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    "judges": [
      "Judges Johnson and Phillips concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOE HAYWOOD DILLARD"
    ],
    "opinions": [
      {
        "text": "SMITH, Judge.\nDefendant brings forward five assignments of error. First, he contends the trial court erred by denying his motion to quash the indictment. Second, he assigns error to the State\u2019s use of leading questions during the direct examination of the victim. Defendant\u2019s third assignment of error is that the trial court erred by denying his motion to dismiss at the close of the evidence. Fourth, he assigns error to the court\u2019s jury instruction that the offense could have been committed any time during the month of November 1985. Finally, defendant contends the trial court erred in its instruction on attempted second-degree sexual offense. We have reviewed each assignment of error and conclude there was no prejudicial error in the proceedings below.\nDefendant first assigns error to the denial of his motion to quash the indictment. The indictment charges a violation of G.S. 14-27.5 and is captioned \u201cSECOND DEGREE SEXUAL OFFENSE.\u201d It specifically states: \u201cdefendant . . . unlawfully, willfully and feloniously did engage in a sex offense with [victim\u2019s name] age 8, by force and against that victim\u2019s will. At the time of this offense the defendant was at least 12 years old and at least 4 years older than the victim.\u201d Defendant contends the indictment is insufficient to allow him to determine whether the State intended to proceed on the theory of first or second-degree sexual offense and should therefore be dismissed.\nAlthough not cited by either defendant or the State, G.S. 15444.2(a) sets forth the requirements for sexual offense indictments. For an indictment to be legally valid under the statute, it must contain only the following: the name of the accused, the date of the offense, the county in which the offense was allegedly committed, the averment \u201cwith force and arms,\u201d the allegation that the accused unlawfully, willfully and feloniously engaged in a sex offense with the victim by force and against the victim\u2019s will, and the victim\u2019s name. G.S. 15444.2(a). An indictment including such information is sufficient to charge first-degree sexual offense, second-degree sexual offense, attempt to commit a sexual offense or assault. Id. The statute provides that if the indictment contains the additional averment that the victim was under age 13, the indictment is sufficient to charge first-degree sexual offense and all lesser included offenses. G.S. 15444.2(b). The indictment in this case contains all the information necessary to charge defendant with either first or second-degree sexual offense. The statements regarding the victim\u2019s and defendant\u2019s ages do not render the indictment insufficient to charge a violation of G.S. 14-27.5. This assignment of error is overruled.\nWe also note that on defendant\u2019s \u201cWaiver/Certification of Arraignment\u201d form he entered a plea of not guilty to the offense of second-degree sexual offense. Thus, defendant was well aware of the offense for which the State intended to prosecute. Furthermore, even though defendant could have been tried for first-degree sexual offense, the only difference between the first and second-degree offenses on the facts of this case are the ages of the victim and defendant, a distinction that would not affect defendant\u2019s preparation for trial.\nDefendant\u2019s second assignment of error is that the trial court abused its discretion by allowing the district attorney to ask leading questions during the direct examination of the victim. We note that defendant excepted only to the court\u2019s ruling allowing one question: \u201cAnd were you afraid back then to sleep in your own bed?\u201d With this question, the prosecutor was merely seeking to establish background information; he was not attempting to elicit crucial testimony of the elements of the crime charged. Defendant was not prejudiced by the ruling. Neither was the ruling error. The rule is that \u201c[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.\u201d G.S. 8C-1, Rule 611(c). The application of this rule is within the discretion of the trial judge and the ruling is reversible only for abuse of discretion. State v. Higginbottom, 312 N.C. 760, 324 S.E. 2d 834 (1985). The trial court is \u201callowed wide latitude in the questioning of a witness of tender years or when the subject concerns a delicate matter such as sexual conduct.\u201d State v. Wilson, 322 N.C. 91, 96, 366 S.E. 2d 701, --- (1988). In this case, the subject matter of the young victim\u2019s testimony, whether and how the sexual act was committed, was indeed a delicate matter. We hold that the trial judge did not abuse his discretion by allowing the district attorney to ask leading questions of the victim in this case.\nDefendant next assigns error to the trial court\u2019s denial of his motion to dismiss made at the close of all the evidence. He contends that: (1) there was no evidence of force or threat of force to commit the offense; (2) the victim did not testify to a specific sexual act; and (3) the testimony as to the date of the offense was too confusing and inconsistent to support a conviction. The test for a motion to dismiss is whether, considering the evidence in the light most favorable to the State and giving the State the benefit of all discrepancies and every reasonable inference, there is substantial evidence of each material element of the offense. State v. Locklear, 304 N.C. 534, 284 S.E. 2d 500 (1981). Thus, the trial court\u2019s ruling was proper if there is substantial evidence of each element of second-degree sexual offense.\nG.S. 14-27.5(a) provides:\nA person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:\n(1) By force and against the will of the other person; or\n(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally defective, mentally incapacitated, or physically helpless.\nAs the trial court charged only on the elements of second-degree sexual offense in G.S. 14-27.5(a)(l), the question for our consideration is whether there is substantial evidence that the sexual act was by force and against the victim\u2019s will.\n\u201c[T]he common law implied in law the elements of force and lack of consent so as to make the crime of rape complete upon the mere showing of sexual intercourse with a person who is asleep . . . and therefore could not resist or give consent.\u201d State v. Moorman, 320 N.C. 387, 392, 358 S.E. 2d 502, 505-06 (1987). The phrase \u201cby force and against the will\u201d used in the first and second-degree rape statutes and the first and second-degree sexual offense statutes \u201cmeans the same as it did at common law when it was used to describe some of the elements of rape.\u201d State v. Locklear, 304 N.C. at 539, 284 S.E. 2d at 503. It makes no difference in the case of a sleeping or similarly incapacitated victim whether the State proceeds on the theory of a sexual act committed by force and against the victim\u2019s will or whether it alleges an incapacitated victim; force and lack of consent are implied in law. See State v. Moorman, supra. The victim testified that she was asleep in the same bed with her stepfather, defendant, and was awakened by defendant committing the sexual act charged. We hold there was sufficient evidence of force to deny defendant\u2019s motion to dismiss.\nDefendant also contends his motion to dismiss should have been granted because the victim did not testify to a specific sexual act. The victim testified that she was asleep in the same bed with defendant and when she woke up defendant \u201cput his hand down in my panties and went around and around in my bing bing.\u201d She also testified that \u201cbing bing\u201d meant her \u201cprivate place\" and that she felt defendant\u2019s finger \u201cinside\u201d her \u201cbing bing.\u201d The victim\u2019s grandmother testified that the victim told her the same things to which the victim testified. It is clear from the grandmother\u2019s testimony that the victim used the words \u201cbing bing\u201d to refer to her vagina. \u201cAlthough the victim did not use the word \u2018vagina,\u2019 or \u2018genital area,\u2019 when describing the sexual assault perpetrated upon her, she did employ words commonly used by females of tender years to describe these areas of their bodies, of which they are just becoming aware.\u201d State v. Rogers, 322 N.C. 102, \u2014, 366 S.E. 2d 474, 476 (1988). The testimony was sufficient to require submission of defendant\u2019s guilt of second-degree sexual offense to the jury.\nDefendant also contends his motion to dismiss should have been granted because the date the offense occurred was not shown by the evidence. The victim testified that the offense occurred while her sister was away at their grandmother\u2019s house to help hang curtains. She also testified that she thought it was weeks after it happened before she told her grandmother. The grandmother testified that the victim\u2019s sister visited to help hang curtains the third week of October 1985 and that the victim had complained of vaginal discomfort two to three weeks before 15 November 1985 when the victim told her what had happened.\nWe have stated repeatedly that in the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child\u2019s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence. Nonsuit may not be allowed on the ground that the State\u2019s evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense.\nState v. Wood, 311 N.C. 739, 742, 319 S.E. 2d 247, 249 (1984) (citations omitted). For the reasons stated, the trial court properly denied defendant\u2019s motion to dismiss. This assignment of error is overruled.\nDefendant\u2019s fourth assignment of error is that the trial court erred in instructing the jury that the offense could have occurred any time during the month of November 1985. Defendant did not object to the instruction as required by App. R. 10(b)(2). Thus, defendant relies on \u201cplain error,\u201d error which denies defendant a fundamental right or results in a miscarriage of justice. State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). We hold that defendant has not shown prejudicial error in the jury instruction. In determining whether a defect in the jury instruction is \u201cplain error,\u201d we must decide if the instructional error had a probable impact on the jury\u2019s finding of guilt. Id. We hold that the instruction did not have such an impact. Additionally, \u201c[w]here time is not of the essence of the offense charged and the statute of limitations is not involved, a discrepancy between the date alleged in the indictment and the date shown by the State\u2019s evidence is ordinarily not fatal.\u201d State v. Locklear, 33 N.C. App. 647, 653-54, 236 S.E. 2d 376, 380, disc. rev. denied, 293 N.C. 363, 237 S.E. 2d 851 (1977). Defendant did not present alibi evidence for the date alleged in the indictment or for the dates shown by the State\u2019s evidence; he simply denied committing the offense. As defendant did not rely on the date charged in the indictment, the variation in the State\u2019s evidence did not deprive him of his right adequately to present his defense or ensnare him in any way. Under these circumstances, the variance between the date in the indictment and that indicated in the charge is not prejudicial. This assignment of error is overruled.\nDefendant\u2019s final assignment of error is that the trial court erred in instructing the jury on the definition of attempt to commit second-degree sexual offense. The court instructed the jury in part as follows:\nFor you to find him guilty of attempted second degree sexual offense, the State must prove two things beyond a reasonable doubt, first of all considering all the elements I heretofore gave you what constitutes second degree sexual offense, [the first element of attempt is that he intended to commit a second degree sexual offense by inserting his finger into the vagina or vaginal area] of the alleged victim and included among that and within that are the fact to be considered by you that he used \u2014 that he attempted to use or attempted to threaten the use of force sufficient to overcome any resistence she might have and that she did not consent and it was against her will.\nDefendant objects to the bracketed part of the instruction contending it would allow the jury to find him guilty of the attempted crime if it found he intended to place his finger in the \u201cvaginal area,\u201d an act not a crime under the statute since there would be no intent to penetrate the genital opening. We hold that while the instruction was not technically correct, there was no prejudice to defendant. Earlier in the charge, the court properly instructed the jury that to prove a second-degree sexual offense the State had to prove that defendant engaged in a sexual act with the victim and defined sexual act as \u201cany penetration, however slight, by an object into the genital opening of a person\u2019s body.\u201d Our Supreme Court has held that \u201cit is fundamental that the charge of the court will be construed contextually, and isolated portions will not be held to constitute prejudicial error when the charge as a whole is free from objection.\u201d State v. Hutchins, 303 N.C. 321, 346, 279 S.E. 2d 788, 803 (1981). Construing the charge contextually, the jury must have understood that they had to find defendant intended to penetrate the vaginal opening as a necessary element of the crime of attempted second-degree sexual offense. This assignment of error is overruled.\nNo error.\nJudges Johnson and Phillips concur.",
        "type": "majority",
        "author": "SMITH, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General D. David Steinbock, for the State.",
      "Carnes and Franklin, by Hugh J. Franklin, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOE HAYWOOD DILLARD\nNo. 8729SC1241\n(Filed 31 May 1988)\n1. Rape and Allied Offenses 8 3\u2014 second degree sexual offense \u2014 indictment proper\nAn indictment which was captioned \u201cSecond Degree Sexual Offense\u201d and which charged that \u201cdefendant . . . unlawfully, willfully and feloniously did engage in a sex offense with [victim\u2019s name] age 8, by force and against that victim\u2019s will. At the time of this offense the defendant was at least 12 years old and at least 4 years older than the victim\u201d contained all the information necessary to charge defendant with either first or second degree sexual offense, and the statements regarding the victim\u2019s and defendant\u2019s ages did not render the indictment insufficient to charge a violation of N.C.G.S. \u00a7 14-27.5.\n2. Rape and Allied Offenses \u00a7 4\u2014 second degree sexual offense \u20148-year-old victim \u2014leading questions proper\nIn a prosecution of defendant for second degree sexual offense, the trial judge did not abuse his discretion by allowing the district attorney to ask leading questions of the victim since the subject matter of the 8-year-old victim\u2019s testimony, whether and how the sexual act was committed, was a delicate matter.\n3. Rape and Allied Offenses 8 5\u2014 second degree sexual offense \u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a prosecution for second degree sexual offense where it tended to show that the victim was asleep in the bed with her stepfather; she awoke when defendant put his hand in her underwear and \u201cwent around and around in [her] bing bing\u201d; she testified that her \u201cbing bing\u201d meant her \u201cprivate place\u201d; the victim stated that the offense occurred while her sister was away at their grandmother\u2019s house to help hang curtains; and the grandmother testified that the victim\u2019s sister visited to help hang curtains the third week of October 1985 and the victim had complained of vaginal discomfort two to three weeks before 15 November 1985 when the victim told her what had happened.\n4. Rape and Allied Offenses \u00a76\u2014 time of offense \u2014 jury instructions not improper\nIn a prosecution of defendant for second degree sexual offense, the trial court did not err in instructing the jury that the offense could have occurred any time during the month of November 1985, since defendant did not object to the instruction; the instruction did not have a probable impact on the jury\u2019s finding of guilt; time was not of the essence of the offense; and defendant did not rely on alibi evidence for the date alleged in the indictment or the dates shown by the State\u2019s evidence.\n5. Rape and Allied Offenses 8 6\u2014 defendant\u2019s intention to place finger in vagina or in vaginal area \u2014 instructions proper\nDefendant was not prejudiced by the court\u2019s instruction that an element of attempted second degree sexual offense was that defendant intended to insert his finger in the vagina or \u201cvaginal area\u201d of the victim where the charge, when considered as a whole, made it clear that the jury had to find that defendant intended to penetrate the vaginal opening as a necessary element of the crime of second degree sexual offense.\nAPPEAL by defendant from Snepp (Frank WJ, Judge, and Downs (James UJ, Judge. Order entered 22 October 1986 and judgment entered 28 July 1987 in Superior Court, RUTHERFORD County. Heard in the Court of Appeals 3 May 1988.\nDefendant was indicted for second-degree sexual offense involving his eight-year-old stepdaughter, a violation of G.S. 14-27.5. Defendant\u2019s oral motion to quash the indictment was denied by Judge Snepp on 22 October 1986. At trial, the jury found defendant guilty of attempt to commit a second-degree sexual offense. Judge Downs sentenced defendant to three years in the custody of the State Department of Corrections. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General D. David Steinbock, for the State.\nCarnes and Franklin, by Hugh J. Franklin, for defendant-appellant."
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