An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1047
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Martin County
                                              Nos. 10 CRS 605-610
                                                   10 CRS 50633
JOSE SANTOS LOPEZ-PESINA



      Appeal by defendant from judgment entered 2 April 2013 by

Judge W. Russell Duke, Jr. in Martin                  County Superior Court.

Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Nancy A. Vecchia, for the State.

      Glover & Petersen, P.A., by Ann B. Petersen, for defendant.


      HUNTER, Robert C., Judge.


      Defendant appeals the judgment entered against him after a

jury found him guilty of seven counts of first degree statutory

rape.1     On appeal, defendant argues that: (1) the trial court


1
  We note that both parties stated that defendant was convicted
of “first degree rape of a child” in their briefs.     However,
defendant was indicted for and convicted of violating N.C. Gen.
Stat. § 14-27.2(a)(1), first degree statutory rape, not N.C.
Gen. Stat. § 14-27.2A(a), rape of a child. See generally, State
                                          -2-
erred in denying his motion to dismiss for insufficiency of the

evidence     because   the    evidence        only   supported   six       charges    of

first degree statutory rape; and (2) the trial court erred by

allowing the State to amend the seven indictments charging first

degree statutory rape during trial.

       After careful review, we find no error.

                                    Background

       Defendant   presented       no    evidence      at   trial.        The    State’s

evidence tended to establish the following: M.A., the alleged

victim, was born 5 June 1995.                   M.A.’s mother, A.T.2, married

defendant when M.A. was five years old.                     Defendant moved into

the house where M.A. lived with A.T. and M.A.’s grandmother.

A.T.   and    defendant      had   a    child     in   2004.         At   some    point

subsequent, A.T. and defendant separated, and defendant moved

out of the house.

       In 2009, when M.A. was 13 or 14 years old, A.T. began

talking about getting back together with defendant.                             At this

point,   M.A.    claimed     that       she   had    been    sexually      abused    by



v. Agustin, 747 S.E.2d 316, 320 (noting that “N.C. Gen. Stat. §
14–27.2A provides that first-degree statutory rape (N.C. Gen.
Stat. § 14–27.2(a)(1)) is a lesser included offense of rape of a
child”), disc. review denied, __ N.C. __, 749 S.E.2d 864 (2013).
2
  To protect the identity of the minor victim, for purposes of
this opinion, we have used initials for both the victim and her
family members.
                                   -3-
defendant, beginning when she was five or six years old.                 She

claimed that the abuse stopped when she was in the fourth or

fifth grade.

       At trial, M.A. was able to provide specific testimony about

three separate incidents of alleged abuse.           M.A. testified that

the first incident of abuse that she could remember happened

after defendant and her mother were married; however, she was

unable to provide any date with certainty.               She and defendant

were alone in the house.         Defendant laid underneath a blanket

with her on the living room floor and began touching her “in

uncomfortable areas.”     She claimed that: defendant “stuck the

tip of his penis on the outer part of my privates, and, after he

was finished, I remembered that I had [sic] ran to the bathroom

and it hurt when I used the bathroom.”             During this incident,

M.A. alleged that defendant’s penis remained on the outer parts

of   her   vagina.   Defendant    also   “rubbed   the    inside   of   [her]

thighs and put two fingers inside [her] vagina.”

       Next, M.A. claimed that the second incident occurred after

she had watched a pornographic video she found in her mother’s

VCR.   M.A. testified that:

            It happened in the room again, and he was
            laying down and he had me on top. His penis
            wasn’t all the way inside of me, but a small
            amount of penis was, and I had remembered
                                     -4-
             making that sound that I heard on that
             video, and then, once again, when he was
             finished, I had [sic] got up and went to the
             bathroom and it hurt when I used the
             bathroom.

       During a third incident, when she was five or six years

old, M.A. claimed that defendant came “into the bathroom [while

M.A.   was   in   the   bathtub]   and   [pulled]   his   shorts   down   and

pull[ed] his penis out and he [stuck] it in my face and he

start[ed] rubbing the skin of it back and forth.”                  Defendant

told her to touch it.       Eventually, defendant ejaculated.

       Then, at trial, the following colloquy took place:

             [THE STATE:] Did the defendant put his penis
             inside your vagina any other time than what
             you’ve testified to already?

             [M.A.:] Yes.

             [THE STATE:]   Do you know how many times?

             [M.A.:] No.

             [THE STATE:]    Do you know if it was more
             than five times?

             [M.A.:] Yes.

             [THE STATE:]    Do you know if it was more
             than ten times?

             [M.A.:] Not exactly.

             [THE STATE:] Was it somewhere between five
             and ten?

             [M.A.:] Yes.
                                      -5-


    Ann Parson (“Ms. Parson”), a pediatric nurse with the Tedi

Bear Center (“the Center”), a facility charged with assisting

children and families where there are concerns of possible abuse

or neglect, testified as an expert in the field of pediatric

nursing on behalf of the State.               On 29 September 2009, she

examined   M.A.   at   the   Center   after   M.A.    was   referred   by   the

Department of Social Services and law enforcement.              At the time,

M.A. was fourteen years old.          Although Ms. Parson testified that

M.A.’s genital area was completely “normal” for someone her age—

meaning that she did not see any physical signs of sexual abuse—

this finding did not necessarily mean that M.A. had not been

sexually abused given that the alleged abuse had occurred years

before.

    Mary Curry (“Ms. Curry”), a forensic interviewer at the

Center, also testified for the State.            In September 2009, she

conducted a forensic interview with M.A.             During this interview,

M.A. told Ms. Curry that defendant had molested her from the

time when she was four until she turned eleven years old.                   M.A.

alleged that, during the course of the abuse, defendant put his

penis in her mouth and her vagina.              M.A. contended that the

incidents of abuse happened more than once.            Ms. Curry testified

that M.A. gave her specific details on different incidents; M.A.
                                      -6-
reported that some incidents happened in Florida while others

occurred in Martin County.          With regards to M.A.’s inability to

name   specific    incidents   or    remember   when    they    occurred,   Ms.

Curry stated that:

            Time for children is really difficult. I
            think time for anybody going back that long
            in time is really hard. A lot of times, we
            don’t talk about time with kids until
            they’re older, teenagers like she was, but
            when kids talk about incidents that’s been
            chronic abuse type allegations, it can be
            really difficult to give specific details
            because it might be happening on a daily
            basis or a weekly basis.

Ms. Curry also noted that it is “normal” for child victims to

wait years before reporting sexual abuse.

       On   20   September   2010,    the   grand      jury    returned   seven

indictments against defendant for first degree statutory rape.

The date of the offenses were: (1) 5 June 1999 to 4 June 2000

(10 CRS 50633); (2) 5 June 2000 to 4 June 2001 (10 CRS 605); (3)

5 June 2001 to 4 June 2002 (10 CRS 606); (4) 5 June 2002 to 4

June 2003 (10 CRS 607); (5) 5 June 2003 to 4 June 2004 (10 CRS

608); (6) 5 June 2004 to 4 June 2005 (10 CRS 609); and (7) 5

June 2005 to 4 June 2006 (10 CRS 610).          The dates of the alleged

offenses covered the time when M.A. was four years old until she

was ten.    Defendant’s trial began 1 April 2013.
                                -7-
    At the end of the State’s presentation of evidence, the

State made a motion to amend all seven indictments to “support

the evidence at trial.”   Specifically, the State sought to amend

the indictment in 10 CRS 50633 to expand the date of offense

from 5 June 2000 to 4 June 2002 (originally, it was 5 June 1999

to 4 June 2000).    The State contended that this date period

would cover the time when M.A. was five to six years old.       With

regard to the indictment in 10 CRS 605, the State sought to also

amend it to 5 June 2000 to 4 June 2002 (originally, it was 5

June 2000 to 4 June 2001).     Finally, the State sought to amend

the dates of the alleged offenses for all other charges to 5

June 2000 to 4 June 2005, a period that would cover when M.A.

was between five and ten years old.      The trial court allowed the

State’s motion to amend as to all the indictments, concluding

that “dates are not necessarily a substantial        change to the

indictment in these particular kinds of cases.”         On 2 April

2013, the jury found defendant guilty on all seven counts of

first degree statutory rape.     After determining that defendant

had six prior record points, the trial court sentenced defendant

to 336 months to 413 months imprisonment.          Defendant timely

appealed.

                             Arguments
                                       -8-
      Defendant    first      argues   that    the     trial    court   erred   in

denying his motion to dismiss for insufficiency of the evidence.

Specifically, defendant contends that, even taken in the light

most favorable to the State, the evidence only supported six

charges of first degree statutory rape.                  Therefore, the trial

court should have dismissed the charge in 10 CRS 50633 because

M.A. testified that the first act of rape occurred when she was

six to seven years old; the dates of offense in 10 CRS 50633

cover the time period when M.A. was five to six years old.                      We

disagree.

      “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”        State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).          “Upon defendant’s motion for dismissal,

the   question    for   the    Court   is    whether    there    is   substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s

being the perpetrator of such offense. If so, the motion is

properly denied.”        State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000).

      Defendant was convicted of seven counts of first degree

statutory rape under N.C. Gen. Stat. § 14–27.2(a)(1).                       Under
                                          -9-
this statute, the State must prove that defendant “engage[d] in

vaginal intercourse . . . [w]ith a victim who is a child under

the age of 13 years and [] defendant is at least 12 years old

and is at least four years older than the victim.”                       N.C. Gen.

Stat. § 14–27.2(a)(1) (2012).

    Defendant only contends on appeal that there was sufficient

evidence that he engaged in vaginal intercourse with M.A. six

times; thus, the trial court should have dismissed one of the

counts.    Defendant’s argument is without merit.

    “Generally,       a   jury     may    find    a    defendant   guilty     of   an

offense based solely on the testimony of one witness.”                      State v.

Combs, __ N.C. App. __, __, 739 S.E.2d 584, 586, disc. review

denied, __ N.C. __, 743 S.E.2d 220 (2013).                       “The unsupported

testimony of the prosecutrix in a prosecution for rape has been

held in many cases sufficient to require submission of the case

to the jury.”         State v. Carter, 198 N.C. App. 297, 306, 679

S.E.2d 457, 462 (2009).            Taking the evidence in a light most

favorable to the State, M.A. testified that, during the second

incident   of   sexual    abuse     that    she       provided   specific    details

about at trial, defendant put a small amount of his penis in her

vagina, which constituted vaginal intercourse.                      See State v.

Combs,    __   N.C.   App.   __,    __,    739    S.E.2d    584,   586   (“Vaginal
                                              -10-
intercourse is defined as penetration, however slight, of the

female sex organ by the male sex organ.”) (internal quotation

marks omitted), disc. review denied, __ N.C. __, 743 S.E.2d 220

(2013).       Furthermore, when the State asked whether she could

remember      how    many     times     defendant          put   his     penis       in   her   in

addition to the times she had already testified to, she claimed

she could not remember exactly how many times but agreed it was

“more   than       five     times”      but   less        than    ten.         Therefore,       in

addition      to    the     one    incident      she      described       in    detail,      M.A.

contended that defendant put his penis inside her vagina, at a

minimum, six other times.                   Consequently, M.A.’s own testimony

constituted        substantial         evidence      of    seven       incidents       of   rape.

Therefore, her testimony was sufficient to withstand defendant’s

motion to dismiss, and the trial court did not err in denying

it.

      Next,        defendant       argues     that     the       trial    court        erred    in

allowing the State to amend the indictments at trial; however,

defendant is only challenging the amendments made in 10 CRS

50633   and    605.         Specifically,         defendant        contends          that   these

changes    “fundamentally              changed       the     nature       of     the      charges

returned      by      the     grand      jury,”        and       they     “prejudiced           the

defendant’s         ability       to   defend     against        two     of    the     charges.”
                                          -11-
Therefore, according to defendant, the charges in 10 CRS 50633

and 605 should be vacated because there was no evidence that

defendant committed these acts when M.A. was four or five years

old, the time period alleged in the original indictments.

      “Generally, when time is not of the essence of the offense

charged, an indictment may not be quashed for failure to allege

the specific date on which the crime was committed.”                          State v.

Price,    310    N.C.       596,   599,   313    S.E.2d     556,   559   (1984).     A

variance    as    to       time,   however,     may   be    “of    essence”    if   “it

deprives a defendant of an opportunity to adequately present his

defense.        Id.        “When time is not an essential element of the

crime, an amendment in the indictment relating to the date of

the   offense         is    permissible    since      the    amendment    would     not

substantially alter the charge set forth in the indictment.”

State v. Whitman, 179 N.C. App. 657, 665, 635 S.E.2d 906, 911

(2006); see also N.C. Gen. Stat. § 15A–924(a)(4) (2013) (“Error

as to a date or its omission is not ground for . . . reversal of

a conviction if time was not of the essence with respect to the

charge and the error or omission did not mislead the defendant

to his prejudice.”).

      The issue is whether the date of offenses is an essential

element    of    the       crime   of   first    degree     statutory    rape.      The
                                           -12-
amendments to 10 CRS 50633 and 605 expanded the time period of

the alleged offenses to between 5 June 2000 and 4 June 2002,

when M.A. was five or six years old.                         Under N.C. Gen. Stat. §

14-27.2(a)(1), the State was required to prove that defendant

engaged in vaginal intercourse with M.A. when she was under the

age of thirteen and defendant was at least twelve years old and

four years older than M.A.               Therefore, time was essential to the

crime only to the extent that the State must prove that M.A. was

less than thirteen at the time of the alleged offenses.                                  M.A.

would   have       been      four   or   five    years       old   under     the   original

indictments        and       five   or   six     years       old   under     the    amended

indictments.            Thus, under either version of the indictments,

time    was    not      of    the   essence      to    the    State’s      case    and   the

amendments did not, therefore, substantially alter the charge

set forth in the original indictments.

       Furthermore, defendant cannot claim prejudice when the time

period set out in the amended indictments, 5 June 2000 to 4 June

2002, had already been covered in the other indictments for

first degree statutory rape.                    In other words, defendant would

already       be   on     notice    that   the        State    would    be    seeking     to

prosecute him for alleged incidents that occurred when M.A. was

five or six years old based on the other indictments returned by
                                  -13-
the grand jury.     Accordingly, the trial court did not err in

allowing the amendment of the indictments in 10 CRS 50633 and

605.

                                Conclusion

       Based on the foregoing reasons, defendant’s trial was free

from error.



       NO ERROR.

       Judges GEER and McCULLOUGH concur.

       Report per Rule 30(e).
