An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA14-726

                                   Filed: 19 May 2015

Columbus County, Nos. 11 CRS 52384—85, 52388, 52390, 52393, 52396

STATE OF NORTH CAROLINA

              v.

DERRICK EARL ROBINSON


       Appeal by defendant from judgment entered 6 September 2013 by Judge

Douglas B. Sasser in Columbus County Superior Court.              Heard in the Court of

Appeals 20 January 2015.


       Attorney General Roy Cooper, by Assistant Attorney General Laura Edwards
       Parker, for the State.

       Kimberly P. Hoppin for defendant-appellant.


       BRYANT, Judge.


       Where the evidence and jury instructions do not conform to the indictments,

such a variance is fatal and judgment based thereon is vacated.                Where the

indictment is proper, the evidence presented supports the indictment and the trial

court’s instructions to the jury reflect the law and conform to the evidence, an

incorrect listing on the jury verdict sheet can be considered a clerical error, and

judgment based thereon is upheld.
                                        STATE V. ROBINSON

                                         Opinion of the Court



        From June 2008 through May 2010, defendant Derrick Earl Robinson lived

with his girlfriend and her two children, Jessica and Kimberly1, in Tabor City. In

2008, Jessica and Kimberly were thirteen and ten years old, respectively. With the

exception of a few months when he was away from the home, defendant sexually

assaulted Jessica, from fall 2008 to fall 2009, by engaging in anal intercourse,

cunnilingus, and fellatio. Jessica testified that this occurred five to six times each

week.       Defendant also repeatedly engaged in anal intercourse with ten-year-old

Kimberly during the same timeframe.

        A Columbus County grand jury indicted defendant on ten counts of first-degree

sexual offense, three counts of first-degree rape, and nine counts of statutory

rape/sexual offense against a person who is 13, 14, or 15. After a three-day jury trial

in September 2013, defendant was found guilty of three counts of statutory rape and

three counts of first-degree sexual offense. Defendant appeals.

                                _______________________________________

        On appeal, defendant does not challenge his conviction on two charges of first-

degree sexual offense as they relate to Kimberly; he does, however, challenge three of

his four convictions as to Jessica.2 Defendant argues that the trial court erred by (I)

instructing the jury it could find defendant guilty of charges based on a theory not


        1
        Pseudonyms are used to protect the identity of the minors.
        2
        Defendant does not challenge his conviction of first-degree sexual offense as relates to Jessica
in 11 CRS 52388.


                                                 -2-
                                        STATE V. ROBINSON

                                         Opinion of the Court



alleged in the indictment, (II) entering judgment when the jury verdict sheets differed

from the indictment and jury instructions, and (III) denying defendant’s motion to

dismiss certain charges when a fatal variance existed between the charges and

evidence introduced at trial.

                                                   I. & III.

        Defendant argues the trial court committed plain error in instructing the jury

on statutory sex offense in 11 CRS 52384 and 52385 when the language in those

indictments charged defendant with statutory rape and the State presented no

evidence of rape; consequently, the trial court erred in denying defendant’s motion to

dismiss based on a fatal variance. We agree.

        We note defendant’s argument as to the jury instructions is normally reviewed

for plain error, 3 whereas defendant’s argument regarding a fatal variance is reviewed

de novo. Because we analyze the issue based on defendant’s argument as to variance

between the indictments, and the evidence and the charge to the jury, we will review

this issue de novo. See State v. Martinez, ___ N.C. App. ___, ___, 749 S.E.2d 512, 514

(2013) (“[A] variance-based challenge is, essentially, a contention that the evidence is




        3 When a defendant fails to object to a jury instruction at trial, a court may only review the
jury instruction under the plain error standard. State v. Odom, 307 N.C. 655, 659–61, 300 S.E.2d 375,
378 (1983). Plain error requires “a fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done . . . .” Id. at 660, 300 S.E.2d at 378 (quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (quotations omitted).

                                                  -3-
                                       STATE V. ROBINSON

                                         Opinion of the Court



insufficient to support a conviction,” and we review challenges to sufficiency of

evidence de novo. (citation omitted)).

       North Carolina General Statutes, section 14-27.7A sets out the offense of

“[s]tautory rape or sexual offense of person who is 13, 14, or 15 years old.” “Rape”

requires vaginal intercourse. See N.C. Gen. Stat. §§ 14-27.2(a) (“First-degree rape”),

14-27.2A(a) (“Rape of a child; adult offender”) (2013). In contrast, “sexual act” “means

cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal

intercourse.” Id. § 14-27.1(4) (emphasis added).4

       The State need not allege the specific sexual act in order to sufficiently charge

the crime. See id. § 15-144.2(b) (“Essentials of bill for sex offense”); State v. Edwards,

305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) (affirming the use of short form

indictments for sexual offenses as permitted by N.C. Gen. Stat. § 15-144.2(b)). But,

“[w]hile the State [is] not required to allege the specific nature of the sex act in the

indictment, having chosen to do so, it is bound by its allegations, even as other

litigants are bound by theirs.” State v. Loudner, 77 N.C. App. 453, 454, 335 S.E.2d

78, 79 (1985). It is well established that “[a] defendant must be convicted, if at all, of

the particular offense charged in the indictment.” State v. Pulliam, 78 N.C. App. 129,

132, 336 S.E.2d 649, 651 (1985).




       4 Also, “[s]exual act also means the penetration, however slight, by any object into the genital
or anal opening of another person's body.” N.C.G.S. § 14-27.1 (4).

                                                 -4-
                                       STATE V. ROBINSON

                                        Opinion of the Court



       In State v. Williams, our North Carolina Supreme Court vacated the conviction

of a defendant charged with first- and second-degree rape. 318 N.C. 624, 631, 350

S.E.2d 353, 357 (1986). The conviction was vacated because the jury had been

instructed on the offense of statutory rape, but the indictment charged the offense of

forcible first-degree rape, resulting in a fatal variance between the indictment and

evidence to support the jury instruction. Id. 5 Before concluding that the indictment

was an invalid basis for judgment, the Court observed that “the failure of the

allegations to conform to the equivalent material aspects of the jury charge

represents a fatal variance, and renders the indictment insufficient to support that

resulting conviction.” Id. (citation omitted).

       In the instant case, the indictments at issue here, 11 CRS 52384 and 52385,

charged defendant with statutory rape of a person 13, 14, or 15 years old, alleging

that from 1 March 2009 to 30 April 2009 (11 CRS 52384) and from 1 July to August

31 2009 (11 CRS 52385) defendant “did engage in vaginal intercourse with [Jessica],

a person of the age of 13 years . . . and that [a]t the time of the offense, the defendant



       5

               While evidence was adduced at trial that indicated that a basis existed
               upon which the State could have brought [the] defendant to trial on a
               theory of rape based on [the victim's] age pursuant to N.C.G.S. § 14–
               27.2(a)(1), [the] defendant was not so charged. Having chosen forcible
               first-degree rape as its theory of prosecution and having brought [the]
               defendant to trial, the State was bound to prove all of the material
               elements of that charge and could not rely on proof of rape pursuant to
               N.C.G.S. § 14–27.2(a)(1).

Williams, 318 N.C. at 628, 350 S.E.2d at 356.

                                                -5-
                                 STATE V. ROBINSON

                                  Opinion of the Court



was at least six years older than the victim and was not lawfully married to the victim

. . . .” (emphasis added). While both indictments specifically alleged that defendant

engaged in vaginal intercourse with Jessica, there was no evidence presented at trial

as to vaginal intercourse. The evidence before the trial court was related to various

sexual acts not involving the type of vaginal penetration necessary for the commission

of rape as defined by our General Statutes. See N.C.G.S. §§ 14.27.2(a), 14.27.2A(a).

The trial court, consistent with the evidence presented but inconsistent with the rape

offenses charged in the indictments, instructed the jury on the elements required to

reach a verdict as to statutory sexual offense.

      In the instant case, just as in Williams, the difference between the indictment

alleging statutory rape and the evidence and jury instructions as to statutory sexual

offense represents a fatal variance. We note with appreciation the State’s concession

that Williams cannot be distinguished from the instant case.         We must vacate

defendant’s convictions based on charges of rape as indicted pursuant to 11 CRS

52384 and 11 CRS 52385.

                                               II.

      Defendant next argues that his conviction should be vacated because the

indictment in 11 CRS 52390 alleged statutory sexual offense while the jury verdict

sheet listed the offense of statutory rape. We disagree.

                   A motion in arrest of judgment is proper when it is
             apparent that no judgment against the defendant could be


                                         -6-
                                   STATE V. ROBINSON

                                    Opinion of the Court



             lawfully entered because of some fatal error appearing in
             (1) the organization of the court, (2) the charge made
             against the defendant (the information, warrant or
             indictment), (3) the arraignment and plea, (4) the verdict,
             and (5) the judgment.

State v. McGaha, 306 N.C. 699, 702, 295 S.E.2d 449, 451 (1982) (quoting State v.

Perry, 291 N.C. 586, 589, 231 S.E.2d 262, 265 (1977)), superseded by statute on other

grounds as recognized in State v. Roberts, 166 N.C. App. 649, 652, 603 S.E.2d 373,

375 (2004). “When such a [fatal] defect is present, it is well established that a motion

in arrest of judgment may be made at any time in any court having jurisdiction over

the matter, even if raised for the first time on appeal.” State v. Tucker, 156 N.C. App.

53, 59, 575 S.E.2d 770, 774 (quoting State v. Wilson, 128 N.C. App. 688, 691, 497

S.E.2d 416, 419 (footnote omitted)) (citing also McGaha, 306 N.C. at 702, 295 S.E.2d

at 451), rev’d in part, 357 N.C. 633, 588 S.E.2d 853 (2003). However, where a verdict

can be properly understood by reference to the indictment, evidence, and jury

instructions, it is sufficient. Id. at 60, 575 S.E.2d at 774.

                    [In Tucker, the] [d]efendant was indicted . . . with
             fourteen counts of statutory sexual offense of a person aged
             13, 14 or 15 (N.C.Gen.Stat. § 14–27.7A(a)), seven counts of
             sexual offense by a person in parental role in the home of
             minor victim (N.C.Gen.Stat. § 14–27.7(a)), and seven
             counts of taking indecent liberties with a minor
             (N.C.Gen.Stat. § 14–202.1).

Id. at 55, 575 S.E.2d at 772.

             The trial court properly instructed the jury as to each of the
             above, respectively. However, the trial court submitted


                                           -7-
                                  STATE V. ROBINSON

                                   Opinion of the Court



             verdict sheets to the jury which contained fourteen counts
             of N.C. Gen. Stat. § 14–27.4 (first degree sexual offense)
             where the statutory sexual offense of a 13, 14 or 15 year old
             counts should have been.

Id. at 59, 575 S.E.2d at 774. The jury returned a guilty verdict as to each count. Id.

at 56, 575 S.E.2d at 772. On appeal, the defendant contended that the trial court

erred in using incorrect jury verdict sheets. “[This Court noted that] the jury heard

evidence and was properly instructed on three different crimes that [the] defendant

was alleged to have committed.” Id. at 60, 575 S.E.2d at 775. Citing Lyons v. State,

690 So.2d 695 (1997) (finding no prejudicial error in verdict form that listed

“conspiracy to commit robbery” instead of “conspiracy to commit armed robbery or

robbery with a dangerous weapon”), and Broadus v. State, 487 N.E.2d 1298 (1986)

(error in indicating “burglary” instead of “robbery” on verdict sheet was harmless

where jury was well acquainted with crime charged), the Tucker Court held that the

failure to provide verdict sheets reflecting fourteen counts of statutory sexual offense

of a person aged 13, 14 or 15 (N.C. Gen. Stat. § 14–27.7A(a)) did not amount to

fundamental error requiring arrest of judgment. Id.; see also State v. Gilbert, 139

N.C. App. 657, 535 S.E.2d 94, (2000) (rejecting the defendant’s challenge when the

verdict sheet misidentified the defendant); State v. McKoy, 105 N.C. App. 686, 414

S.E.2d 392 (1992) (discarding as a mere clerical error the discrepancy between the

indictment and verdict sheets about the maximum amount of cocaine possessed and

transported); State v. Connard, 81 N.C. App. 327, 344 S.E.2d 568 (1986) (finding no


                                          -8-
                                  STATE V. ROBINSON

                                   Opinion of the Court



error when the verdict sheet did not contain each element of misdemeanor possession

of stolen goods);   State v. Sanderson, 62 N.C. App. 520, 302 S.E.2d 899 (1983)

(deciding the trial court did not err by omitting from the verdict sheet essential

elements of “intent to sell and deliver” for various drug-trafficking charges).

             While the [Tucker] jury returned verdict sheets stating
             that [the] defendant was guilty of the crime of first degree
             sexual offense, the jury had been ‘well-acquainted’ with the
             charge of statutory sexual offense of a 13, 14 or 15 year old.
             The jury had heard the indictments which included that
             crime, heard the evidence, and were properly instructed on
             that crime. Thus, [the defendant’s] assignment of error is
             overruled . . . .

Tucker, 156 N.C. App. at 60—61, 575 S.E.2d at 775.

      In the instant case, defendant was indicted in 11 CRS 52390 pursuant to N.C.

Gen. Stat. § 14-27.7A(a) which proscribes “[s]tatutory rape or sexual offense of person

who is 13, 14, or 15 years old.” (emphasis added). A defendant violates section 14-

27.7A(a) “if the defendant engages in vaginal intercourse or a sexual act with another

person who is 13, 14, or 15 years old . . . .” N.C.G.S. § 14-27.7A(a) (2013). The

indictment in 11 CRS 52390 alleged in relevant part that defendant “engage[d] in a

sexual act with [Jessica], a person of the age of 13 years.” (emphasis added). At the

commencement of defendant’s trial, the trial court announced the charges against

defendant for the record before the jury.

             In file number[] . . . 11 CRS 52390, the defendant is charged
             with . . . statutory sexual offense against a person who is
             13, 14, or 15 years old by a defendant who is at least six


                                            -9-
                                   STATE V. ROBINSON

                                   Opinion of the Court



             years older than the victim. The alleged date of offense is
             between March 1st, 2009, and April 30th, 2009. And the
             alleged victim is [Jessica].

      During trial, Jessica testified that in the spring of 2009, defendant engaged

her in anal intercourse, cunnilingus, and fellatio as many as five to seven times per

week. After the presentation of evidence and outside of the presence of the jury

during the charge conference, the trial court stated that it would use North Carolina

Pattern Jury Instruction–Crim. 201.15.3 to instruct the jury on the crime of sexual

act with a victim who is 13 years old at the time of the offense.

             THE COURT:          Okay.     And then the substantive
             instructions I had, I had found that instruction 207.15.3.

             ...

             Because [201.]15.1 deals with vaginal intercourse. They're
             very close, they look almost exactly the same, but one deals
             with vaginal intercourse, and the other deals –

             ...

             . . . a sexual act.

             [Defense counsel]: You’re right.

             ...

             THE COURT: Which is in regards to the criminal offense
             of 14-27.7(a) [sic].

             [Defense counsel]: Right.




                                          - 10 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



      Prior to bringing the jury into the courtroom for instruction, the trial court

instructed the State and defendant to review the verdict sheets.

             THE COURT: Counsel, anything else that's -- well, first of
             all, verdict sheets, had a chance to review those?

             ...

             I'm going to pass these to you first. If you'll look through
             those 12 and make sure they match the offense date, the
             victim's name, everything matches up.

             ...

             And file numbers, please, and once you've had a chance to
             look, let [defense counsel] look at them.

             ...

             [Defense counsel]: I see that they all correspond. I see no
             mistakes. . . .

      The trial court then gave the jury the following instruction:

                     Ladies and gentlemen of the jury, in file numbers 11
             -- all these are file numbers -- I don't want to repeat the 11
             every time. Everyone [11 is] the year, CRS . . . 52390. The
             defendant has been charged with statutory sexual offense
             against a victim who was 13 years old at the time of the
             offense.

             For you to find the defendant guilty of this offense, the
             State must prove four things beyond a reasonable doubt:

                          First, that the defendant engaged in a sexual
                   act with the victim. A sexual act means cunnilingus,
                   which is any touching, however slight, by the lips or
                   tongue of one person to any part of the female sex
                   organ of another. Fellatio, which is touching by the


                                         - 11 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



                    lips or tongue of one person and the male sex organ
                    of another. Anal intercourse, which is any
                    penetration, however slight, of the anus of any
                    person by the male sexual organ of another. And/or
                    any penetration, however slight, by an object into
                    the genital opening of a person's body.

                          Second, that at the time of the acts, the victim
                    was 13 years old.

                          Third, that at the time of the acts, the
                    defendant was at least six years older than the
                    victim.
                          And fourth, that at the time of the acts, the
                    defendant was not lawfully married to the victim.

            If you find from the evidence beyond a reasonable doubt
            that on or about the alleged date, and this is as to each
            offense charged, that the defendant engaged in a sexual act
            with the victim who was 13 years old and that the
            defendant was at least six years older than the victim and
            was not lawfully married to the victim, it would be your
            duty to return a verdict of guilty. If you do not so find or
            have a reasonable doubt as to one or more of these things,
            it would be your duty to return a verdict of not guilty.

            ...

            Ladies and gentlemen of the jury, there are 12 verdict
            forms in this case. I'm going to go through those with you
            very briefly.

            ...

            File number 11 CRS 52390, two choices: Guilty of
            committing statutory rape between the dates of March 1st,
            2009, and April 30th, 2009, against [Jessica], a child who
            was 13 years old, or not guilty.

(emphasis added).


                                         - 12 -
                                 STATE V. ROBINSON

                                  Opinion of the Court



             THE COURT: Outside the presence of the jury, any
             requests for any corrections, additions at this point as to
             the instructions given by the Court from the State?

             [The prosecutor]: No, Your Honor.

             THE COURT: From the defense?

             [Defense counsel]: No, Your Honor.

             ...

             THE COURT: Back on the record. Received a note from
             the foreperson, Mr. Hudson. We'll make this Court's
             exhibit number two, which is as follows: Quote, May [sic]
             we have a written copy or further explanation,
             parentheses, definitions, of the charges, question mark, i.e.
             statutory rape, first degree sexual offense.

      The trial court brought the jurors back into the courtroom.

             Ladies and gentlemen, in file number[] 11 CRS . . . 52390,
             the defendant has been charged with statutory sexual
             offense against a victim who was 13 years old at the time of
             the offense.

(emphasis added). In pertinent part, the trial court then repeated the instructions

defining sexual offense.

             [The Court:] Before I release the jurors to go back,
             hopefully I said everything right, anything from the State?

             [The prosecutor]: No, Your Honor.

             THE COURT: From the defense?

             [Defense counsel]: No, Your Honor.




                                         - 13 -
                                  STATE V. ROBINSON

                                   Opinion of the Court



      Following further deliberation and an announcement that the jury had reached

a unanimous verdict, the clerk of court read the following into the record.

             THE CLERK: In the case of State of North Carolina versus
             Derrick Earl Robinson, file number 11 CRS 52390, ladies
             and gentlemen of the jury, your foreperson has returned as
             your unanimous verdict that the defendant is guilty of
             committing statutory rape between the dates of 3/1/09 and
             4/30/09. Is this your verdict, so say you all? If so, please
             indicate by raising your right hand.

             THE COURT: Let the record reflect all 12 jurors raised
             their right hand.

      In accordance with the jury verdict, the trial court entered judgment against

defendant as to 11 CRS 52390 for violating N.C.G.S. § 14-27.7A(a), which prohibits

both statutory rape or statutory sexual offense. When the jury in the instant case

returned a verdict sheet stating defendant was guilty of statutory rape, it was well-

acquainted with the fact that defendant was charged with statutory sexual offense—

engaging in “a sexual act with another person who is 13, 14, or 15 years old and the

defendant is at least six years older than the person . . . .” The jury heard the trial

court announce the indictment charging statutory sexual offense, heard the evidence

alleging the commission of sexual acts that comprise statutory sexual offense, and,

although the trial court initially stated that the verdict form on 11 CRS 52390 allowed

for a verdict of guilty or not guilty of statutory rape, after a question from the jurors,

the trial court emphasized that in 11 CRS 52390, defendant was charged with

statutory sexual offense. We note the jury had been properly instructed on the charge


                                          - 14 -
                                        STATE V. ROBINSON

                                         Opinion of the Court



of statutory sexual offense as to 11 CRS 52390. Thus, based on Tucker and the above

cited cases, we do not believe the error as to the charge listed on the verdict sheet

amounted to a fundamental error. See Tucker, 156 N.C. App. at 60—61, 575 S.E.2d

at 775. We also note for the record that defendant approved the verdict sheet for this

offense prior to submission to the jury and afterward, accepted the verdict based

thereon. Accordingly, we overrule defendant’s argument and find no error in the

judgment and conviction as to this offense.6

        VACATED IN PART; NO ERROR IN PART.

        Judges STROUD and HUNTER, Jr., ROBERT N., concur.

        Report per Rule 30(e).




        6 By this opinion we are not condoning the lack of diligence by all parties, as well as the trial
court, to ensure that the language in the indictments was consistent with the corresponding offenses
on the verdict sheets. We acknowledge the case was brought to trial on twenty-two indictments (ten
of which were dismissed at trial) alleging statutory sexual assault on two different minors over a period
of time, and that the charging statute and indictments each allowed for the prosecution of either
statutory rape or statutory sexual offense, all of which must have contributed to confusion by counsel,
the court, and the jury. However, while we are satisfied that our case law supports the analysis and
holding as to each issue reviewed, we nevertheless caution all the parties, especially the State, to
increase its vigilance in sex offense cases containing multiple charges so as to reduce the potential for
confusion and to ensure a fair trial based on proper notice to defendants.

                                                 - 15 -
