               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-584

                                Filed: 16 February 2016

Onslow County, No. 13 CRS 54478

STATE OF NORTH CAROLINA,

              v.

CURTIS RAY GATES, JR., Defendant.


       Appeal by defendant from judgment entered 28 October 2014 by Judge Charles

H. Henry in Onslow County Superior Court.         Heard in the Court of Appeals 3

November 2015.


       Roy Cooper, Attorney General, by Ellen A. Newby, Assistant Attorney General,
       for the State.

       Paul F. Herzog for defendant-appellant.


       ZACHARY, Judge.


       Where there was evidence to support a finding that the victim suffered serious

personal injury, the trial court did not err in instructing the jury on first-degree

sexual offense. Where time was not of the essence, and defendant did not allege

prejudice, the State’s failure to physically amend the indictment as ordered by the

trial court to remedy a discrepancy between the date of offense alleged in the

indictment and that supported by the State’s evidence was not fatal and did not

deprive the trial court of jurisdiction.
                                   STATE V. GATES

                                  Opinion of the Court



                       I. Factual and Procedural Background

      On 13 July 2013, Curtis Ray Gates, Jr. (defendant), a member of the United

States Marine Corps stationed at Camp Lejeune, was on base washing clothes. After

finishing his laundry, he returned home to his wife, and then went out. In the early

morning of 14 July 2013, defendant passed a bar on Dewitt Street in Jacksonville

called Hooligans, and stopped in the parking lot to see why it was so crowded. In the

parking lot, defendant saw a woman leaning against her car.

      According to the woman, A.A., she was in her vehicle when defendant opened

the door, struck her in the face, punched her in the abdomen, dragged her from the

vehicle, and forced her to perform oral sex on him. According to defendant, the two

flirted, A.A. had been taking ecstasy, and she voluntarily engaged in oral sex.

      Officer Chris Funcke, a member of the Jacksonville Police Department, was in

the area investigating a disturbance. When he approached, he found A.A. performing

oral sex on defendant. A.A. immediately rushed to Officer Funcke, crying hysterically

and appearing to be in distress, stating that defendant was “going to rape and kill

her.” She claimed that defendant had struck her and dragged her to where Officer

Funcke found them. A.A. was disheveled; her makeup was smeared, the side of her

face “was red, as if she had been struck with something[,]” and Officer Funcke

detected marks nearby, indicating that somebody had been dragged to where he

observed A.A. and defendant initially. Officer Funcke also testified that he saw a bit



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                                   Opinion of the Court



of blood on A.A.’s lip, but none on her face. Another officer testified that there were

dirt and grass stains on the tops of A.A.’s shoes. A.A. was then transported by EMS

to Onslow Memorial Hospital.

      In the emergency room of Onslow Memorial Hospital, Officer Steve Moquin

took photographs of A.A.’s injuries, which included bruising and swelling on the left

side of her face, above the cheek bone and above the left eye; an abrasion and bruise

to the right side of her right cheek; bruising on both sides of her neck, consistent with

the grip of a hand; an abrasion on her right elbow; an abrasion on the heel of her right

hand; an abrasion on the outside of her left ankle; and an injury on her bottom lip.

The injuries appeared to be fresh, and there was still dirt in some of them. Another

officer, Officer Ashley Potter, observed that A.A.’s left knee was swelling. At the

hospital, A.A. complained that the left side of her abdomen was sore and, upon

inspection, staff saw four red marks, consistent with the spacing of knuckles. A.A.

testified that she continued to experience pain for four or five days after the assault.

      On 13 May 2014, the Onslow County Grand Jury indicted defendant for

second-degree sexual offense, first-degree kidnapping, and crime against nature. On

10 June 2014, a superseding indictment was entered by the Grand Jury, charging

defendant with first-degree sexual offense, first-degree kidnapping, and crime

against nature.




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                                  Opinion of the Court



      On 9 October 2014, the jury found defendant guilty of first-degree sexual

offense, first-degree kidnapping, and crime against nature. The jury’s verdict of

guilty on the charge of first-degree kidnapping was based both upon the fact that A.A.

was not released in a safe place, and the fact that A.A. was sexually assaulted. The

jury further found that the restraint or removal of A.A. facilitated the commission of

both a crime against nature and a first-degree sexual offense.

      The trial court found defendant to be a prior record level I.       A Static-99

assessment submitted to the court found defendant to be a low risk. The trial court

consolidated judgment on the three guilty verdicts, and sentenced defendant to an

active sentence in the presumptive range of 240-348 months imprisonment.

      Defendant gave oral notice of appeal at trial.

                                 II. Jury Instruction

      In his first argument, defendant contends that the trial court erred in

instructing the jury on first-degree sexual offense. We disagree.

                               A. Standard of Review

      “[Arguments] challenging the trial court’s decisions regarding jury instructions

are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675

S.E.2d 144, 149 (2009). “The prime purpose of a court’s charge to the jury is the

clarification of issues, the elimination of extraneous matters, and a declaration and

an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165,



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                                    Opinion of the Court



171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974).

“[A] trial judge should not give instructions to the jury which are not supported by

the evidence produced at the trial.” Id. “Where jury instructions are given without

supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457

S.E.2d 716, 721 (1995).

                                       B. Analysis

      The State’s case on first-degree sexual offense proceeded on the theory that

A.A. suffered “serious personal injury.” Defense counsel objected, contending that

the jury should only be instructed on second-degree sexual offense, because A.A.’s

injuries were “minor scrapes and abrasions.” The trial court instructed the jury on

both first-degree and second-degree sexual offense, defining serious injury as “any

type of injury that causes great pain and suffering.” Defendant maintains that this

theory of first-degree sexual offense was unsupported by the evidence, and that

therefore the trial court erred in instructing the jury on that charge.

      First-degree sexual offense is defined in N.C. Gen. Stat. § 14-27.4, which

provides in relevant part that “[a] person is guilty of a sexual offense in the first

degree if the person engages in a sexual act . . . [w]ith another person by force and

against the will of the other person, and . . . [i]nflicts serious personal injury upon the

victim or another person[.]” N.C. Gen. Stat. § 14-27.4(a)(2)(b) (2013). Whether an

injury is serious is a finding of fact to be determined by a jury. State v. Boone, 307



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                                    Opinion of the Court



N.C. 198, 203-04, 297 S.E.2d 585, 589 (1982), overruled on other grounds by State v.

Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998); see also State v. Ackerman, 144 N.C.

App. 452, 459-60, 551 S.E.2d 139, 144 (2001). Mental injury may also be considered.

Id. at 204, 297 S.E.2d at 589; see also Ackerman, 144 N.C. App. at 460, 551 S.E.2d at

144.

       Defendant asserts that the evidence at trial of serious personal injury was

insufficient to support the instruction on first-degree sexual offense. However, the

general rule is that, “if there be any evidence tending to prove the fact in issue, or

which reasonably conduces to its conclusion as a fairly logical and legitimate

deduction, and not merely such as raises a suspicion or conjecture in regard to it, the

case should be submitted to the jury.” State v. Summitt, 301 N.C. 591, 597, 273 S.E.2d

425, 428 (citations and quotations omitted), cert. denied, 451 U.S. 970, 68 L.Ed.2d 349

(1981). In the instant case, the evidence demonstrated that Officer Funcke saw some

blood on A.A.’s lip. In addition, A.A. went to the emergency room for four hours where

her injuries were photographed, and the photographs verified that A.A. suffered

bruises on her ribs, arms, and face. A.A. testified that she was in pain for four or five

days afterwards. The evidence further indicated that, due to her feeling of a lack of

safety, A.A. left her boyfriend, terminated her lease, and moved back in with her

family, and at the time of trial, roughly a year later, still felt unsafe being alone.




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                                   Opinion of the Court



      Defendant relies on Boone, a case in which there was no evidence of physical

or residual mental injury. In that case, the evidence at trial revealed only that, on

the morning of the offense, “the victim was shaking, crying and ‘hysterical’

immediately after the crime was committed and after the officers arrived on the

morning of the crime.” Boone, 307 N.C. at 205, 297 S.E.2d at 590. Our Supreme

Court noted that:

             This record does not disclose that there was any residual
             injury to the mind or nervous system of the victim after the
             morning of the crime. The hysteria and crying described by
             the witnesses occurred nearly coincident with the crime
             and were results that one could reasonably expect to be
             present during and immediately after any forcible rape or
             sexual offense has been committed upon the female's
             person.

Id. The Court observed that “ordinarily the mental injury inflicted must be more

than the res gestae results present in every forcible rape and sexual offense[,]” and

held that the evidence in Boone was insufficient to support a finding of serious

personal injury. Id. Unlike Boone, however, the instant case offers ample evidence

of physical injury, including injuries to A.A.’s face, neck, arms, and legs.

      Defendant also contends that there was insufficient evidence of lingering

mental injury. However, our Supreme Court held in Boone that “[i]t is impossible to

enunciate a ‘bright line’ rule as to when the acts of an accused cause mental upset

which could support a finding of ‘serious personal injury[,]’” and that:

             In order to support a jury finding of serious personal injury


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                                   Opinion of the Court



             because of injury to the mind or nervous system, the State
             must ordinarily offer proof that such injury was not only
             caused by the defendant but that the injury extended for
             some appreciable time beyond the incidents surrounding
             the crime itself.

Id. at 205, 297 S.E.2d at 589-90. We have since held this to mean that “if a mental

injury extends for some appreciable time, it is therefore a mental injury beyond that

normally experienced in every forcible rape.” Ackerman, 144 N.C. App. at 460, 551

S.E.2d at 144 (quoting State v. Easterling, 119 N.C. App. 22, 40, 457 S.E.2d 913, 924,

disc. review denied, 341 N.C. 422, 461 S.E.2d 762 (1995)). The evidence in the instant

case demonstrates that two months after the incident, A.A. broke her lease and

moved to Asheville with her family, and that roughly a year later, A.A. still felt unsafe

while alone. This evidence of A.A.’s residual mental injury is sufficient to support a

finding of serious personal injury.

      We hold that the evidence at trial was sufficient to go to a jury, and that the

trial court did not err in instructing the jury on first-degree sexual offense.

      This argument is without merit.

                                      III. Indictment

      In his second argument, defendant contends that there was a fatal variance

between the date of the crimes alleged in the indictment and the evidence offered by

the State at trial. We disagree.

                                A. Standard of Review



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                                   Opinion of the Court



       “An attack on an indictment is waived when its validity is not challenged in

the trial court.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied,

531 U.S. 1018, 148 L. Ed. 2d 498 (2000). “However, where an indictment is alleged to

be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge

to that indictment may be made at any time, even if it was not contested in the trial

court.” Id.

                                      B. Analysis

       The superseding indictment in this case listed the date of the offenses as 10

May 2013. At trial, the State moved to amend the superseding indictment to indicate

that 14 July 2013 was the date of the offenses. The trial court allowed this motion,

but the physical document was never amended. Defendant contends that the failure

to physically execute the amendment created a fatal variance in the indictment.

       Even assuming, arguendo, that this resulted in a variance, “our courts have

recognized the general rule that ‘[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's evidence is ordinarily not

fatal.’” State v. Poston, 162 N.C. App. 642, 647, 591 S.E.2d 898, 902 (2004) (quoting

State v. Locklear, 33 N.C. App. 647, 653-54, 236 S.E.2d 376, 380, disc. review denied,

293 N.C. 363, 237 S.E.2d 851 (1977)).




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                                   STATE V. GATES

                                  Opinion of the Court



      In Poston, the defendant was originally indicted on fifteen sexual offense

charges arising from incidents that occurred between 1993 and 2000. Defendant was

ultimately convicted of, among other charges, two counts of first-degree sexual offense

that were alleged in the indictments to have occurred between June and July of 1994,

and in early to mid-October of 1997. Id. at 645-46, 591 S.E.2d at 901. On appeal,

defendant contended that the trial court should have dismissed these charges due to

a lack of evidence that the offenses were committed during the periods alleged in the

indictments. Id. at 646-47, 591 S.E.2d at 902. We first noted that, where defendant

presented no alibi defense with respect to the date of the offenses, the date was

immaterial. Id. at 648, 591 S.E.2d at 902. Moreover, although double jeopardy was

implicated by the State’s dismissal of several charges, the remaining indictments

each corresponded to an incident for which the charges were not dismissed. Had

there been more indictments than incidents, the dates might have been material, but

because there was an even ratio, the dates alleged in the indictments were not

material. Id. at 649-50, 591 S.E.2d at 903. Lastly, we observed that, although the

dates were relevant for the purpose of sentencing under the Fair Sentencing Act, that

issue had no impact on the jury’s determination of defendant’s guilt. Id. at 650-51,

591 S.E.2d at 904.

      In the instant case, defendant was indicted for first-degree sexual offense, first-

degree kidnapping, and crime against nature. Time is not an essential element of



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                                   Opinion of the Court



any of these crimes. Further, all three offenses are felonies. N.C. Gen. Stat. §§ 14-

27.4(a)(2)(b), 14-39, 14-177 (2013). In North Carolina, “no statute of limitations bars

the prosecution of a felony.” State v. Taylor, 212 N.C. App. 238, 249, 713 S.E.2d 82,

90 (2011) (quoting State v. Johnson, 275 N.C. 264, 271, 167 S.E.2d 274, 279 (1969)).

Defendant does not argue any of the issues raised in Poston, instead merely alleging

that the variance alone, by merit of its bare existence, was sufficient to be fatal to the

indictment.

      Because time was not an essential element of the offenses, no alibi defense was

raised, and no statute of limitations was implicated, the discrepancy between the date

alleged in the indictment and that shown by the State’s evidence was not

automatically fatal. Nor does defendant argue that this discrepancy in any way

prejudiced his defense; rather, defendant simply asserts that, in this specific case,

this Court should overlook the precedent of cases like Poston which held the

discrepancy not fatal. We decline to do so.

      This argument is without merit.

                                     IV. Conclusion

      In conclusion, there was ample evidence of A.A.’s injuries, both physical and

mental, to support the trial court’s jury instruction on first-degree sexual offense, and

therefore the trial court did not err issuing that instruction to the jury. Further, as

time was not of the essence and the statute of limitations was not implicated, any



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                                   Opinion of the Court



variance between the indictment, which was never physically amended, and the

evidence at trial was not fatal, and did not deprive the trial court of jurisdiction.

      NO ERROR.

      Judges BRYANT and CALABRIA concur.




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