{ "id": 8376672, "name": "STATE OF NORTH CAROLINA v. STANLEY ARNOLD BROWN", "name_abbreviation": "State v. Brown", "decision_date": "2006-06-20", "docket_number": "No. COA05-943", "first_page": "189", "last_page": "197", "citations": [ { "type": "official", "cite": "178 N.C. App. 189" } ], "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": "612 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632817 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "370", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0366-01" ] }, { "cite": "615 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633348 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "690", "parenthetical": "footnote omitted" }, { "page": "693", "parenthetical": "invoking Rule 2 to review evidence in the Court's discretion to prevent manifest injustice" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0688-01" ] }, { "cite": "398 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527385 ], "year": 1990, "pin_cites": [ { "page": "150-51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0144-01" ] }, { "cite": "442 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "386", "parenthetical": "citation omitted" }, { "page": "386" }, { "page": "386" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527862 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "612", "parenthetical": "citation omitted" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0610-01" ] }, { "cite": "533 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "252", "parenthetical": "citations omitted" }, { "page": "252", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495702 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "24", "parenthetical": "citations omitted" }, { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0018-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "170 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005493 ], "year": 2005, "pin_cites": [ { "page": "379", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0374-01" ] }, { "cite": "568 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "294", "parenthetical": "holding \"[e]vidence of defendant's mere possession of pornographic materials does not tend 'to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence' \"" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250759 ], "year": 2002, "pin_cites": [ { "page": "522", "parenthetical": "holding \"[e]vidence of defendant's mere possession of pornographic materials does not tend 'to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0514-01" ] }, { "cite": "595 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "719", "parenthetical": "finding error in admission of pornographic videotapes when there was \"no evidence that defendant provided pornographic videotapes to [the victim] or employed the tapes to seduce [the victim]\"" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896816 ], "year": 2004, "pin_cites": [ { "page": "261", "parenthetical": "finding error in admission of pornographic videotapes when there was \"no evidence that defendant provided pornographic videotapes to [the victim] or employed the tapes to seduce [the victim]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0254-01" ] }, { "cite": "364 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "129" }, { "page": "128" }, { "page": "129" } ], "opinion_index": 0 }, { "cite": "321 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567611 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0528-01" ] }, { "cite": "350 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "355" }, { "page": "357" }, { "page": "358" } ], "opinion_index": 0 }, { "cite": "318 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737531 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0624-01" ] }, { "cite": "540 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "353 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135728 ], "year": 2000, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0050-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "273 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "302 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564177 ], "year": 1981, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0157-01" ] }, { "cite": "302 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "790" } ], "opinion_index": 0 }, { "cite": "308 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705445 ], "year": 1983, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0530-01" ] }, { "cite": "355 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "493" } ], "opinion_index": 0 }, { "cite": "319 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742094 ], "year": 1987, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0437-01" ] }, { "cite": "171 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438167 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "521", "parenthetical": "footnote omitted" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0518-01" ] } ], "analysis": { "cardinality": 765, "char_count": 17521, "ocr_confidence": 0.749, "pagerank": { "raw": 6.320185726887934e-08, "percentile": 0.38857188199003106 }, "sha256": "d077a805e780c9a764824fa990292df63c095ce237bb8e54a66880e536492d79", "simhash": "1:9929d033ee3b0e5c", "word_count": 2955 }, "last_updated": "2023-07-14T17:18:34.747306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STANLEY ARNOLD BROWN" ], "opinions": [ { "text": "HUNTER, Judge.\nStanley Arnold Brown (\u201cdefendant\u201d) appeals from judgments entered 13 January 2005 consistent with jury verdicts finding him guilty of two counts of statutory sexual offense of a person thirteen years old. For the reasons stated herein, we find no error.\nThe evidence tends to show that defendant resided with the family of Sarah for several years and was involved for some time in a relationship with Sarah\u2019s grandmother, her primary caretaker. During the summer and fall of 2003, defendant began to touch Sarah\u2019s breasts and vagina. Sarah was twelve years old at that time. In December of 2003, Sarah testified that while watching a movie in defendant\u2019s room, defendant pulled down her pants and placed his penis in her vagina. Sarah stated that a second incident occurred later while she was playing a video game in defendant\u2019s room. Defendant entered the room, threw her on the bed, pulled down her pants, and stuck his penis in her vagina. Sarah stated that her family moved away from defendant after her thirteenth birthday, 16 April 2004. Sarah testified that no further incidents occurred after her family moved away from defendant.\nTestimony was also offered by Odie Rollings (\u201cRollings\u201d), a federal inmate housed at the Pitt County Jail, in corroboration of Sarah\u2019s testimony. Rollings testified defendant told Rollings he had sex with Sarah twice. Rollings stated that defendant told him the first time he touched Sarah was in December 2003, and the second time was while defendant was in his room playing video games.\nDefendant testified at trial that he had not touched Sarah inappropriately and had not raped her.\nDefendant was convicted of two counts of statutory sex offense of a person thirteen years old, and was sentenced to consecutive sentences of 240 to 297 months. Upon motion to the trial court by the State, the judgment in 04CRS002310 was*set aside. Defendant appeals from his judgment and conviction in 04CRS003406.\nI.\nDefendant first contends the trial court erred in overruling defendant\u2019s motion in limine to exclude photographs of nude women and in admitting the photographs into evidence. We disagree.\nDefendant relied on the amended Rule 103(a) of the North Carolina Rules of Evidence in effect at the time of trial, which directed, \u201c[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2005). This Court has recently held Rule 103 to be inconsistent with Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure. State v. Tutt, 171 N.C. App. 518, 521, 615 S.E.2d 688, 690 (2005) (footnote omitted) (stating that \u201cRule 103(a)(2) of the North Carolina Rules of Evidence is in direct conflict with Rule 10(b)(1) of the Rules of Appellate Procedure as interpreted by our case law on point[,]\u201d in accord with previous Supreme Court opinions, State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987), State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983), and State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664 (1981), striking down statutes providing review of errors even though no objection, exception or motion was made in the trial division). We note that we are bound by the prior decisions of this Court. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nRule 10(b)(1) of the North Carolina Rules of Appellate Procedure states, in part, that \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion[.]\u201d N.C.R. App. P. 10(b)(1). \u201c[A] motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.\u201d State v. Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723 (2000). Defendant offered no objection to the admission of the photographs at issue at trial, and failed to preserve the issue for review.\nHowever, as defendant relied on a procedural statute presumed constitutional at the time of trial, it would be a manifest injustice to not review defendant\u2019s appeal on the merits. We therefore review this assignment of error in our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. N.C.R. App. P. 2.; see Tutt, 171 N.C. App. at 524, 615 S.E.2d at 693 (invoking Rule 2 to review evidence in the Court\u2019s discretion to prevent manifest injustice).\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2005) states in part that:\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.\nId. In State v. Williams, 318 N.C. 624, 350 S.E.2d 353 (1986), evidence was offered by the defendant\u2019s wife, the victim\u2019s step-mother, that the defendant had taken her and the victim to an X-rated drive-in movie with explicit sexual scenes, and had encouraged the victim to look at them. Id. at 626-27, 350 S.E.2d at 355. The defendant in Williams contended that such evidence was impermissible character evidence and should not have been admitted. Id. at 631, 350 S.E.2d at 357. Williams found that the evidence of the \u201cdaughter\u2019s presence at the film at defendant\u2019s insistence, and his comments to her show[ed] his preparation and plan to engage in sexual intercourse with her and assisted] in that preparation and plan by making her aware of such sexual conduct and arousing her.\u201d Id. at 632, 350 S.E.2d at 358.\nIn State v. Rael, 321 N.C. 528, 364 S.E.2d 125 (1988), the defendant also contended that the admission of evidence which included pornographic magazines and movies was error, as the items \u201ctended to prove only the character of the defendant in order to show that he acted in conformity therewith.\u201d Id. at 534, 364 S.E.2d at 129. In Rael, the victim testified that on the day of the incident, the defendant had shown him pornographic magazines and movies. Id. at 533, 364 S.E.2d at 128. Rael found that the videotapes, magazines, and testimony concerning them were relevant to corroborate the victim\u2019s testimony, and were therefore admissible. Id. at 534, 364 S.E.2d at 129.\nHere, Sarah testified that defendant showed her four photographs of nude adult women with whom she was acquainted prior to the first time defendant engaged in a sexual act with her, and that defendant told her that he was going to take similar pictures of her. Sarah further testified that defendant attempted to take pictures of her, but that defendant was unable to get her grandmother\u2019s camera. The admission of the photographs into evidence served to corroborate Sarah\u2019s testimony of defendant\u2019s actions and provided evidence of a plan and preparation to engage in sexual activities with her.\nUnlike in the cases of State v. Bush and State v. Smith cited by defendant, where the proffered evidence at trial were not items shown to the victim, the photographs admitted here, like the movie in Williams and the videotapes and magazines in Rael, were shown to the victim and demonstrated defendant\u2019s preparation and planning to engage in sexual acts with the victim. See State v. Bush, 164 N.C. App. 254, 261, 595 S.E.2d 715, 719 (2004) (finding error in admission of pornographic videotapes when there was \u201cno evidence that defendant provided pornographic videotapes to [the victim] or employed the tapes to seduce [the victim]\u201d); State v. Smith, 152 N.C. App. 514, 522, 568 S.E.2d 289, 294 (2002) (holding \u201c[e]vidence of defendant\u2019s mere possession of pornographic materials does not tend \u2018to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence\u2019 \u201d). As the photographs were admitted for a permissible purpose other than to show defendant\u2019s character in conformity therewith, we find no error in the trial court\u2019s admission of the evidence. Defendant\u2019s assignment of error is overruled.\nII.\nDefendant next contends the trial court erred in failing to dismiss the charges against defendant for insufficient evidence. We disagree.\n\u201c \u2018In ruling on a motion to dismiss the trial court is to consider the evidence in the light most favorable to the State.\u2019 \u201d State v. Buff, 170 N.C. App. 374, 379, 612 S.E.2d 366, 370 (2005) (citation omitted). \u201c \u2018In so doing, the State is entitled to every reasonable intendment and every reasonable inference to be drawn from the evidence; contradictions and discrepancies do not warrant dismissal of the case\u2014they are for the jury to resolve.\u2019 \u201d Id. \u201cThe court is to consider all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State.\u201d State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).\nDefendant was charged with a violation of N.C. Gen. Stat. \u00a7 14-27.7A, statutory sexual offense of a person thirteen years old. N.C. Gen. Stat. \u00a7 14-27.7A(a) (2005) states:\nA 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, except when the defendant is lawfully married to the person.\nId. Defendant here was indicted for commission of a sexual act with a thirteen-year-old. A sexual act for the purposes of the statute is defined as, \u201ccunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person\u2019s body].] N.C. Gen. Stat. \u00a7 14-27.1(4) (2005).\nDefendant contends that insufficient evidence was offered to show that defendant committed a sexual act, in this case insertion of his finger into the victim\u2019s vagina, while she was thirteen years of age. A review of the transcript shows that Sarah testified that defendant \u201cstuck his fingers in [her] vagina\u201d while she was thirteen years old and living at the address on South Drive her family shared with defendant. When taken in the light most favorable to the State, such testimony provides substantial evidence sufficient to survive a motion to dismiss for insufficient evidence. Defendant\u2019s assignment of error is overruled.\nIII.\nDefendant finally contends the trial court erred in failing to dismiss the charges against defendant and in signing and entering judgment and commitment in 04CRS003406 because of a fatal variance in the indictment and the evidence at trial. We disagree.\nThe purpose of an indictment is to give a defendant notice of the crime for which he is being charged; and it has long been established that\n\u201c[a]n indictment or criminal charge is constitutionally 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.\u201d\nState v. Bowen, 139 N.C. App. 18, 24, 533 S.E.2d 248, 252 (2000) (citations omitted). This Court has previously held that \u201c \u2018the date given in the bill of indictment is not an essential element of the crime charged and the fact that the crime was in fact committed on some other date is not fatal.\u2019 \u201d State v. Burton, 114 N.C. App. 610, 612, 442 S.E.2d 384, 386 (1994) (citation omitted). Further, we have recognized a \u201c[jjudi-cial tolerance of variance between the dates alleged and the dates proved\u201d in cases involving child sexual abuse. Id. at 613, 442 S.E.2d at 386; see also State v. Norris, 101 N.C. App. 144, 150-51, 398 S.E.2d 652, 656 (1990). \u201cUnless 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.\u201d Burton, 114 N.C. App. at 613, 442 S.E.2d at 386.\nDefendant was indicted on the grounds that \u201cbetween 3-01-04 and 6t30-04\u201d he \u201cunlawfully, willfully and feloniously did engage in a sexual act with [Sarah], a person of the age of 13 years. At the time of the offense, the defendant was at least six years older than the victim and was not lawfully married to the victim.\u201d At trial, evidence was presented that Sarah\u2019s thirteenth birthday was 16 April 2004. Defendant contends that as the evidence presented at trial showed that Sarah was twelve years of age for a portion of the time period specified in the indictment, a fatal variance occurred.\nAs discussed supra in Section II, Sarah specifically testified that one of the offenses occurred while she was thirteen years of age, prior to her move at the end of April, a date within the time period set out by the indictment. The trial court instructed the jury that:\nThe defendant, Mr. Brown, has been charged with statutory sexual offense against a victim who was thirteen years old at the time of the offense. For you to find the defendant guilty of this offense, the State must prove four things beyond a reasonable doubt.\nFirst, that the defendant engaged in a sexual act with the victim. . . .\nSecond, that at the time of the act, the victim was thirteen years old. Third, that at the time of the act, the defendant was at least six years older than the victim. And fourth, that at the time of the act, the defendant was not lawfully married to the victim.\n[I]f you find from the evidence beyond a reasonable doubt that between the dates of March 1, 2004 and April 30, 2004, the defendant engaged in a sexual act with the victim who was thirteen years old by inserting his finger into the vagina of [Sarah], and that the defendant was at least six years older than the victim, and was not lawfully married to the victim, it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.\n(Emphasis added.) The trial court properly instructed the jury that they must find that the victim was thirteen years old at the time of the act in order to find defendant guilty, and evidence presented at trial supports this instruction. Defendant does not contend that he was deprived of the opportunity to present an adequate defense due to the temporal variance in the indictment. As the indictment was sufficient to inform defendant \u201c \u2018of 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 we conclude no fatal variance existed between the indictment, the proof presented at trial, and the instructions given to the jury. Bowen, 139 N.C. App. at 24, 533 S.E.2d at 252 (citation omitted). Defendant\u2019s assignment of error is overruled.\nAs the trial court did not err in its admission of photographs or denial of defendant\u2019s motion to dismiss for insufficient evidence, and no fatal variance exists between the indictment and jury instructions, we find no error in defendant\u2019s conviction and judgment.\nNo error.\nJudges HUDSON and BRYANT concur.\n. Name changed to protect the identity of the juvenile pursuant to N.C.R. App. P. 26(g)(4).", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Anne M. Middleton, for the State.", "William D. Spence for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STANLEY ARNOLD BROWN\nNo. COA05-943\n(Filed 20 June 2006)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object\nDefendant\u2019s contention that the trial court erred by admitting certain photographs was heard on appeal despite his failure to object at trial (a motion.in limine is not sufficient) where he relied on the amended Evidence Rule 103(a) in effect at the time of trial, which has recently been held to be inconsistent with Appellate Rule 10(b)(1). Refusing to review defendant\u2019s appeal would be a manifest injustice because he relied on a procedural statute presumed constitutional at the time of trial.\n2. Evidence\u2014 prior crimes or bad acts \u2014 admissible to show preparation and planning\nThe trial court did not err in a trial for statutory sexual offense with a person thirteen years old by admitting nude photographs which defendant had shown to the victim. The photographs demonstrated defendant\u2019s preparation and planning, a permissible purpose other than showing defendant\u2019s character.\n3. Sexual Offenses\u2014 sexual act with thirteen-year-old \u2014 evidence sufficient\nThe evidence was sufficient to convict defendant of a sexual act with a thirteen-year-old.\n4. Sexual Offenses\u2014 sexual act with thirteen-year-old \u2014 variance between indictment and evidence \u2014 time of offense\nThere was not a fatal variance between the indictment and the evidence in a trial for a sexual act with a thirteen-year-old where defendant contended that the evidence showed that the victim was twelve years old during some of the time specified in the indictment, but the victim testified that she was thirteen when one of the offenses occurred. The trial court properly instructed the jury about what it must find to convict and defendant did not contend that he was deprived of the opportunity to present an adequate defense due to the variation.\nAppeal by defendant from judgments entered 13 January 2005 by Judge Cy A. Grant in Hertford County Superior Court. Heard in the Court of Appeals 15 March 2006.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Anne M. Middleton, for the State.\nWilliam D. Spence for defendant-appellant." }, "file_name": "0189-01", "first_page_order": 221, "last_page_order": 229 }