{ "id": 4168425, "name": "STATE OF NORTH CAROLINA v. RONALD DAVID LARK", "name_abbreviation": "State v. Lark", "decision_date": "2009-07-07", "docket_number": "No. COA08-1239", "first_page": "82", "last_page": "95", "citations": [ { "type": "official", "cite": "198 N.C. App. 82" } ], "court": { "name_abbreviation": "N.C. Ct. 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Gen. Stat. \u00a7 14-318.4(a) that the defendant caused serious injury and the actual injury alleged was surplusage" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11464900 ], "year": 1998, "pin_cites": [ { "page": "8", "parenthetical": "holding variance between the specific injury alleged in the indictment and the evidence at trial was not fatal where it was only necessary to allege under N.C. Gen. Stat. \u00a7 14-318.4(a" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0001-01" ] }, { "cite": "185 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "280 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571097 ], "year": 1972, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0273-01" ] }, { "cite": "478 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "492", "parenthetical": "quoting State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972)" } ], "opinion_index": 0 }, { "cite": "345 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53843 ], "year": 1996, "pin_cites": [ { "page": "57", "parenthetical": "quoting State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0043-01" ] }, { "cite": "270 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "413", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564503 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "170", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0164-01" ] }, { "cite": "448 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551747, 2551364, 2550949, 2550522, 2549564 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0697-02", "/nc/337/0697-05", "/nc/337/0697-01", "/nc/337/0697-03", "/nc/337/0697-04" ] }, { "cite": "443 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "79" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 742", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527975 ], "year": 1994, "pin_cites": [ { "page": "746" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0742-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-318.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(a2)" }, { "page": "(a2)" }, { "page": "(a2)" }, { "page": "(a)" }, { "page": "(a2)" }, { "page": "(a2)" } ], "opinion_index": 0 }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468465, 6468240, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-03", "/us/459/1018-01", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002", "parenthetical": "footnotes omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "310 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "310 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2404419 ], "year": 1984, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0118-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14.27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "439 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11327980 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "16" }, { "page": "211" }, { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/us/439/0014-01" ] }, { "cite": "478 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "510", "parenthetical": "citing Presnell v. Georgia, 439 U.S. 14, 16, 58 L. Ed. 2d 207, 211 (1978)" }, { "page": "510" }, { "page": "510-12" } ], "opinion_index": 0 }, { "cite": "345 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54214 ], "year": 1996, "pin_cites": [ { "page": "123", "parenthetical": "citing Presnell v. Georgia, 439 U.S. 14, 16, 58 L. Ed. 2d 207, 211 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0119-01" ] }, { "cite": "N.C. Gen. 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Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75", "parenthetical": "citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "557 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "147", "parenthetical": "quoting State v. 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Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971)" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98", "parenthetical": "citing State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] } ], "analysis": { "cardinality": 1094, "char_count": 33269, "ocr_confidence": 0.769, "pagerank": { "raw": 2.457251364572537e-07, "percentile": 0.805157173256047 }, "sha256": "82349a629f03f039bf962c01b1cd02ec86ab5b3c58829e6662f4218d35cc2e56", "simhash": "1:876bc26d676fb5ee", "word_count": 5366 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RONALD DAVID LARK" ], "opinions": [ { "text": "McGEE, Judge.\nRonald David Lark (Defendant) was found guilty on 4 April 2008 of indecent liberties with a child by fellatio, first-degree sexual offense by fellatio, crime against nature, and felonious child abuse. Defendant was acquitted of indecent liberties with a child by anal sex and first-degree sexual offense by anal sex. The trial court consolidated Defendant\u2019s indecent liberties with a child and first-degree sexual offense convictions and sentenced Defendant to 336 months to 413 months in prison. The trial court consolidated Defendant\u2019s crime against nature and felonious child abuse convictions and sentenced Defendant to 34 months to 50 months in prison to run consecutively with Defendant\u2019s prior judgment. Defendant appeals.\nAt trial, the State presented the following evidence. Defendant is the biological father of J.A.S., the victim. J.A.S. first began visiting Defendant in late 2002, when J.A.S. was nine years old. J.A.S. testified that on one occasion when he was visiting Defendant, Defendant called J.A.S. into the bathroom and told J.A.S. to \u201csuck [Defendant\u2019s] wiener.\u201d J.A.S. did as he was told and put Defendant\u2019s penis in his mouth. Defendant told J.A.S. that if he told anyone, Defendant would hurt J.A.S. or J.A.S.\u2019s mother. On another occasion when J.\u00c1.S. was visiting Defendant, Defendant again asked J.A.S. to \u201csuck his wiener[.]\u201d When J.A.S.\u2019s mother picked him up from that visit, J.A.S. told his mother Defendant had called her names. As a result, J.A.S.\u2019s mother stopped J.A.S.\u2019s visits with Defendant.\nJ.A.S.\u2019s mother allowed J.A.S. to resume visits with Defendant in the middle of 2005, when J.A.S. was twelve years old. J.A.S.\u2019s mother testified that after J.A.S. resumed visits with Defendant, she noticed a difference in J.A.S.\u2019s attitude. J.A.S. became withdrawn, his grades dropped, and he began having behavioral problems at school. In November 2005, J.A.S. was suspended from school for two days for an angry outburst. On the first day of J.A.S.\u2019s suspension, his mother took him to Defendant\u2019s house. J.A.S. testified that while he was at Defendant\u2019s house, Defendant again told J.A.S. to \u201csuck his wiener.\u201d Defendant then pushed J.A.S. onto a bed and forced anal sex on him. On the second day of J.A.S.\u2019s suspension from school, he begged his mother not to take him back to Defendant\u2019s house. J.A.S. testified he did not tell his mother about Defendant\u2019s abuse because he was afraid Defendant would hurt him. J.A.S. testified that Defendant had anal intercourse with him two or three times and that Defendant forced him to put Defendant\u2019s penis in his mouth six or seven times.\nJ.A.S.\u2019s mother testified that two weeks after being suspended from school, JA.S. was caught molesting other children. J.A.S. told his mother that Defendant \u201cdid things\u201d to him. Detective Kelly Beard (Detective Beard) with the King Police Department investigated the allegations of abuse against Defendant. Defendant voluntarily came to th\u00e9 police station to answer questions. Defendant denied J.AS.\u2019s allegations. However, when Detective Beard told Defendant that J.A.S. engaged in sex acts with other boys, Defendant said: \u201cWell, I guess somebody showed him how to do it.\u201d Defendant told Detective Beard that he had problems finding dates. As Defendant left the police station, he said to D\u00e9tective Beard: \u201cWell, I\u2019m a little crippled. ... [A] man\u2019s got to do what a man\u2019s got to do.\u201d\nAt the time of trial, J.A.S. was living in a residential treatment facility. Victor Isler (Isler), a clinical social worker at the facility, was qualified as an expert in the fields of sexualized trauma and in recognizing sexualized behaviors in victims. Isler testified that J.A.S.\u2019s behavior was consistent with that of a person who had experienced sexualized trauma. Isler further testified that as a result of that trauma, J.A.S. suffered from post-traumatic stress disorder.\nAt the end of the State\u2019s evidence, Defendant made a motion to dismiss the charges. The trial court denied Defendant\u2019s motion. Defendant presented evidence at trial, including the testimony of several family members and friends who testified that J.A.S. was never at Defendant\u2019s house. However, Defendant\u2019s nephew testified that J.A.S. was at Defendant\u2019s house two or three times a month. Defendant\u2019s son, Christopher Lark (Lark), testified that he had lived with Defendant since he was fifteen years old. Lark testified that he had seen J.A.S. at Defendant\u2019s house.\nDefendant testified on his own behalf and denied allegations that he sexually abused J.A.S. At the end of Defendant\u2019s evidence, Defendant renewed his motion to dismiss the charges against him. The trial court again denied Defendant\u2019s motion.\nI.\nDefendant argues in his assignment of error number one that the trial court erred in denying Defendant\u2019s motion to dismiss the charge of first-degree sexual offense by fellatio.\nThe standard of review for a motion to dismiss in a criminal trial is \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant\u2019s being the perpetrator of such offense.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citing State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971)). \u201c \u2018Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Kraus, 147 N.C. App. 766, 769, 557 S.E.2d 144, 147 (2001) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). \u201cIn reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)).\nFirst-degree sexual offense is defined as \u201ca sexual act . . . [w]ith a victim who is a child under the age of 13 years and the \u2022 defendant is at least 12 years old and is at least four years older than the victim.\u201d N.C. Gen. Stat. \u00a7 14-27.4 (2007). N.C. Gen. Stat. \u00a7 14-27.1 defines a \u201csexual act\u201d as \u201ccunnilingus, fellatio, analingus, . . . anal intercourse ... [or the] penetration, however slight, by any object into the genital or anal opening of another person\u2019s body.\u201d N.C. Gen. Stat. \u00a7 14-27.1 (2007).\nBecause J.A.S. testified that on numerous occasions Defendant forced J.A.S. to perform fellatio, we find the State presented sufficient evidence to support Defendant\u2019s first-degree sexual offense charge. However, at one point in the trial court\u2019s jury instruction on first-degree sexual offense, the trial court stated: \u201c[D]efendant is accused of committing first degree' sex offense by performing fellatio upon J.A.S.\u201d Defendant argues that because the trial court misspoke in its jury instructions, there was insufficient evidence to support Defendant\u2019s conviction for first-degree sexual offense.\n\u201cThe Due Process Clause . . . requires that the sufficiency of the evidence to support a conviction be reviewed with respect to the theory of guilt upon which the jury was instructed.\u201d State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996) (citing Presnell v. Georgia, 439 U.S. 14, 16, 58 L. Ed. 2d 207, 211 (1978)). In Wilson there was sufficient evidence that the defendant committed murder by acting in concert but insufficient evidence that the defendant committed murder by himself. Id. at 123, 478 S.E.2d at 510. However, the trial court failed to instruct the jury on acting in concert, thereby making it necessary for the State to prove each element of first-degree murder on the theory of premeditation and deliberation, including that the defendant fired the shots. Id. Our Supreme Court overturned the defendant\u2019s conviction for first-degree murder because there was insufficient evidence to support the conviction based upon the theory that the defendant committed the murder himself. Id. at 123-25, 478 S.E.2d at 510-12.\nHowever, the present case is distinguishable from Wilson. The first-degree sexual offense statute only requires that the State prove Defendant \u201cengage[d] in\u201d a sexual act with J.A.S. N.C. Gen. Stat. \u00a7 14.27.4(a) (2007). The statute does not distinguish between forcing a victim to perform fellatio or performing fellatio upon a victim. Id. Further, our Supreme Court has held that \u201cthe trial court\u2019s charge to the jury must be construed contextually and isolated portions of it will not be held prejudicial error when the charge as a whole is correct.\u201d State v. Boykin, 310 N.C. 118, 125, 310 S.E.2d 315, 319 (1984).\nIn the present case, the trial court twice correctly instructed the jury that to find Defendant guilty of first-degree sexual offense, the jury must conclude that Defendant engaged in a sexual act with J.A.S. The trial court instructed the jury that \u201csexual act\u201d meant \u201ceither fellatio or anal intercourse.\u201d The trial court further defined fellatio as \u201cthe touching by the lips or tongue of one person and the male sexual organ of another.\u201d Although in instructing the jury on Defendant\u2019s charges of first-degree sexual offense, the trial court misspoke by saying \u201cperforming\u201d fellatio instead of \u201cengaging in\u201d fellatio, reading the jury instructions as a whole, the trial court correctly instructed the jury that to convict Defendant of first-degree sexual offense, it must find that Defendant engaged in a sexual act with J.A.S. As this instruction on first-degree sexual offense was supported by the evidence, we hold the trial court did not err by denying Defendant\u2019s motion to dismiss. Therefore, Defendant\u2019s first assignment of error is overruled.\nII.\nIn Defendant\u2019s assignment of error number twelve, he argues the trial court committed plain error by instructing the jury on three alternative theories in support of the charge of felonious child abuse where the evidence was insufficient to support two of the three theories.\nDefendant did not object to the jury instruction at trial; therefore, we review the trial court\u2019s jury instruction for plain error. N.C.R. App. P. 10(c)(4). Under plain error review, Defendant must demonstrate the claimed error is a\n\u201c'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or \u2018where [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u2019 or the error has \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 or where the error is such as to \u2018seriously affect the fairness, integrity or public reputation of judicial proceedings [.]\u2019 \u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).\nDefendant was charged with felonious child abuse under N.C. Gen. Stat. \u00a7 14-318.4(a2) which states: \u201cAny parent or legal guardian of a child less than 16 years of age who commits or allows the commission of any sexual act upon a juvenile is guilty of a Class E felony.\u201d N.C. Gen. Stat. \u00a7 14-318.4(a2) (2007). \u201cSexual act\u201d is defined as \u201ccunnilingus, fellatio, analingus, . . . anal intercourse ... [or the] penetration, however slight, by any object into the genital or anal opening of another person\u2019s body.\u201d N.C.G.S. \u00a7 14-27.1.\nThe trial court instructed the jury that it could find Defendant guilty of felonious child abuse if the jury found Defendant\nintentionally committed a sexual act upon a juvenile. Either intentionally performing fellatio or anal intercourse, or both, would constitute sexual acts for the purpose of this charge. So if you find from the evidence beyond a reasonable doubt that . . . [Defendant intentionally committed a sexual act upon [J.A.S.], it would be your duty to return a verdict of guilty as to that charge.\nDefendant argues that two of the theories of felonious child abuse were not supported by the evidence because they were based on Defendant\u2019s having performed fellatio upon J.A.S.\nIn State v. Hughes, 114 N.C. App. 742, 746, 443 S.E.2d 76, 79, disc. review denied, 337 N.C. 697, 448 S.E.2d 536 (1994), the trial court instructed the jury that it could find the defendant guilty of first-degree sexual offense if the jury concluded the defendant committed a sexual act with the victim, defined as either fellatio or penetration by an object into the victim\u2019s body. However, there was insufficient evidence to support the theory that the defendant penetrated the vietim. Id. Our Court held that the trial court erred in instructing the jury that it could base its conviction on the theory of penetration where the evidence did not support that theory. Id.\nThe present case is distinguishable from Hughes. The evidence supported the instruction that Defendant committed felonious child abuse based upon a sexual act with J.A.S., that act being fellatio, anal intercourse, or both. As discussed in the preceding section, although the trial court instructed the jury by saying \u201cperforming\u201d fellatio instead of \u201cengaging in\u201d fellatio, reading the jury instructions as a whole, the trial court correctly instructed the jury that to find Defendant guilty of felonious child abuse, the jury must find that Defendant engaged in a sexual act with J.A.S. N.C.G.S. \u00a7 14-27.1 defines sexual act and does not distinguish between performing or receiving fellatio. In addition, the trial court instructed the jury that \u201csexual act\u201d meant \u201ceither fellatio or anal intercourse.\u201d In defining sexual act to the jury, the trial court did not distinguish between forcing fellatio upon J.A.S. or performing fellatio on J.A.S. Therefore, taking the trial court\u2019s jury instruction as a whole, the instruction on the sexual act supporting felonious child abuse was supported by the evidence.\nFurther, assuming arguendo it was error when the trial court misspoke and said \u201cperformed\u201d fellatio, we find the error does not rise to the level of plain error. All of the testimony admitted for substantive purposes supported the theory that J.A.S. was forced to perform fellatio upon Defendant. The jury was instructed that a sexual act \u201cmean[t] either fellatio or anal intercourse.\u201d Thus, considering together the evidence presented at trial and the trial court\u2019s jury instruction on \u201csexual act,\u201d the jury could not have been confused by the misstatement in the trial court\u2019s instruction. Therefore, Defendant\u2019s assignment of error number twelve is overruled.\nIII.\nDefendant argues in his assignments of error numbers two and three that the trial court committed plain error by instructing the jury on a theory of felonious child abuse not alleged in the indictment.\nDefendant was charged with a superseding indictment for felonious child abuse on 14 January 2008. Defendant\u2019s indictment for felonious child abuse states:\nTHE JURORS FOR THE STATE upon their oath present that on or about the 4th day of November, 2005 through the 21st day of November, 2005 and all inclusive dates therein and in the county named above [] [Defendant] named above unlawfully, willfully and feloniously did commit a sexual act, anal intercourse with [J.A.S.], who was 12 years of age thus under 16 years of age. At the time [] [Defendant] committed the offense, [] [Defendant] was the parent.\n(emphasis added). The trial court instructed the jury that it could find Defendant guilty of felonious child abuse if the jury found \u201cthat [Defendant] intentionally committed a sexual act upon a juvenile. Either intentionally performing fellatio or anal intercourse, or both, would constitute sexual acts for the purpose of this charge.\u201d\nDefendant does not dispute the sufficiency of the indictment to confer subject matter jurisdiction to the trial court. Rather, Defendant contends the indictment is insufficient to support his conviction for felonious child abuse because there is a fatal variance between the offense charged in the indictment and the jury instructions given at trial.\n\u201cIt is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.\u201d State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980) (citations omitted). However, \u201c \u2018[a]llegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.\u2019 \u201d State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) (quoting State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972)).\nDefendant was charged with felonious child abuse under N.C.G.S. \u00a7 14-318.4(a2). The essential elements of felonious child abuse under subsection (a2) are (1) the defendant is a parent or legal guardian of (2) a child less than 16 years of age, (3) who commits or allows the commission of any sexual act upon that child. N.C. Gen. Stat. \u00a7 14-318.4(a2); see State v. Qualls, 130 N.C. App. 1, 8, 502 S.E.2d 31, 36 (1998) (holding variance between the specific injury alleged in the indictment and the evidence at trial was not fatal where it was only necessary to allege under N.C. Gen. Stat. \u00a7 14-318.4(a) that the defendant caused serious injury and the actual injury alleged was surplusage), disc. review denied, 349 N.C. 237, 516 S.E.2d 604 (1998), aff\u2019d per curiam, 350 N.C. 56, 510 S.E.2d 376 (1999).\nThe indictment in the present case sufficiently alleged the essential elements of N.C. Gen. Stat. \u00a7 14-318.4(a2). The State was not required to specifically allege the particular sexual act that Defendant committed. See N.C. Gen. Stat. \u00a7 15-144.2; State v. Mueller, 184 N.C. App. 553, 558, 647 S.E.2d 440, 445 (short-form indictment for sexual offense only requires the State to allege the essential elements of the offense and does not require the State to allege the particular sexual act committed), cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007).\nIn his reply brief, Defendant cites State v. Loudner, 77 N.C. App. 453, 335 S.E.2d 78 (1985), and State v. Williams, 303 N.C. 507, 279 S.E.2d 592 (1981) for the proposition that even if the State was not required to allege the particular sexual act Defendant committed, the State is nevertheless bound by the allegations the State chose to allege in the indictment.\nIn Williams, the defendant was charged with first-degree sexual offense. Williams, 303 N.C. at 510, 279 S.E.2d at 594. The indictment alleged the defendant committed the sexual acts of cunnilingus and anal intercourse. Id. However, the State\u2019s evidence showed only that the defendant committed a sexual act by the penetration of an object into the victim\u2019s body. Id. The defendant argued the trial court erred in denying his motion to dismiss the charges because there was a fatal variance between the allegations in the indictment and the proof at trial. Id. at 509, 279 S.E.2d at 594. Our Supreme Court held that because there was no evidence demonstrating the defendant committed the sexual acts alleged in the indictment, the trial court erred in denying the defendant\u2019s motion to dismiss. Id. at 510, 279 S.E.2d at 594.\nSimilarly, in Loudner, the defendant was charged with committing a sexual act with a person in his custody. Loudner, 77 N.C. App. at 453, 335 S.E.2d at 79. The indictment alleged the defendant committed the sexual act of \u201cperforming oral sex\u201d on the victim. Id. However, the State\u2019s evidence showed only that the defendant digitally penetrated the victim\u2019s vagina. Id. The defendant argued the trial court erred in denying his motion to dismiss the charges because there was a fatal variance between the allegations in the indictment and the proof at trial. Id. Our Court, relying on Williams, held that because there was no evidence demonstrating the defendant committed the sexual act alleged in the indictment, the trial court erred in denying the defendant\u2019s motion to dismiss. Id. at 454, 335 S.E.2d at 79.\nHowever, we find the present case distinguishable from Loudner and Williams. The defendants in both Loudner and Williams assigned error to the trial court\u2019s denial of their motions to dismiss for insufficiency of. the evidence. In the present case, Defendant does not argue that the evidence of anal intercourse was insufficient. Rather, he assigns error to the trial court\u2019s jury instructions on felonious child abuse that instructed on a second theory in addition to the theory alleged in the indictment. Therefore, we find our appellate Courts\u2019 decisions on variance between indictments and jury instructions more applicable to the present case.\nOur Courts have found that a trial court\u2019s jury instructions which vary from the allegations of the indictment might constitute error where the variance is regarding an essential element of the crime charged. For instance, in a kidnapping case, it is essential to a valid indictment that the indictment allege the State\u2019s theory of the defendant\u2019s specific purpose(s) for the kidnapping. State v. McClain, 86 N.C. App. 219, 356 S.E.2d 826 (1987). Therefore, our Courts have repeatedly held that a trial court\u2019s jury instruction on a purpose theory different than the purpose theory alleged in the indictment, might constitute plain error where the evidence of the defendant\u2019s guilt is not overwhelming. See State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986); State v. Taylor, 301 N.C. 164, 270 S.E.2d 409 (1980); State v. Smith, 162 N.C. App. 46, 589 S.E.2d 739 (2004).\nIn State v. Williams, the defendant was charged with first-degree rape under N.C. Gen. Stat. \u00a7 14-27.2(a)(2) which requires the State to show the defendant engaged in vaginal intercourse \u201c[w]ith another person by force and against the will of the other person[.]\u201d State v. Williams, 318 N.C. 624, 629, 350 S.E.2d 353, 356 (1986). However, the trial court instructed the jury under N.C. Gen. Stat. \u00a7 14-27.2(a)(1) by instructing the jury that they could find the defendant guilty of first-degree rape if they found the defendant \u201cengaged in vaginal intercourse with [D.M.W.], and that at that time, [D.M.W.] was a child under the age of thirteen years, and that [the defendant] was at least twelve years old and was at least four years older than [D.M.W.].\u201d Williams, 318 N.C. at 629, 350 S.E.2d at 356. Our Supreme Court held the trial court\u2019s jury instructions were fundamentally erroneous because the jury was instructed on a theory based on a different subsection from the subsection under which the defendant was charged in the indictment. Id. at 631, 350 S.E.2d at 357.\nIn the present case, the trial court instructed the jury on the theory of anal intercourse that was alleged in the indictment. In addition, the trial court also instructed on the theory of fellatio that was not alleged in the indictment, but that was supported by the evidence. Unlike the kidnapping cases before our appellate Courts, the particular sexual act is not an essential element required to be alleged in the indictment. See Tucker, Taylor, and Smith. Further, this is not a case where the trial court instructed the jury on felonious child abuse based on a theory supported by a different subsection of N.C.G.S. \u00a7 14-318.4. See Williams, 318 N.C. 624, 350 S.E.2d 353. Rather, the trial court instructed the jury on the essential elements of felonious child abuse under N.C. Gen. Stat. \u00a7 14-318.4(a2) and tailored the instruction to the evidence presented at trial.\nWe find our Court\u2019s decision in State v. Bollinger, 192 N.C. App. 241, 665 S.E.2d 136 (2008), aff'd per curiam, 363 N.C. 251, - S.E.2d - (2009), most applicable to the case before us. In Bollinger, the defendant was charged with carrying a concealed weapon. Bollinger at 243, 665 S.E.2d at 138. The indictment alleged that the defendant was carrying a \u201c[m]etallic set of knuckles.\u201d Id. The evidence at trial showed that in addition to a metallic set of knuckles, the defendant was also carrying one or more knives. Id. at 243, 665 S.E.2d at 138. The trial court instructed the jury that it could find the defendant guilty of carrying a concealed weapon if it found the defendant carried one or more knives. Id. at 243, 665 S.E.2d at 138. The trial court did not instruct the jury on the defendant\u2019s carrying a metallic set of knuckles. Id. at 243, 665 S.E.2d at 138. Our Court distinguished a first-degree burglary charge, which requires the State to allege the particular felony the defendant intended to commit, and stated \u201cspecific allegations are not required to support a conviction for carrying a concealed weapon.\u201d Id. at 243-44, 665 S.E.2d at 139. Our Court held that the additional language in the indictment describing the particular weapon was \u201cmere surplusage\u201d and therefore the trial court\u2019s instructions on carrying a concealed weapon were not erroneous. Id. at 243-44, 665 S.E.2d at 139-40.\nSimilar to Bollinger, the State in the present case was not required to allege the particular sexual act Defendant committed in order to support a felonious child abuse charge. Therefore, the language in Defendant\u2019s indictment alleging he engaged in \u201canal intercourse\u201d was mere surplusage. In addition, in the present case the trial court did not substitute a different theory for the one alleged in the indictment. Rather, the trial court instructed on the theory alleged in the indictment in addition to a second theory supported by the evidence. Therefore, we find the trial court\u2019s instructions on felonious child abuse were not erroneous. Defendant\u2019s assignments of error numbers two and three are overruled.\nIV.\nDefendant argues in his assignment of error number thirteen, that the trial court committed plain error in failing to instruct the jury that Isler\u2019s opinion evidence could only be considered for corroborative purposes.\nIsler testified that J.A.S. suffered from \u201csexualized trauma\u201d and had been \u201cdiagnosed with post[-]traumatic stress disorder ... as a result of sexualized trauma.\u201d During the charge conference, Defendant did not request a limiting instruction for Isler\u2019s expert opinion testimony. The trial court did not give a limiting instruction to the jury.\n\u201c[E]vidence that a prosecuting witness is suffering from post-traumatic stress syndrome should not be admitted for the substantive purpose of proving that a rape has in fact occurred.\u201d State v. Hall, 330 N.C. 808, 821, 412 S.E.2d 883, 890 (1992). However, \u201cit may be admitted for certain corroborative purposes.\u201d Id. If evidence of post-traumatic stress disorder is admitted, the trial court \u201cshould take pains to explain to the jurors the limited uses for which the evidence is admitted.\u201d Id. at 822, 412 S.E.2d at 891. Nonetheless, \u201can instruction limiting admissibility of testimony to corroboration is not required unless counsel specifically requests such instruction.\u201d State v. Quarg, 334 N.C. 92, 101, 431 S.E.2d 1, 5 (1993).\nIn the present case, Defendant did not request a limiting instruction regarding Isler\u2019s opinion testimony. Further, Defendant cross-examined Isler and clarified that Isler\u2019s opinion was based on J.A.S.\u2019s allegations and was not based on Isler\u2019s own independent observations. Therefore, we find the trial court did not commit plain error by failing to give a limiting instruction regarding Isler\u2019s testimony. Defendant\u2019s assignment of error number thirteen is overruled.\nV.\nIn Defendant\u2019s assignment of error number seven, he argues and the State concedes, that Defendant\u2019s judgments and commitments do not comport with the trial court\u2019s oral pronouncements.\nThe trial court announced the following at Defendant\u2019s sentencing proceeding:\nAs required by law, the Court does find that the designated offenses are reportable convictions within G.S. 14-208.6, and [] Defendant is directed to register as a sex offender as required by law. The Court finds that he is not, does not fall in the classification statutorily of a sexually violent predator or any of the other aggravated factors, that registration should occur under level two, part two for registration.\nDefendant\u2019s two judgment and commitment forms, case numbers 05 CRS 52822 and 06 CRS 50107, both contain a box for the trial court to check, stating: \u201c10. finds the above designated offense(s) is a reportable conviction involving a minor. G.S. 14-208.6.\u201d Despite the trial court\u2019s oral sentencing pronouncement indicating that the offenses for which Defendant was convicted were reportable under N.C.G.S. \u00a7 14-208.6, neither the judgment nor commitment forms have box ten marked. Moreover, in direct contradiction to the oral sentencing pronouncement, the form in case number 06 CRS 50107 has the following box marked: \u201c9. finds this is an aggravated offense. G.S. 14-208.6.\u201d\n\u201cWhen, on appeal, a clerical error is discovered in the trial court\u2019s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record \u2018speak the truth.\u2019 \u201d State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted). A clerical error is \u201c \u2018[a]n error resulting from a minor mistake or inadvertence, [especially] in writing or copying something on the record, and not from judicial reasoning or determination.\u2019 \u201d State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting but not necessarily adopting Black\u2019s Law Dictionary 563 (7th ed. 1999)).\nIn the present case, it appears that the trial court inadvertently failed to mark the appropriate box, i.e., box number ten, on the judgment form in case number 05 CRS 52822, and marked the wrong box on the judgment form in case number 06 CRS 50107. These errors were clerical in nature. See State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (2000) (finding the inadvertent checking of a box finding an aggravating factor on a judgment form to be a clerical error), cert. denied, 531 U.S. 867, 148 L. Ed. 2d 110 (2000). Accordingly, we remand the present case to the trial court for the limited purpose of correcting the clerical errors in the judgment and commitment forms.\nDefendant did not argue his remaining assignments of error and therefore they are abandoned pursuant to N.C.R. App. P. 28(b)(6).\nNo error; remanded for correction of clerical errors.\nJudges HUNTER, Robert C. and BEASLEY concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RONALD DAVID LARK\nNo. COA08-1239\n(Filed 7 July 2009)\n1. Sexual Offenses\u2014 first-degree \u2014 performing or receiving fellatio\nN.C.G.S. \u00a7 14-27.4(a) does not distinguish between forcing a victim to perform fellatio or performing fellatio upon a victim, and the trial court did not err by denying defendant\u2019s motion to dismiss a charge of first-degree sexual offense by fellatio where there was evidence that defendant forced his son to perform fellatio, but at one point the court instructed the jury that defendant was accused of performing fellatio on the victim.\n2. Child Abuse and Neglect\u2014 felonious abuse \u2014 fellatio\u2014 instructions\nThere was no plain error in a prosecution for felonious child abuse in an instruction that gave three alternative theories for the charge where defendant argued that the evidence was insufficient to support two of the theories. The evidence supported the instruction that defendant committed felonious child abuse based upon committing a sexual act with the victim; N.C.G.S. \u00a7 14-27.1 does not distinguish between performing or receiving fellatio. Furthermore, considering the evidence presented at trial and the instruction, the jury could not have been confused by a misstatement in the instruction.\n3. Indictment and Information\u2014 variance with evidence\u2014 felonious child abuse \u2014 particular sexual act\nThere was no fatal variance between an indictment for felonious child abuse and the evidence where the court instructed on the theory of anal intercourse alleged in the indictment and also on the theory of fellatio, which was not alleged in the indictment but which was supported by the evidence. The State was not required to allege the particular sexual act defendant committed in order to support a felonious child abuse charge, the language alleging anal intercourse was surplusage, and the trial court did not substitute a different theory for the one alleged in the indictment.\n4. Evidence\u2014 testimony of clinical social worker \u2014 victim\u2019s post-traumatic stress \u2014 no limiting instruction\nThere was no plain error in a felonious child abuse instruction where the court did not give an instruction limiting the testimony of a clinical social worker about the victim\u2019s post-traumatic stress disorder to corroborative purposes. Defendant did not request such an instruction and cross-examined the witness as to the basis for the opinion.\n5. Criminal Law\u2014 judgment and commitment forms \u2014 clerical errors\nConvictions for felonious child abuse, first-degree sexual offense, and other related charges were remanded for correction of clerical errors in the judgment and commitment forms.\nAppeal by Defendant from judgments entered 4 April 2008 by Judge John W. Smith in Superior Court, Stokes County. Heard in the Court of Appeals 6 May 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant-Appellant." }, "file_name": "0082-01", "first_page_order": 108, "last_page_order": 121 }