose sanctions for late discovery; instead, it is a matter of discretion for the trial judge. See N.C. Gen. Stat. \u00a7 15A-910 (2001); State v. Weeks, 322 N.C. 152, 171, 367 S.E.2d 895, 906 (1988); State v. Gardner, 311 N.C. 489, 506, 319 S.E.2d 591, 603 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985).\nIn the present case, defendant objected to the testimony of the female minor\u2019s cousin who testified that she heard defendant describe the female minor as a \u201cthick juicy plum.\u201d Before it was offered, defendant objected to this testimony because it was not provided through discovery. The State responded that it had just learned about the statement the day before the trial, and because defendant had been provided with discovery where he had made similarly sexually suggestive comments about the female minor to her mother, defendant would not be unfairly surprised by the cousin\u2019s statement. The trial court found that the statement was a similar and related descriptive phrase and overruled defendant\u2019s objection. Furthermore, there is no showing that this late revelation upset defendant\u2019s overall strategy or that he was otherwise prejudiced by the late discovery.\nDefendant also argues in his brief that a statement made by the female minor\u2019s mother was a discovery violation and constituted error. At trial, the mother stated that defendant told her, \u201cYour daughter got those big thighs like you do. You know she\u2019s real thick and got those big thighs like you did when you were little.\u201d Defendant made an objection. However, the trial court pointed out that \u201cthere were other similar and related descriptive phrases. I\u2019ll overrule the objection at this time.\u201d Defendant also made an objection to a statement made by the female minor\u2019s aunt, who testified that she heard defendant say to other females, \u201cjust sit on my head, make my head feel good.\u201d\n\u201cWhere, as in the present case, trial testimony is substantially similar to what in substance was provided during discovery, and variations are attributable to the addition or elaboration of detail or merely changes in vocabulary or syntax, the testimony is admissible, and in full compliance with our discovery rules.\u201d State v. Pridgen, 313 N.C. 80, 91, 326 S.E.2d 618, 625 (1985).\nThe record on appeal shows that as to the statement by the female minor\u2019s cousin, the trial court made a determination that the statement was similar to other statements; and as to the other two statements, we cannot find that the objection to these statements was grounded on a discovery violation, or that defendant was not provided with this information through discovery. \u201cThis Court has held that discretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the state in its noncompliance with the discovery requirements.\u201d State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986). Therefore, this assignment of error is rejected.\nIn his final argument, defendant contends that the indictment for first degree sexual offense was not constitutionally valid because it failed to allege one of the elements of the offense in light of Apprendi v. New Jersey. We disagree.\nBoth our legislature and our courts have endorsed the use of short-form indictments for rape and sex offenses, even though such indictments do not specifically allege each and every element. N.C. Gen. Stat. \u00a7 15-144.1 (1999) (outlining requirements for rape indictment); N.C. Gen. Stat. \u00a7 15444.2(a) (outlining requirements for sex offense indictment); State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) (upholding short-form indictments for sex offenses); State v. Lowe, 295 N.C. 596, 604, 247 S.E.2d 878, 883-84 (1978) (upholding short-form indictments for rape).\nState v. Harris, 140 N.C. App. 208, 215, 535 S.E.2d 614, 619, review denied, 353 N.C. 271, 546 S.E.2d 122 (2000). The indictment in this case complied with N.C. Gen. Stat. \u00a7 15-144.2 (2001) which authorizes a short-form indictment for the crime! of first-degree sexual offense, and thus, the trial court had subject matter jurisdiction over defendant. See State v. Wallace, 351 N.C. 481, 503-06, 528 S.E.2d 326, 342-44, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000); State v. Doisey, 138 N.C. App. 620, 628, 532 S.E.2d 240, 246, review denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied, 531 U.S. 117, 148 L. Ed. 2d 1015 (2001). Accordingly, we reject this assignment of error.\nIn summation, we hold that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges HUDSON and CAMPBELL concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Diane G. Miller, for the State.", "Rudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DARRELL LOVE\nNo. COA01-1275\n(Filed 3 September 2002)\n1. Evidence\u2014 sexual abuse on female minor victim\u2019s mother nearly twenty years before \u2014 proof of identity, common scheme, plan, modus operandi, and intent \u2014 remoteness\nThe trial court did not err in a first-degree sexual offense and first-degree kidnapping of a female minor case by admitting evidence of alleged sexual abuse by defendant on the female minor victim\u2019s mother nearly twenty years before the present charge, when the mother was nine years old, because: (1) the evidence was admissible under N.C.G.S. \u00a7 8C-1, Rule 404(b) to show proof of identity, a common scheme or plan or modus operandi, and intent; (2) defendant has waived any objection he may have previously raised as to its admissibility when this evidence was later admitted by an officer without objection; (3) even assuming arguendo that defendant did not waive his objection, the evidence presented at trial was substantial, and the female minor\u2019s testimony was corroborated in part by her mother, siblings, and cousins; (4) North Carolina courts have permitted testimony of prior acts of sexual misconduct which occurred greater than seven to twelve years even though defendant contends the acts against the female minor\u2019s mother were too remote; and (5) the probative value of the testimony about defendant\u2019s earlier sexual misconduct was admissible and the record fails to show evidence reflecting that the trial court abused its discretion in determining that the probative value outweighed the prejudicial effect.\n2. Evidence\u2014 corroboration \u2014 officer\u2019s testimony \u2014 statement from female minor victim\u2019s mother\nThe trial court did not commit plain error in a first-degree sexual offense and first-degree kidnapping of a female minor case by admitting an officer\u2019s testimony concerning a statement he took from the female minor victim\u2019s mother that twenty years earlier defendant would give her candy and dollars in return for sexual acts and that defendant continued to proposition her, because: (1) a witness\u2019s prior consistent statements are admissible to corroborate the witness\u2019s sworn trial testimony; and (2) the variations in the mother\u2019s testimony at trial do not directly contradict her statement given to the officer, but instead the information in the statement was substantially similar to and tended to strengthen and confirm her testimony at trial regarding the alleged sexual abuse.\n3. Criminal Law\u2014 jury instruction \u2014 definition of corroboration\nThe trial court did not err in a first-degree sexual offense and first-degree kidnapping of a female minor case by allegedly failing to properly define corroboration in a jury instruction regarding a statement of the female minor\u2019s mother to an officer, because: (1) the failure of a trial court to define corroboration in a jury instruction is not error; and (2) defendant did not object to this instruction, nor did he request an additional instruction.\n4. Discovery\u2014 late revelation \u2014 failure to disclose defendant\u2019s statements\nThe trial court did not abuse its discretion in a first-degree sexual offense and first-degree kidnapping of a female minor case by overruling defendant\u2019s objections to the admission of statements he made that were allegedly not provided to him through discovery, because: (1) the State learned about one of the statements the day before trial, the trial court found the statement was a similar and related descriptive phrase, and there is no showing that this late revelation upset defendant\u2019s overall strategy or that he was otherwise prejudiced by the late discovery; and (2) where trial testimony is substantially similar to what in substance was provided during discovery and variations are attributable to the addition or elaboration of detail or merely changes in vocabulary or syntax, the testimony is admissible and in full compliance with our discovery rules.\n5. Indictment and Information\u2014 short-form \u2014 first-degree sexual offense\nThe trial court did not err by finding an indictment for first-degree sexual offense to be constitutionally valid, because the indictment complied with N.C.G.S. \u00a7 15-144.2 which authorizes a short-form indictment for the crime of first-degree sexual offense.\nAppeal by defendant from judgment entered 8 March 2001 by Judge W. Erwin Spainhour in Superior Court, Rowan County. Heard in the Court of Appeals 14 August 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Diane G. Miller, for the State.\nRudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for the defendant-appellant." }, "file_name": "0608-01", "first_page_order": 636, "last_page_order": 647 }