An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                               NO. COA13-1390
                       NORTH CAROLINA COURT OF APPEALS
                             Filed:     19 August 2014

STATE OF NORTH CAROLINA

                                              Lincoln County
      v.
                                              Nos. 11 CRS 50314-15

MICHAEL B. POSTELL


      Appeal by defendant from judgments entered 18 March 2013 by

Judge Linwood O. Foust in Lincoln County Superior Court.                       Heard

in the Court of Appeals 4 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      John F. Oates, Jr., for the State.

      Ryan McKaig for defendant-appellant.


      ERVIN, Judge.


      Defendant       Michael    B.    Postell      appeals     from    judgments

sentencing      him    to   terms     of    imprisonment      based     upon    his

convictions for first degree sex offense, statutory sex offense,

and two counts of taking indecent liberties with a child.                         On

appeal, Defendant contends that the indictments that had been

returned against him were fatally defective on the grounds that

they failed to adequately inform him of the dates upon which the
                                       -2-
offenses that he was charged with having committed allegedly

occurred.    After careful consideration of Defendant’s challenge

to the trial court’s judgments in light of the record and the

applicable law, we conclude that the trial court’s judgments

should remain undisturbed.

                           I. Factual Background

                           A. Substantive Facts

                            1. State’s Evidence

    In December 2008, Defendant and his father, Tim Postell,

moved into a mobile home that was occupied by D.C.1 and his

mother, Kim G., with whom Mr. Postell was engaged in a romantic

relationship.      At that time, Defendant was 21 years old and

Dalton,   with   whom    Defendant     shared   a   room,    had   just   turned

twelve.     In December 2009, Kim G., Mr. Postell, Defendant, and

Dalton moved into a larger mobile home, where they lived until

Kim G. and Mr. Postell parted company at the end of June 2010.

    Although Dalton, who suffered from a variety of behavioral

difficulties     and    intellectual    limitations,        initially     enjoyed

having Defendant around, he described Defendant as having become

more aggressive over time.           In early 2009, at a time when the

group still lived at the first mobile home, Defendant assaulted

    1
      D.G. will be referred to throughout the remainder of this
opinion as Dalton, a pseudonym used for ease of reading and to
protect Dalton’s privacy.
                                         -3-
Dalton and penetrated him anally.                After assaulting Dalton on

this occasion, Defendant threatened to kill Dalton if he ever

told anyone about what Defendant had done.                   On the day before

Father’s Day in 2010, after the group moved to the second mobile

home, Defendant forced Dalton to the floor, pulled down his

shorts, and inserted his penis into Dalton’s anus.

      The    relationship      between    Kim    G.    and   Mr.     Postell    ended

shortly after the second assault.               After Kim G. died of breast

cancer in December 2010, Dalton went to live with his father,

James C.      After Dalton came to live with him, James C. noticed

that Dalton would insert his fingers into his anus and smear

excrement upon himself.           When James C. questioned Dalton about

his conduct, Dalton told him about the assaults that Defendant

had committed against him.

      James    C.    reported    Dalton’s       accusations     to    the    Lincoln

County Sheriff’s Department.            On 27 January 2011, Detective Seth

Bailey of the Lincoln County Sheriff’s Department interviewed

Defendant, who denied Dalton’s accusations.                  After a subsequent

interview conducted by Special Agent Amanda Nosalek of the State

Bureau of Investigation, however, Defendant signed a statement

in   which    he    admitted    that,    on    two    occasions,     while     he   was

wrestling     with    Dalton,    the     head    of    his   penis    had    entered

Dalton’s anus.
                                     -4-
                           2. Defendant’s Evidence

      Defendant denied having assaulted Dalton on any occasion.

In addition, Mr. Postell testified that Defendant had not lived

in the first trailer for three months after the Christmas of

2008 and denied that Defendant had ever lived in the second

mobile home at all.

                           B. Procedural History

      On 31 January 2011, warrants for arrest charging Defendant

with two counts of taking indecent liberties with a child and

two counts of first degree sex offense were issued.                  On 21

February 2011, the Lincoln County grand jury returned bills of

indictment charging Defendant with two counts of taking indecent

liberties with a minor, two counts of first degree kidnapping,

one   count   of   first    degree   sex   offense,   and   one   count   of

statutory sexual offense.

      The charges against Defendant came on for trial before the

trial court and a jury at the 14 January 2013 criminal session

of the Lincoln County Superior Court.          However, the trial court

declared a mistrial on 16 January 2013 on the grounds that,

“after the trial had begun, two jurors had to be excused which

did not leave enough jurors to proceed with the trial.”

      The charges against Defendant came on for trial before the

trial court and a jury for a second time at the 11 March 2013
                                             -5-
criminal session of the Lincoln County Superior Court.                                At the

conclusion of all the evidence, the trial court dismissed the

first-degree kidnapping charges.                       On 18 March 2013, the jury

returned verdicts convicting Defendant of two counts of taking

indecent liberties with a minor, one count of first degree sex

offense,      and    one    count     of    statutory        sex    offense.          At   the

conclusion of the ensuing sentencing hearing, the trial court

consolidated Defendant’s first degree sex offense and statutory

sex    offense      convictions      for     judgment       and    entered      a    judgment

ordering that Defendant be imprisoned for a term of 192 to 240

months.        In     addition,       the     trial        court    entered         judgments

sentencing Defendant to consecutive terms of 16 to 20 months

imprisonment        based    upon     his    convictions          for   taking       indecent

liberties with a minor, with these sentences to run concurrently

with    the    sentence       imposed        upon      Defendant        based       upon   his

convictions       for      first    degree       sex     offense   and    statutory        sex

offense.      Defendant noted an appeal to this Court from the trial

court’s judgments.

                                   II. Legal Analysis

       In   his     sole    challenge       to     the    trial    court’s      judgments,

Defendant contends that the trial court lacked jurisdiction to

accept the jury’s verdicts and to enter judgment against him on

the grounds that the indictments that had been returned against
                                       -6-
him in these cases were fatally defective.                More specifically,

Defendant contends that, because “the indictments allege a broad

period of time occurring long before the crimes were reported,

the indictments . . . [are] fatally defective.”                 We do not find

Defendant’s argument persuasive.

    The indictments in this case allege that the offenses for

which   Defendant       was     convicted      occurred    on     “12/15/2008-

11/30/2009” and “6/01/2010-6/30/2010.”             According to N.C. Gen.

Stat. § 15A-924(a)(4), an indictment must contain “[a] statement

or cross reference in each count indicating that the offense

charged was committed on, or on or about, a designated date, or

during a designated period of time.”

             However, [N.C. Gen. Stat. § 15A-924(a)(4)]
             expressly provides that [e]rror as to a date
             or its omission is not ground for dismissal
             of the charges or 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. Also, [n]o judgment upon any
             indictment . . . shall be stayed or reversed
             for . . . omitting to state the time at
             which the offense was committed in any case
             where time is not of the essence of the
             offense,   nor    for   stating   the   time
             imperfectly.

State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991)

(citations and quotation marks omitted).            Thus, the fact that an

indictment    alleges    that    the   crime    charged   in    that   criminal

pleading occurred during an interval of time rather than on a
                                             -7-
particular date does not, without more, render the indictment in

question fatally defective.                The lack of any necessity for the

indictment to allege a specific offense date is particularly

pronounced “[i]n cases of sexual assaults on children,” in which

“temporal specificity requisites diminish.”                      Everett, 328 N.C.

at 75, 399 S.E.2d at 306.                As a result, “[u]nless the defendant

demonstrates that he was deprived of his defense because of lack

of specificity, this policy of leniency governs.”                       Id.

       In State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, disc.

rev.     denied,    320       N.C.   174,     358    S.E.2d     64-65       (1987),    the

defendants       were    charged      with     having      committed     several       sex-

related offenses against the female defendant’s daughter based

upon indictments that alleged that the offenses with which the

defendants had been charged occurred during a period of time

rather    than     on    a    specific    date.       On    appeal,    the    defendants

argued    that     the       indictments     were    fatally    defective       “because

[they] alleged [that] the offenses occurred during a specified

period of time rather than on specific days[.]”                         Id. at 7, 354

S.E.2d    at     531.        In   rejecting    this     argument,      we     held    that,

“[s]ince there was no error in the dates alleged, even if time

were of the essence in defendants’ case, the charges would not

be     subject     to    dismissal       under      [N.C.    Gen.     Stat.     §]     15A-

924(a)(4).”       Id.
                                        -8-
       Defendant has not, in this case, contended that the record

is devoid of support for a determination that the offenses for

which he was convicted occurred during the periods alleged in

the indictments that were returned against him, and our review

of the record satisfies us that any such contention would have

been   without     merit.      In     addition,      Defendant    has        completely

failed to establish that he was prejudiced in any concrete and

definite    way    by   the   fact    that    the    offenses    charged        in   the

indictments that were returned against him occurred during a

specified interval of time rather than on a specific date.                           Such

highly     generalized      assertions       of   prejudice      are     simply       not

sufficient,       particularly       given    that    Defendant        was    able     to

advance    an   alibi-like     defense       at   trial.    Although          Defendant

contends that the legal principles ordinarily applicable in such

situations should not apply in cases, like this one, in which a

substantial amount of time passed between the date upon which

the offenses that he was charged with committing had allegedly

occurred and the date upon which he was actually charged with

committing those offenses, Defendant has not cited any authority

in support of this assertion, and we know of none.                      As a result,

Defendant is not entitled to relief from his convictions based

upon the argument advanced in his brief.

                               III. Conclusion
                                   -9-
    Thus, for the reasons set forth above, Defendant’s sole

challenge to the trial court’s judgments lacks merit.                  As a

result,   the   trial   court’s   judgments   should,   and   hereby    do,

remain undisturbed.

    NO ERROR.

    Judges ROBERT C HUNTER and STEPHENS concur.

    Report per Rule 30(e).
