{ "id": 8997581, "name": "STATE OF NORTH CAROLINA v. RANDY WAYNE BINGHAM", "name_abbreviation": "State v. Bingham", "decision_date": "2004-07-20", "docket_number": "No. COA03-1137", "first_page": "355", "last_page": "368", "citations": [ { "type": "official", "cite": "165 N.C. App. 355" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7\u00a7 15-144.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "247 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "883-84" } ], "opinion_index": 0 }, { "cite": "295 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566427 ], "year": 1978, "pin_cites": [ { "page": "603-04" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0596-01" ] }, { "cite": "531 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9716648, 9716724 ], "year": 2001, "pin_cites": [ { "parenthetical": "noting the \"overwhelming case law approving the use of short-form indictments and the lack of a federal mandate to change that determination\"" } ], "opinion_index": 0, "case_paths": [ "/us/531/1120-01", "/us/531/1120-02" ] }, { "cite": "531 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679042, 9678662, 9678761, 9678795, 9678864, 9678962, 9678739, 9678834, 9678903, 9678645, 9678999, 9678940, 9678686, 9678719 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/1018-14", "/us/531/1018-02", "/us/531/1018-06", "/us/531/1018-07", "/us/531/1018-09", "/us/531/1018-12", "/us/531/1018-05", "/us/531/1018-08", "/us/531/1018-10", "/us/531/1018-01", "/us/531/1018-13", "/us/531/1018-11", "/us/531/1018-03", "/us/531/1018-04" ] }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "449 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "338 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2521132 ], "year": 1994, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0244-01" ] }, { "cite": "572 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "229" }, { "page": "229" } ], "opinion_index": 0 }, { "cite": "154 N.C. 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App.", "case_ids": [ 8527157 ], "year": 1988, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0453-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. 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RANDY WAYNE BINGHAM" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nRandy Wayne Bingham (\u201cdefendant\u201d) appeals his convictions of six of the seven counts of statutory rape, six of the seven counts of statutory sexual offense and seven counts of indecent liberties with a child. For the reasons stated herein we conclude that the trial court erred by denying defendant\u2019s motion to dismiss two of the counts of statutory sex offense. We also conclude that one of the trial court\u2019s aggravating factors for sentencing was not supported by the evidence, and we remand this case for resentencing.\nThe evidence presented at trial tends to show the following: In November 2000, defendant was dating Diana Lewis (\u201cDiana\u201d). Defendant was fifty-one years old. Defendant and Diana lived in separate houses on Central Avenue in High Point, North Carolina. Diana lived with her daughter, Haley Brooks (\u201cHaley\u201d), and her son, David Brooks (\u201cDavid\u201d). On 13 November 2000, Haley turned thirteen years old. Diana and Haley were at defendant\u2019s house when defendant presented Haley with a vibrating sex instrument as a birthday gift. Haley declined the gift. Defendant told Haley that it was Diana\u2019s fantasy for Diana and defendant to teach Haley about sex. Haley responded negatively. Defendant and Diana told Haley that she could either \u201cbe in their circle\u201d or pack her bags and go live with her grandmother.\nHaley left defendant\u2019s house, went to the house that she shared with Diana and David, and began to pack her belongings in a bag. Diana went to the house, spoke with Haley, and brought her back to defendant\u2019s house. Either on that night or a few days later, defendant told Haley that he wanted to have sex with her. Haley refused. Defendant aggressively pursued Haley until, out of fear, she undressed and laid on defendant\u2019s bed. Defendant engaged in vaginal intercourse with Haley.\nA few days later, Haley was at defendant\u2019s house when he led her into his bedroom. Defendant and Diana performed cunnilingus on Haley, and defendant engaged in vaginal intercourse with Haley. Defendant asked Haley to perform fellatio on him, but she refused.\nIn December 2000, Diana, Haley and David moved into defendant\u2019s two-bedroom house. Defendant and Diana shared one bedroom. Haley and David shared the other bedroom. On or around 25 December 2000, defendant gave Diana and Haley matching lingerie, which included sheer negligees, stockings, and thong underwear. Defendant had Diana and Haley wear the lingerie as he took photographs of the three of them engaged in sexual poses.\nAfter Haley\u2019s birthday in November, defendant would engage in sex with her as many as three times per week. On some occasions, Diana would participate in sex with defendant and Haley. Defendant also forced Haley to watch pornographic videos with him and to drink alcoholic beverages. Defendant and Diana eventually moved Haley\u2019s bed into their bedroom. Haley slept in the bedroom with defendant and Diana, and David slept in the other bedroom.\nOn 14 February 2001, defendant and Diana engaged in sexual intercourse with Haley. On 12 July 2001, defendant suggested that Haley perform cunnilingus on Diana. Diana had complained to defendant that Haley \u201cnever did anything for her\u201d and that Haley \u201cnever pleased her.\u201d Haley first refused to perform cunnilingus on Diana, but relented out of fear of defendant.\nOne evening in August 2001, defendant and Haley were cooking dinner outside on a grill when defendant asked Haley to have sex with him. Haley refused because the next-door neighbor was in his yard. Defendant told Haley that if she did not let him have sex with her, he would push her on the ground and rape her. Haley relented and allowed defendant to have vaginal intercourse with her. Diana came home from work later that evening and Haley told Diana that defendant forced her to have sex with him. Diana became angry with defendant and argued with him.\nOn the weekend of 15 and 16 September 2001, defendant\u2019s daughter, Sara, was visiting defendant\u2019s house pursuant to the custody arrangement between defendant and his former wife, Lisa Miller (\u201cLisa\u201d). At approximately 1:00 a.m. on 16 September 2001 defendant telephoned Lisa, told her that he and Diana had been fighting, and indicated that she should come to pick Sara up immediately. When Lisa arrived, Diana and Haley told them about defendant\u2019s abusive behavior toward Haley. Lisa took Sara home and subsequently called the Guilford County Department of Social Services (\u201cDSS\u201d).\nDSS Child Protective Services investigator Clayton Coward (\u201cCoward\u201d) visited defendant\u2019s house on 18 September 2001 to investigate Lisa\u2019s claims. Coward interviewed Haley and Diana separately about defendant\u2019s abusive behavior toward Haley. Haley and Diana provided Coward with handwritten statements describing defendant\u2019s abusive behavior. Coward then took Haley and David into protective custody and placed them in a foster home. Pursuant to the DSS investigation, defendant was arrested on 18 October 2001 in Pensacola, Florida, and indicted on seven counts of statutory rape, seven counts of statutory sex offense, and seven counts of indecent liberties with a child. Following a jury trial, at which defendant presented no evidence, defendant was convicted of six counts of statutory rape, six counts of statutory sex offense, and seven counts of indecent liberties with a child. It is from these convictions that defendant appeals.\nAs an initial matter, we note that defendant\u2019s brief contains arguments supporting only eight of the original forty-six assignments of error on appeal. The thirty-eight omitted assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6) (2004). We therefore limit our review to those assignments of error properly-preserved by defendant for appeal.\nThe issues presented on appeal are whether the trial court erred by (I) denying defendant\u2019s motion to dismiss all charges at the close of the State\u2019s evidence; (II) allowing jurors to view the handwritten statements by Diana and Haley during deliberations; (III) finding improper aggravating factors during sentencing; and (IV) accepting short-form indictments for the charges against defendant.\nDefendant first assigns error to the failure by the trial court to dismiss four of the counts of statutory rape and four of the counts of sex offense charges at the close of the' State\u2019s evidence.\nIn ruling on a motion to dismiss, \u201cthe trial court must determine whether there is substantial evidence of each essential element of the offense charged.\u201d State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When reviewing the evidence, the trial court must consider even incompetent evidence in the light most favorable to the prosecution, granting the State the benefit of every reasonable inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).\nThe criminal statute for statutory rape or sexual offense of a person who is thirteen, fourteen, or fifteen years old provides that \u201c[a] defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person . . . .\u201d N.C. Gen. Stat. \u00a7 14-27.7A(a) (2003). The term \u201crape\u201d is defined by statute as vaginal intercourse. See N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a) and 14-27.3(a) (2003). The slightest penetration of the female sex organ by the male sex organ constitutes vaginal intercourse. State v. Summers, 92 N.C. App. 453, 456, 374 S.E.2d 631, 633 (1988), cert. denied, 324 N.C. 341, 378 S.E.2d 806 (1989). See also N.C. Gen. Stat. \u00a7 14-27.10 (2003). The term \u201csexual act\u201d is defined in pertinent part as \u201ccunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.\u201d N.C. Gen. Stat. \u00a7 14-27.1(4) (2003).\nIn the present case, defendant argues that the trial court should have granted his motion to dismiss with respect to the charge of statutory sex offense on or between 1 December 2000 and 31 January 2001. We disagree.\nAt trial, Haley testified that defendant gave her lingerie on \u201cChristmas Night.\u201d Haley further testified that she and her mother put on the lingerie, and that \u201c[h]e took pictures of my mother and I, and I took pictures of him and my mother, and . . . my mom took pictures of me and him.\u201d These pictures were taken with a Polaroid camera. Haley testified that some of the pictures taken that evening, which were destroyed before trial, depicted defendant performing cunnilingus on Haley, engaging in vaginal intercourse with Haley, and Haley performing fellatio on defendant. Haley testified that these were \u201cjust poses. None of that actually happened, not that I remember. They were, that was just the way that they had us, that they told me to pose for the pictures.\u201d The district attorney asked Haley if there was \u201cany other time in December when anything happened of a sexual nature.\u201d Haley replied, \u201cNot that I can remember at this time.\u201d\nDiana testified that defendant gave Haley the lingerie \u201c[t]wo days after Christmas.\u201d The district attorney also questioned Diana about the pictures as follows:\nQ: Now, in the pictures you described it as posing?\nA: Yes, sir.\nQ: Were you performing any sexual acts in the pictures?\nA: No, sir.\nQ: Just pretending?\nA: Yes, sir.\nThe district attorney later asked Diana if any sexual activity occurred that night. Diana said that \u201cMr. Bingham had oral sex with [Haley].\u201d\nWe conclude that Diana\u2019s testimony that defendant performed cunnilingus on Haley is sufficient to overcome defendant\u2019s motion to dismiss the charge of statutory sex offense. We recognize the discrepancy between Haley\u2019s testimony and Diana\u2019s testimony about whether any sexual activity occurred between defendant and Haley that evening. However, \u201c[i]n considering a motion to dismiss, the trial court is concerned only with the sufficiency of the evidence, not with the weight of the evidence.\u201d State v. Lowery, 318 N.C. 54, 71, 347 S.E.2d 729, 741 (1986), citing State v. Gonzalez, 311 N.C. 80, 316 S.E.2d 229 (1984). Accordingly, we hold that the trial court did not err by denying defendant\u2019s motion to dismiss the charge of statutory sex offense on or between 1 December 2000 and 31 January 2001.\nDefendant next argues that the trial court should have granted his motion to dismiss with respect to the charges of statutory rape on or between 1 December 2000 and 31 January 2001, statutory rape on or between 1 March 2001 and 30 April 2001, statutory sex offense on or between 1 March 2001 and 30 April 2001, statutory rape on or between 1 May 2001 and 30 June 2001, and statutory sex offense on or between 1 May 2001 and 30 June 2001. Defendant argues that the State did not present evidence of specific sexual acts that occurred during those time periods. Defendant contends that because \u201cno evidence tied to the dates referenced in these indictments was offered,\u201d the evidence raises only suspicion or conjecture regarding the commission of the offenses and the identity of the perpetrator.\nDefendant\u2019s argument is similar to the argument presented in State v. Burton, 114 N.C. App. 610, 442 S.E.2d 384 (1994). In Burton, the accusing witnesses alleged that the defendant sexually abused them \u201ctwo or three times a week\u201d between 1975 and 1976. 114 N.C. App. at 613-14, 442 S.E.2d at 386. The defendant argued that \u201cthe State failed to produce sufficient evidence establishing that the incidents alleged therein occurred during the time periods stated in the indictments.\u201d 114 N.C. App. at 612, 442 S.E.2d at 385. This Court held that\nIn cases involving allegations of child sex abuse, temporal specificity requirements are further diminished. Children frequently cannot recall exact times and dates; accordingly, a child\u2019s uncertainty as to the time of the offense goes only to the weight to be given that child\u2019s testimony. Judicial tolerance of variance between the dates alleged and the dates proved has particular applicability where, as in the case sub judice, the allegations concern instances of child sex abuse occurring years before. Unless a defendant demonstrates that he was deprived of the opportunity to present an adequate defense due to the temporal variance, the policy of leniency governs.\n114 N.C. App. at 613, 442 S.E.2d at 386 (citations omitted). Based on these principles, this Court concluded that defendant\u2019s motion to dismiss was properly denied. 114 N.C. App. at 614, 442 S.E.2d at 386.\nIn the case sub judice, Haley testified that between 13 November 2000 and August 2001, defendant engaged in sexual activity with her twenty-five to forty times. When the district attorney asked Haley if she could remember details of the abuse, Haley testified that she could not \u201cbecause it happened so many times, but it was basically the same thing over and over again.\u201d The district attorney later engaged in the following dialogue with Haley:\nQ: Once things started on November the 13th, at your birthday, how often would things occur of a sexual nature between you and Randy Bingham?\nA: Sometimes they were like once a week and then sometimes it was twice a week or three times a week, or, you know, like as much as possible for him.\nQ: And was that, when you say it happened sometimes those many times per week, was that every week, [Haley]?\nA: It could be like every other week.\nQ: Would it be fair and accurate to say, [Haley], that something occurred of a sexual nature on some repeated interval over the period from November the 13th [of 2000] until August of 2001?\nA: Yes.\nQ: And on each occasion when something would happen, what would be the sexual activity?\nIn response to the last question, Haley testified that defendant would digitally penetrate her vagina, and engage in fellatio, cunnilingus and vaginal intercourse with her.\nBased on this testimony, and in accordance with Burton, we, conclude that the trial court properly denied defendant\u2019s motion to dismiss the aforementioned charges.\nDefendant next argues that the trial court should have granted his motion to dismiss with respect to the charge of statutory sex offense on or about 12 July 2001. We agree.\nHaley testified on direct examination about the events of 12 July 2001 as follows:\nQ: Do you remember the date that [defendant] had had [sic] you perform oral sex on your mom for the first time?\nA: July 12th, I believe.\nQ: Of 2001?\nA: Yes.\nQ: Tell the jury about that date, what occurred then?\nA: My mom had just gotten home from work and they had an argument about, well, my mom brought up the fact that I never did anything for her and she said that there was no point because I never pleased her or anything. And Randy got all mad and everything and he came in there and he started yelling at me saying, you need to start doing stuff for your mom and all of this. And I said, well, I\u2019m not about to go down on my mom, because for one thing I think it\u2019s disgusting and for another thing, it\u2019s my mom and I would never do anything like that. And he got really mad and then my mom came in there and he said, I\u2019d better go down on her now. So of course him being like ten times stronger than me, and of course, me being scared of him, I did it. And I mean, you know, if you were scared you\u2019d probably do it, too.\nQ: Well, what happened sexually on July the 12th other than . performing oral sex on your mom?\nA: Nothing that I remember.\nQ: Nothing happened between you and Randy Bingham?\nA: Not that I remember.\nWe conclude that defendant\u2019s actions on 12 July 2001 do not fall within the definition of statutory sexual offense as provided in \u00a7 14-27.7A. There was no sexual act between Haley and defendant on that date. Assuming arguendo that there was sufficient evidence to support defendant\u2019s conviction of statutory sexual offense on an aider and abettor theory, the record is clear that the State did not proceed on this theory. At no time did the State seek to prove that defendant aided or abetted another or seek a jury instruction regarding his role as a non-principal participant in the crime. Accordingly, we conclude that the trial court erred by denying defendant\u2019s motion to dismiss this charge.\nDefendant also argues that the trial court should have granted his motion to dismiss with respect to the charge of statutory sex offense on or about 20 August 2001. We agree.\nHaley testified on direct examination that on or about 20 August 2001 defendant coerced her into engaging in vaginal intercourse outside of their home. Defendant concedes that this evidence is sufficient to uphold his conviction of statutory rape on this date. However, he contends that there was no evidence of a separate sexual offense as defined by statute. We agree. Defendant\u2019s actions with Haley on or about 20 August 2001 do not come within the definition of statutory sexual offense discussed supra. We conclude that' the trial court erred by denying defendant\u2019s motion to dismiss the charge of statutory sex offense on 20 August 2001.\nDefendant next argues that the trial court committed prejudicial error by allowing jurors to take the handwritten statements by Diana and Haley into the jury room during deliberations. We disagree.\n\u201cUpon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received into evidence.\u201d N.C. Gen. Stat. \u00a7 15A-1233(b) (2003). Where the trial court allows the jury to take such evidence into the jury room over a party\u2019s objection, this Court may correct the error if it is prejudicial to the defendant. N.C. Gen. Stat. \u00a7 15A-1442(6) (2003); see State v. Taylor, 56 N.C. App. 113, 115, 287 S.E.2d 129, 130-31 (1982). On appeal, the defendant must demonstrate that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d Taylor, 56 N.C. App. at 115, 287 S.E.2d at 130-31.\nIn the case sub judice, defendant did not consent to the two handwritten statements being permitted in the jury room during deliberations. Thus, we conclude that the trial court erred in permitting the statements to be taken into the jury room. The question we must next consider is whether this error was prejudicial in that there was a reasonable possibility that, but for the error, a different trial outcome would have resulted. The evidence provided in the written statements is identical to the evidence presented by Diana and Haley on direct examination. Thus, the written statements did not provide the jury with any evidence that was not already presented at trial. Accordingly, we conclude that there is no reasonable possibility that the jury would have reached a different verdict if they had not been allowed to take the written statements into the jury room during deliberations. This assignment of error is overruled.\nDefendant next argues that the trial court erred by improperly finding two aggravating factors. The trial court found as aggravating factors in each of the judgments that (1) \u201cThe defendant induced others to participate in the commission of the offense;\u201d (2) \u201cThe defendant joined with more than one other person in committing the offense and was not charged with committing a conspiracy;\u201d and (3) \u201cThe defendant took advantage of a position of trust or confidence to commit the offense.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(d)(l), (d)(2) and (d)(15) (2003). The trial court then sentenced defendant in the aggravated range.\nDefendant argues that the trial court erred by finding that defendant took advantage of a position of trust or confidence to commit the offense. We disagree.\nA finding that a defendant took advantage of a position of trust or confidence depends on \u201cthe existence of a relationship between the defendant and victim generally conducive to reliance of one upon the other.\u201d State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216, 218 (1987). In State v. McGriff, 151 N.C. App. 631, 566 S.E.2d 776 (2002), this Court held that where prior to the incidents leading to the defendant\u2019s convictions, the victim knew the defendant because defendant was dating and living with her friend\u2019s sister, the victim and her friend visited defendant\u2019s house every day after school, and the victim had known defendant for approximately two months, there was sufficient evidence that defendant took advantage of a position of trust. 151 N.C. App. at 640, 566 S.E.2d at 781-82.\nIn the present case, the evidence tends to show that Haley met defendant when defendant and Diana began dating in November 1999. Diana, Haley and David moved into 'defendant\u2019s house in December 1999 and lived there until July 2000 when they moved into a house down the street. Diana, Haley and David lived apart from defendant until December 2000 when they moved back into his home. Therefore, defendant had known Haley for one year, and lived in the same house as Haley for seven months of that year, before he began to abuse her. We conclude, in accordance with McGriff, that this is sufficient evidence that defendant took advantage of a position of trust or confidence to commit the offenses of which he was convicted.\nDefendant also argues that the evidence does not support the finding that defendant joined with more than one person in committing the offenses. We agree.\nThe evidence presented at trial tends to show that defendant and Diana were the only persons sexually abusing Haley. There is no evidence to implicate the involvement of a third person. Thus, we conclude that the trial court erred by finding that defendant joined with more than one other person in committing the offenses. See State v. Moses, 154 N.C. App. 332, 340, 572 S.E.2d 223, 229 (2002).\n\u201c \u2018When the trial judge errs in finding an aggravating factor and imposes a sentence in excess of the presumptive term, the case must be remanded for a new sentencing hearing.\u2019 \u201d Moses, 154 N.C. App. at 340, 572 S.E.2d at 229, quoting State v. Wilson, 338 N.C. 244, 259, 449 S.E.2d 391, 400 (1994). Accordingly, we remand this case for resentencing.\nDefendant\u2019s final argument is that the trial court erred by accepting short-form indictments for the statutory rape and statutory sexual offense charges against defendant. We disagree.\nDefendant acknowledges that the North Carolina Supreme Court has held that the use of short-form indictments is constitutional. See State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343, cert. denied, 531 U.S. 1018 (2000), reh\u2019g denied, 531 U.S. 1120 (2001) (noting the \u201coverwhelming case law approving the use of short-form indictments and the lack of a federal mandate to change that determination\u201d); State v. Lowe, 295 N.C. 596, 603-04, 247 S.E.2d 878, 883-84 (1978); N.C. Gen. Stat. \u00a7\u00a7 15-144.1 and 15-144.2 (2003). Yet defendant raises these arguments to preserve them for later review. As this Court is bound by the Supreme Court\u2019s holding in Wallace, we overrule this assignment of error.\nFor the aforementioned reasons, we conclude that the trial court committed no prejudicial error with regard to defendant\u2019s convictions of statutory sex offense on or between 1 December 2000 and 31 January 2001, statutory rape on or between 1 December 2000 and 31 January 2001, statutory sex offense on or between 1 March 2001 and 30 April 2001, statutory rape on or between 1 March 2001 and 30 April 2001, statutory sex offense on or between 1 May 2001 and 30 June 2001, and statutory rape on or between 1 May 2001 and 30 June 2001. We reverse defendant\u2019s convictions of statutory sex offense on or about 12 July 2001 and statutory sex offense on or about 20 August 2001. We also conclude that the trial court erred in sentencing defendant.\nNO ERROR in part,' REVERSED in part, and REMAND for resentencing.\nChief Judge MARTIN and Judge HUNTER concur.\n. To protect the identities of the witnesses in this case, the mother will be referred to by the pseudonym \u201cDiana Lewis.\u201d The minor children will be referred to by the pseudonyms \u201cHaley Brooks\u201d and \u201cDavid Brooks.\u201d\n. To protect the identities of the witnesses in this case, defendant\u2019s daughter will be referred to by the pseudonym \u201cSara,\u201d and his former wife will be referred to by the pseudonym \u201cLisa Miller.\u201d", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper by Assistant Attorney General Anne M. Middleton for the State.", "Paul Pooley for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RANDY WAYNE BINGHAM\nNo. COA03-1137\n(Filed 20 July 2004)\n1. Sexual Offenses\u2014 statutory \u2014 evidence sufficient\nOn a motion to dismiss, the court is concerned only with the sufficiency of the evidence and not its weight. Defendant\u2019s motion to dismiss a statutory sex offense charge was properly denied where most of the evidence was that the alleged sexual acts were merely poses for photographs, but there was some testimony that defendant, age 51, performed cunnilingus on the 13-year-old victim.\n2. Rape; Sexual Offenses\u2014 statutory \u2014 specificity of evidence \u2014 sufficient\nThe testimony of a 13-year-old statutory rape and sexual offense victim that certain sexual acts occurred with defendant 25-40 times at intervals during an 8 month period was sufficient to deny defendant\u2019s motion to dismiss, although the victim could not remember the details because it was . . basically the same thing over and over again.\u201d\n3. Sexual Offenses\u2014 statutory \u2014 sufficiency of evidence\u2014 activity with another with defendant watching\nA charge of statutory sex offense should have been dismissed where there was evidence that defendant forced the victim to perform cunnilingus on her mother, but there was no activity between the victim and defendant. The State did not proceed on an aiding and abetting theory.\n4. Sexual Offenses\u2014 statutory \u2014 evidence of rape \u2014 no other activity \u2014 evidence not sufficient\nThe trial court should have dismissed a charge of statutory sex offense where there was sufficient evidence of statutory rape, but no evidence of a separate sexual offense.\n5. Criminal Law\u2014 jury deliberations \u2014 written statements in jury room \u2014 not prejudicial\nAllowing the jury to take written statements from a statutory \u2022rape and sex offense victim and her mother into the jury room during deliberations was not prejudicial where the evidence was identical to that presented on direct examination.\n6. Sentencing\u2014 aggravating factors \u2014 position of trust or confidence \u2014 dating victim\u2019s mother\nThere was no error in finding in aggravation that a statutory rape and sex offense defendant took advantage of a position of trust or confidence where defendant was dating the victim\u2019s mother and they all lived in defendant\u2019s house for a time before the abuse began.\n7. Sentencing\u2014 aggravating factors \u2014 joining with more than one other person \u2014 evidence not sufficient\nThe trial court should not have found in aggravation that a statutory rape and sex offense defendant joined with more than one other person in committing the offenses. The evidence at trial was that defendant and the victim\u2019s mother were the only ones abusing her.\n8. Rape; Sexual Offenses\u2014 short form indictment \u2014 statutory rape and statutory sexual offense\nThere was no error in using the short form indictment for statutory rape and statutory sexual offense.\nAppeal by defendant from judgment entered 9 December 2002 by Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 7 June 2004.\nAttorney General Roy Cooper by Assistant Attorney General Anne M. Middleton for the State.\nPaul Pooley for the defendant." }, "file_name": "0355-01", "first_page_order": 387, "last_page_order": 400 }