An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                             NO. COA13-1177
                     NORTH CAROLINA COURT OF APPEALS

                            Filed:    17 June 2014


STATE OF NORTH CAROLINA

      v.                                 Cleveland County
                                         Nos. 12 CRS 002486-96,
                                              12 CRS 053213-14
REX REED DAVEY,
     Defendant.


      Appeal by defendant from judgments entered 18 March 2013 by

Judge   Eric   L.   Levinson     in   Cleveland    County    Superior    Court.

Heard in the Court of Appeals 7 April 2014.


      Roy Cooper, Attorney General, by David N. Kirkman, Special
      Deputy Attorney General, for the State.

      Michael E. Casterline, for defendant-appellant.


      MARTIN, Chief Judge.


      Defendant     Rex   Reed   Davey   appeals   from     judgments   entered

upon jury verdicts finding him guilty of one count of first-

degree sexual offense with a child and twelve counts of taking

indecent    liberties     with    a   child.       We   find    no   error    in

defendant’s trial.

      On 11 June 2012, defendant was indicted for first-degree
                                              -2-
sexual offense with a child and taking indecent liberties with a

child for offenses allegedly committed against S.M.                               Defendant

was indicted on eleven more charges of taking indecent liberties

with    a     child,      on    13    August     2012,       for     offenses     allegedly

committed against J.M. and C.M. years earlier.                          The matters were

joined for trial, and the State presented J.M., C.M., and S.M.

as witnesses.

       Defendant testified and denied the allegations.                               At the

close of all of the evidence presented at trial, the State moved

to   amend        the   offense      dates    alleged    in     nine   of   the    thirteen

indictments to           1 January 1991 through               September 1994.           Over

defendant’s objection, the trial court granted the motion.                                  On

18 March 2013, the jury convicted defendant of the charges and

the trial court imposed an active sentence of 254 to 314 months,

with a suspended sentence and period of probation to follow the

active sentence.            Defendant was also ordered to register as a

sex offender.           Defendant appeals.

                               _________________________

       On appeal, defendant argues the trial court erred by:                               (I)

allowing          impermissible        expert         opinion       testimony      by      Dr.

Christopher         Cerjan,     and    (II)    allowing       the    State’s      motion    to

amend       the    alleged      offense       dates     in    nine     of   the    thirteen

indictments.
                                       -3-
                                       I.

      Defendant first argues the trial court erred in allowing

Dr. Cerjan to testify as to the various ways victims of child

sexual    abuse     report    their   abuse.          Specifically,      defendant

contends the testimony was introduced by the State without a

proper foundation and improperly bolstered the credibility of

the alleged victims.         We disagree.

      We review the admissibility of expert opinion testimony for

an abuse of discretion.         State v. Washington, 141 N.C. App. 354,

362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C.

396, 547 S.E.2d 427 (2001).           In a sexual abuse case involving a

child victim, an expert may testify, upon proper foundation, as

to the characteristics of sexually abused children and whether

an   alleged   victim     exhibits    such        characteristics.       State   v.

Stancil, 355 N.C. 266, 267, 559 S.E.2d 788, 789 (2002).                          The

proponent of such testimony must lay a foundation establishing

that “the expert witness possesses the necessary educational and

experiential        qualifications”          to      testify      as     to      the

characteristics      of   sexually     abused       children    and    whether   an

alleged    victim     exhibits    those      characteristics.           State    v.

Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 622, disc. review

denied, __ N.C. __, 747 S.E.2d 548 (2013).                     “Where the expert

testimony is based on a proper foundation, ‘[t]he fact that this
                                            -4-
evidence may support the credibility of the victim does not

alone render it inadmissible.’”                    State v. Treadway, 208 N.C.

App.     286,    293,     702 S.E.2d       335,    342   (2010)     (alteration       in

original) (quoting State v. Kennedy, 320 N.C. 20, 32, 357 S.E.2d

359, 367 (1987)), disc. review denied, 365 N.C. 195, 710 S.E.2d

35 (2011).

       Dr. Cerjan was accepted as an expert witness in the field

of pediatrics and child abuse without objection from defendant.

Defendant       does    not    dispute     Dr.    Cerjan’s   qualification      as    an

expert    in    the     field.       The    State,   therefore,      laid   a   proper

foundation for Dr. Cerjan’s testimony regarding the various ways

victims    of     child       sexual   abuse      disclose   their    abuse.         See

Ragland, __ N.C. App. at __, 739 S.E.2d at 622.                          Because Dr.

Cerjan’s testimony was based upon a proper foundation, it is of

no     consequence      that     the     testimony    may    have    supported       the

credibility of the victims.                See Treadway, 208 N.C. App. at 293,

702 S.E.2d at 342.            This argument is therefore without merit.

                                            II.

       Defendant next argues the trial court erred in allowing the

State’s motion to amend the offense dates alleged in nine of the

thirteen indictments to 1 January 1991 through September 1994.

Defendant       contends       the   amendments      constituted     a   substantial

change in the charges and deprived him of a fair opportunity to
                                          -5-
present a defense.        We disagree.

       We review a trial court’s granting of the State’s motion to

amend an indictment de novo.              State v. White, 202 N.C. App. 524,

527, 689 S.E.2d 595, 596 (2010).                Although N.C.G.S. § 15A-923(e)

prohibits the amendment of an indictment, “[a] change of the

date   of    the   offense     is    permitted      if    the    change     does    not

substantially alter the offense as alleged in the indictment.”

State v. Wallace, 179 N.C. App. 710, 716, 635 S.E.2d 455, 460

(2006), appeal dismissed and disc. review denied, 361 N.C. 436,

649 S.E.2d 896 (2007).          In sexual offense cases involving child

victims, we follow a policy of leniency with respect to temporal

specificity in indictments.            State v. Burton, 114 N.C. App. 610,

613, 442 S.E.2d 384, 386 (1994);                 see also       State v. McGriff,

151 N.C. App. 631, 637, 566 S.E.2d 776, 780 (2002) (concluding

that the change of the date in the indictment for statutory rape

and taking indecent liberties with a child to expand the time

frame did not substantially alter the charges set forth in the

indictment).       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.”         State    v.

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

       In the case sub judice, the trial court allowed the State

to   amend   the   offense     dates      alleged   in    nine   of   the    thirteen
                                            -6-
indictments to reflect an offense period beginning on 1 January

1991 and ending on September 1994.                        Seven of the indictments

that were amended originally alleged offense periods beginning

on 1 January 1991 and ending in either 1991, 1992, or 1993.

Relying     on   his    testimony       that       he    was     in    the     military     and

stationed    outside      the      State    from        1988    until    1991,       defendant

contends the amendments to these seven indictments impaired his

ability to prepare and present an alibi defense.                               However, the

beginning    dates      of     these    offense         periods        were    not   amended;

rather,     only   the       end    dates     of    these        offense      periods      were

uniformly changed to September 1994 to expand the time frames.

Therefore, because defendant was provided sufficient notice of

the beginning date of the alleged offenses, his alibi defense,

if any, should have addressed all of 1991.                            Defendant, however,

did   not    present     any       evidence    as        to     when    in    1991    he   was

discharged       from    the       military.            Under    these        circumstances,

defendant’s attempt to assert his reliance on an alibi defense

is untenable.

      Furthermore, we are unpersuaded by defendant’s contention

that discrepancies in the victims’ accounts and estimations of

the alleged offense dates “severely undercut” his defense.                                  Any

discrepancy in the victims’ testimony only goes to the weight of

the testimony and does not demonstrate that the amendments to
                                      -7-
the     alleged     offense   dates     in     the    indictments    impaired

defendant’s ability to present a defense.               See Burton, 114 N.C.

App.    at   613,   442 S.E.2d   at   386    (“Children   frequently   cannot

recall exact times and dates; accordingly, a child’s uncertainty

as to the time of the offense goes only to the weight to be

given    that   child’s   testimony.”).        We    therefore   conclude   the

amendments to the alleged offense dates in the indictments, as

permitted by the trial court, did not substantially alter the

charges against defendant nor did they impair his ability to

prepare and present a defense.

       No Error.

       Judges McGEE and CALABRIA concur.

       Report per Rule 30(e).
