                               NO. COA14-317

                      NORTH CAROLINA COURT OF APPEALS

                         Filed: 18 November 2014


STATE OF NORTH CAROLINA


    v.                                  Wake County
                                        No. 11 CRS 226769, 11 CRS
                                        226773-75
ROBERT EARL SPENCE, JR.



    Appeal by defendant from judgments entered 18 June 2013 by

Judge Paul C. Ridgeway in Wake County Superior Court.           Heard in

the Court of Appeals 10 September 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Margaret A. Force, for the State.

    W. Michael Spivey, for defendant.


    ELMORE, Judge.


    Robert Earl Spence, Jr. (defendant) appeals from judgments

entered upon his convictions for four counts of first-degree

rape, four counts of first-degree sex offense, and four counts

of incest with a near relative.              Defendant was sentenced to

three   consecutive    terms   of   active    imprisonment   each   for   a

minimum of 230 months and a maximum of 285 months.

                                    I. Facts
                                          -2-
       The State indicted defendant on three counts of rape, sex

offense, and incest in each of six cases (eighteen counts in

total) stemming from alleged sexual misconduct between defendant

and    his   daughter       (“Donna1”).       At   trial,   the   State      presented

evidence that defendant continually sexually abused Donna when

she was five years old until she was twelve.                   Donna recalled the

locations where the abuse occurred but was unable to remember

dates or time-frames.             The State attempted to establish the

time-frames by establishing the years in which defendant lived

at the various locations of the alleged abuse.                     The approximate

time-frames established that defendant separated from his wife

in 2002, moved out of the family home and briefly lived with his

cousin, Dartanian Hinton, followed by his oldest brother, Ellis

Rodney McCoy.          Defendant lived with McCoy from approximately

2003 until early 2005.            Subsequently, defendant lived with his

younger brother, David Edison Spence, for the duration of 2005.

During the final months of 2005 or early in 2006, defendant

resided      with     ATN    Hinton    for      about   five      or   six    months.

Thereafter, defendant married and moved into the home of his new

wife,    Joann      Freeman.      In   July     2006,   defendant      divorced   Ms.




1
    Donna is a pseudonym used to protect the identity of the minor.
                                         -3-
Freeman, re-married, and moved into another house with his third

wife, Angel Spence.

       During her trial testimony, Donna became nervous, visibly

upset, and began to directly ask defendant questions about his

conduct towards her.             In response, the trial court recessed

court    and,     over    defendant’s       objection,    ordered      that   the

courtroom remain closed for the duration of Donna’s direct and

cross-examination testimony.

       At the close of all the evidence, defendant made a motion

to dismiss three of the first-degree sex offense charges that

were    alleged   to     have    occurred   in   2001,   2004,   and   2005   for

insufficiency      of     the    evidence.        The    trial   court    denied

defendant’s motion, and          the charges were submitted to the jury.

       While    reading    the    jury   instructions,     the   trial    court,

without any objection by defendant, followed the pattern jury

instructions by referring to Donna as “the victim.”                       During

deliberations, the jury asked the trial court whether a penis

was an “object” for the purposes of “penetration” to support the

counts of first-degree sex offense.               The trial court, without

any objection by defendant, answered, “the use of the word ‘any

object’ refers to parts of the human body as well as inanimate

or foreign objects.             So that is the definition of the term
                                           -4-
‘object.’    And then under that definition the penis being a part

of the human body, that would be within the definition of an

object.”

    The jury returned with unanimous verdicts of guilty of four

counts of first-degree rape, four counts of first-degree sex

offense, and four counts of incest with a near relative.

                                        II. Analysis

a.) Preservation of Constitutional Issue
    Defendant       first       contends     that    the     trial    court   erred    by

violating his sixth amendment constitutional right to a public

trial when it closed the courtroom during Donna’s testimony.

The State contends that defendant failed to preserve this issue

on appeal.       We disagree.

    N.C. Appellate Procedure Rule 10(a)(1) mandates that “[i]n

order to preserve an issue for appellate review, a party must

have presented to the trial court a timely request, objection,

or motion, stating the specific grounds for the ruling the party

desired    the    court    to    make   if   the     specific    grounds      were    not

apparent     from    the        context.”           N.C.R.     App.     P.    10(a)(1).

Accordingly, “where a theory argued on appeal was not raised

before the trial court, the law does not permit parties to swap

horses between courts in order to get a better mount in the

reviewing court.”         State v. Ellis, 205 N.C. App. 650, 654, 696
                                      -5-
S.E.2d 536, 539 (2010) (citation and quotation marks omitted).

This    general   rule    applies     to    constitutional     questions,      as

constitutional issues not raised before the trial court “will

not be considered for the first time on appeal.”               Id.

       Pursuant   to    the   sixth   amendment     of   the   United      States

constitution,     a    criminal   defendant    is   entitled    to   a    “public

trial.”    U.S. Const. amend. VI.

           The requirement of a public trial is for the
           benefit of the accused; that the public may
           see he is fairly dealt with and not unjustly
           condemned,   and    that  the     presence   of
           interested spectators may keep his triers
           keenly   alive    to   a    sense    of   their
           responsibility and to the importance of
           their functions.     In addition to ensuring
           that judge and prosecutor carry out their
           duties    responsibly,    a     public    trial
           encourages witnesses to come forward and
           discourages perjury.
Waller v. Georgia, 467 U.S. 39, 46, 81 L. Ed. 2d 31, 38 (1984)

(citations and quotation marks omitted).

       In order to preserve a constitutional issue for appellate

review, a defendant must voice his objection at trial such that

it is apparent from the circumstances that his objection was

based on the violation of a constitutional right.                        State v.

Rollins (Rollins I), ___ N.C. App. ___, ___, 729 S.E.2d 73, 76

(2012).
                                    -6-
    Here,    the   trial    court   ordered     that   bystanders    in    the

courtroom,   who   included    people     on   defendant’s     witness   list,

remain outside the courtroom for the remainder of the alleged

victim’s testimony.        Defendant’s attorney objected in response

to the closure of the courtroom:

            DEFENDANT’S ATTORNEY: Your Honor, just if
            your Honor could note defendant’s objection.
            People that are here that are on my witness
            list who have been seated in the audience
            haven’t contributed to this disruption and
            haven’t been making faces or gestures which
            would in any way cause the upset that the
            witness has been displaying and I object to
            them being removed, but I understand the
            Court has enormous discretion in the matter.
            I just don’t like it. . . .     I’m concerned
            that the jury may feel that somehow my part
            of the audience had something to do with the
            witness’s behavior and I don’t think that’s
            the case and I wouldn’t want to let that be
            inferred or implied in the Court’s
            ruling, so if the Court could fashion some
            statement to that effect I’d be grateful.

    Before    defendant     cross-examined      Donna,   the    trial     court

ordered that the courtroom remain closed, and defendant objected

to the closure once again.


            TRIAL COURT: All right. I’ve considered
            whether there’s any particular reason to
            allow bystanders to be in the courtroom
            during    the   cross-examination  and   I’m
            inclined to continue the order closing the
            courtroom during the
            remainder    of  this   witness’s testimony,
            including cross-examination, so that would
                                        -7-
             be for the same reasons and findings of fact
             that I made previously.    That would be my
             intention. . . . [D]o you want to be heard?

             DEFENDANT’S ATTORNEY: Just an objection, but
             if I could go out for a minute and tell my
             people they don’t need to stick around.

             TRIAL COURT: Again, clarify that once she is
             off the stand they would be welcome back.

It is   apparent from the context that               the defense attorney’s

objections were made in direct response to the trial court’s

ruling to remove all bystanders from the courtroom—a decision

that directly implicates defendant’s constitutional right to a

public trial.     Thus, we hold that defendant preserved this issue

on appeal.      See State v. Comeaux, __ N.C. App. __, __, 741

S.E.2d 346, 349 (2012) review denied, __ N.C. __, 739 S.E.2d 853

(2013) (ruling that the “[d]efendant’s objection to ‘clear[ing]

the   courtroom’”   preserved     the    defendant’s       argument   on   appeal

that his constitutional right to a public trial was violated);

see   also   Rollins   I,   __   N.C.    App.   at   __,    729   S.E.2d   at   76

(holding that the defendant preserved appellate review of an

alleged violation of his constitutional right to a public trial

“based on his contention [at trial] that                   ‘[c]ourt should be

open’”).

b.) Constitutional Right to a Public Trial
                                      -8-
      We now address the merits of defendant’s argument that the

trial   court     violated     defendant’s       constitutional      right     to   a

public trial.      For the reasons set forth below, we hold that the

trial court did not violate defendant’s constitutional right.

      “In reviewing a trial judge’s findings of fact, we are

‘strictly      limited    to   determining       whether    the    trial     judge’s

underlying findings of fact are supported by competent evidence,

in which event they are conclusively binding on appeal, and

whether   those    factual      findings    in    turn     support    the    judge’s

ultimate conclusions of law.’”         State v. Williams, 362 N.C. 628,

632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d

429, 434 (2010) (“‘[F]indings of fact made by the trial judge

are conclusive on appeal if supported by competent evidence,

even if . . . there is evidence to the contrary.’”                          (quoting

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,

655   S.E.2d    362,     369   (2008))).     This     court       reviews    alleged

constitutional violations de novo.               State v. Tate, 187 N.C. App.

593, 599, 653 S.E.2d 892, 897 (2007).

      “[T]he right to an open trial may give way in certain cases

to other rights or interests, such as the defendant’s right to a
                                            -9-
fair trial or the government’s interest in inhibiting disclosure

of sensitive information.”                Waller, 467 U.S. at 45, 81 L. Ed. 2d

at 38.     In accordance with this principle, N.C. Gen. Stat. § 15-

166 (2013) permits the exclusion of certain persons from the

courtroom       in     cases    involving        rape    and    other      sexually-based

offenses:

            In the trial of cases for rape or sex
            offense or attempt to commit rape or attempt
            to commit a sex offense, the trial judge
            may, during the taking of the testimony of
            the prosecutrix, exclude from the courtroom
            all persons except the officers of the
            court, the defendant and those engaged in
            the trial of the case.

      However,       when      deciding    whether       closure      of   the   courtroom

during a trial is appropriate, a trial court must: (1) determine

whether     the      party      seeking         the   closure      has     advanced     “an

overriding interest            that is likely to be prejudiced” if the

courtroom is not closed; (2) ensure that the closure is “no

broader than necessary to protect that interest”; (3) “consider

reasonable      alternatives         to    closing      the    proceeding”;       and   (4)

“make findings adequate to support the closure.”                             Waller, 467

U.S. at 48, 81 L. Ed. 2d at 39.                         The findings regarding the

closure must be “specific enough that a reviewing court can

determine whether the closure order was properly entered.”                              Id.

at   45,   81     L.    Ed.     2d   at    38    (citation      and     quotation     marks
                                    -10-
omitted).       In making its findings, “[t]he trial court’s own

observations can serve as the basis of a finding of fact as to

facts   which    are   readily   ascertainable   by   the   trial   court’s

observations of its own courtroom.”         State v. Rollins (Rollins

II), __ N.C. App. __, __, 752 S.E.2d 230, 235 (2013) (citation

omitted).

    Here, the trial court originally issued oral findings of

fact in support of its decision to close the courtroom:

            THE COURT: Outside the presence of the jury,
            in my discretion I determined that it would
            be in the best interest of justice to
            exclude all bystanders from this courtroom
            while   Ms.    Spence    continues    with   her
            testimony.   I have no complaint about the
            way that the bystanders are conducting
            themselves.     It’s simply that there are
            approximately, I would say, thirty adults,
            many of whom are friends or family members,
            who   appeared   at    this   trial   that   are
            obviously -- have an interest in these
            proceedings in the gallery.           I’ve also
            observed that Ms. Spence is nervous and
            upset as she testifies and as essentially
            may be expected.        In any event, in my
            discretion   and    in   my    judgment   simply
            allowing this courtroom to be as free from
            distractions as possible would be in the
            best interest of justice, so what I’ve done
            is simply required that all bystanders
            remain outside for the remainder of this
            witness’s direct testimony.        I’ll revisit
            this after we take our lunch recess and I’ll
            revisit it at the close of the direct
            testimony of this witness, but that would be
            my order at this time.
                                       -11-
When the trial court re-visited its ruling after the close of

the alleged victim’s direct testimony, it stated:

             TRIAL COURT: All right. I’ve -- I will say
             that since the audience members were asked
             to leave the courtroom I do think that the
             testimony has been easier to -- for the
             jurors to understand anyway.    There’s been
             less crying and less nervousness, so I’m
             going to continue in my discretion to
             continue that order throughout the remainder
             of the direct examination.

      The trial court’s original findings of fact relating to its

decision     to   close    the    courtroom    are     supported     by     competent

evidence.     During the alleged victim’s testimony, she exhibited

nervousness and cried, such that her testimony was difficult to

understand.       She     eventually    became    so      upset    that   she   asked

defendant directly, “[w]hy did you do this to me? Why? Why?”

The trial court determined that the numerous adult bystanders in

the   courtroom,    in    part,    contributed       to   the     alleged    victim’s

emotional state, and in order to re-establish courtroom order,

the trial court recessed the trial for a few minutes.

      Under the first Waller factor, the trial court articulated

that the overriding interest that was likely to be prejudiced

absent   a   courtroom     closure     was    courtroom     order,     the    alleged

victim’s emotional well-being, and the jury’s ability to hear

the alleged victim’s testimony.              The trial court also considered
                                   -12-
the second Waller factor, ensuring that the closure was not too

broad, as it only ordered closure during the alleged victim’s

testimony once courtroom order was threatened and re-visited its

ruling after the lunch recess and before cross-examination.

    However, the trial court’s original order did not indicate

that it considered reasonable alternatives to the closure.                As

such,   the    absence   of   findings    on   the   third   Waller   factor

prevented us from conducting a proper review of the propriety of

the closure.

Therefore, we remanded this matter for the trial court to enter

a supplemental order containing supported findings of fact and

conclusions of law related to the third Waller factor.                In its

supplemental order, the trial court addressed the third Waller

factor:

              10.   The    Court    considered   reasonable
              alternatives   to    the   closure   of   the
              courtroom.

              11. In considering reasonable alternatives,
              having previously observed that taking a
              recess to allow the alleged victim to
              compose herself did not have any beneficial
              effect on her emotional state or the ability
              of the Court and jurors to hear and
              understand    her    testimony,  the   Court
              concluded that the taking of additional
              recesses   would   not   likely lead  to   a
              different outcome.

              12. The Court considered, as an alternative
                                      -13-
               to closing the courtroom, arranging for the
               remote testimony of the victim via closed
               circuit television.        However, the Court
               excluded   that    possibility     because   the
               alleged   victim    did   not   appear   to   be
               emotionally    distressed    by   the   physical
               proximity of the Defendant and a remote
               testimony    arrangement    would   impair   the
               Defendant’s rights to confront the alleged
               victim and would impair the ability of the
               jury   to   fully   assess    her   credibility.
               Therefore, the Court found that closure of
               the courtroom to all nonessential personnel
               was the most reasonable alternative.

       These     supplemental     findings   are   supported   by   competent

evidence in light of the trial court’s own observations of the

victim and other individuals inside the courtroom.

       In   sum,    the   trial    court’s   orders   together      considered

Donna’s young age, nature of the charges, familial relationship

with   defendant,     other     non-essential   personnel   present    in   the

courtroom, necessity of Donna’s non-hearsay testimony, limited

time and scope of the courtroom closure, and consideration of

reasonable alternatives to closing the courtroom.                   Thus, the

findings were adequate to support a courtroom closure pursuant

to the fourth Waller factor.           Accordingly, the trial court did

not violate defendant’s constitutional right to a public trial.

 c.) Jury Instructions


       Defendant also argues that the trial court committed plain

error by instructing the jury in a manner that permitted the
                                          -14-
jury to convict defendant of both first-degree rape and first-

degree   sex     offense     based     upon      one    act    of    penile     vaginal

penetration.          Specifically,     defendant        argues     that    “the   error

occurred because the trial court erroneously instructed the jury

that a penis could be considered an ‘object’ for purposes of

establishing      a      sexual     act     by        either   genital        or   anal

penetration.”         As a result, defendant contends that the jury

became confused about whether a penis was an “object” for the

purposes of “penetration” to support the counts of first-degree

sex offense.      We disagree.

      Pursuant    to     N.C.   Gen.    Stat.     §    15A-1443(c)     (2013),      “[a]

defendant is not prejudiced by the granting of relief which he

has   sought     or    by   error      resulting       from    his    own     conduct.”

Accordingly, “a defendant who invites error has waived his right

to all appellate review concerning the invited error, including

plain error review.”         State v. Hope, ___ N.C. App. ___, ___, 737

S.E.2d 108, 111 (2012), review denied, 366 N.C. 438, 736 S.E.2d

493 (2013) (citation and internal quotation marks omitted).

      Our Supreme Court has addressed the concept of “inviting

error”   within       the   context    of     jury     instructions.          State   v.

Sierra, 335 N.C. 753, 759-60, 440 S.E.2d 791, 795 (1994).                             In

Sierra, the defendant, on appeal, argued that the trial court
                                     -15-
should have instructed the jury on second-degree murder.                    Id.

At trial, however, the defendant specifically declined the trial

court’s offer to provide such an instruction on two separate

occasions.      Id.   Our Supreme Court held that “defendant is not

entitled to any relief and will not be heard to complain on

appeal” despite any possible error by the trial court because he

acquiesced to the trial court’s jury instructions.            Id.

      Similarly, in State v. Weddington, the defendant argued to

our   Supreme   Court   that   the   trial   court   erred   by   failing   to

properly clarify a jury question regarding the time at which the

intent to kill must be formed for the charge of first-degree

murder.    329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991).                   At

trial, however, defendant agreed with the trial court’s decision

to merely reinstruct the jury on each element of the offense.

Id.   Our Supreme Court held that “[t]he instructions given were

in conformity with the defendant’s assent and are not error.

The defendant will not be heard to complain on appeal when the

trial court has instructed adequately on the law and in a manner

requested by the defendant.”         Id. (citation omitted).

      Comparable to Sierra and Weddington, the jury in the case

at bar asked whether “the penis is considered an object” for the

purposes of “penetration” for the charge of first-degree sex
                                  -16-
offense.    In deciding how to answer the jury, the trial court

stated, in relevant part:

           TRIAL COURT: What I’m inclined to say is
           that the legal definition of an object is
           any object, inanimate or animate, so part of
           the body may be an animate object or some
           other item would be an inanimate object. The
           definitions   of   sexual   acts   have been
           provided to the jury.      They include some
           specific    sexual   acts    such   as  anal
           intercourse, which is penetration by the
           penis into the anus, and then rape, which is
           penetration of the vagina by the penis, so
           those are where there’s a more specific
           definition,   that’s   the   definition that
           should be used.


       The trial court then asked defendant’s attorney about his

thoughts on the issue, and defendant’s attorney responded, “I

agree. . . . [O]r the Court can reinstruct them on that count,

just see what happens.”     The trial court then responded:

           TRIAL COURT: I’m just going to read the
           definition[,] and under that definition of
           penis [sic] is a part of body and so as a
           matter of law, since the Supreme Court has
           said that any object embraces parts of the
           human body as well as inanimate or foreign
           objects, and the answer to the question is
           yes, the penis is considered an object.

       In response to the trial court’s proposed answer to the

jury   question,   defendant’s   attorney   stated,   “[t]hat’s   fine.”

After the trial court answered the jury’s question in the exact

manner proposed above, he asked the parties, “I didn’t go on to
                                      -17-
distinguish between vaginal intercourse and sexual intercourse

offense, but do either of you feel that further clarification is

needed for the jury?”        Defendant’s attorney responded, “[n]o.”

    Thus,      defendant’s        attorney   actively          participated     in

crafting    the     trial   court’s   response      to   the    jury   question,

overtly    agreed    with   the   trial   court’s    interpretation      that    a

penis could be considered an “object,” and denied the trial

court’s proposed clarification between vaginal intercourse and a

sexual act for purposes of a sexual offense.                    Accordingly, we

rule that defendant invited any error stemming from the trial

court’s instructions and dismiss this issue on appeal.                         See

Hope, ___ N.C. App. at ___, 737 S.E.2d at 113 (dismissing issue

on appeal because the defendant invited error by “objecting to

the correct instruction, requesting the incorrect instruction,

and by choosing to forgo a self-defense instruction”); see also

State v. Wilkinson, 344 N.C. 198, 235-36, 474 S.E.2d 375, 396

(1996) (ruling that the defendant invited error and declining to

review issue on appeal “because, as the transcript reveal[ed],

defendant consented to the manner in which the trial court gave

the instructions to the jury”).

d.) Motion to Dismiss
    Next,     defendant      argues   that   the    trial      court   erred    by

denying his motion to dismiss certain first-degree sex offense
                                            -18-
charges (11 CRS 226769, 11 CRS 226773 and 11 CRS 226774) for

insufficiency of the evidence.               We agree.

          “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 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed.

2d 150 (2000).          “Substantial evidence is such relevant evidence

as    a    reasonable       mind    might   accept    as     adequate    to    support   a

conclusion.”          State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980).             “In making its determination, the trial court

must       consider     all     evidence     admitted,       whether     competent       or

incompetent, in the light most favorable to the State, giving

the       State   the       benefit    of   every     reasonable        inference     and

resolving any contradictions in its favor.” State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S.

1135, 132 L. Ed. 2d 818 (1995).
                                        -19-
       In relevant part, an individual is guilty of a first-degree

sex offense if the person “engages in a sexual act . . . [w]ith

a victim who is a child under the age of 13 years and the

defendant is at least 12 years old and is at least four years

older    than   the    victim[.]”        N.C.    Gen.     Stat.   §    14-27.4(a)(1)

(2013).      A “sexual act” is defined as “cunnilingus, fellatio,

analingus, or anal intercourse, but does not include vaginal

intercourse.”          Importantly,      a      “sexual    act”       is   also   “the

penetration, however slight, by any object into the genital or

anal opening of another person’s body[.]”                  N.C. Gen. Stat. § 14-

27.1    (2013).       An    “object”   for   the    purposes      of   this   statute

“embrace[s] parts of the human body as well as inanimate or

foreign objects.”          State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d

433, 436 (1981).

       First-degree rape requires an individual to “engage[] in

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

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

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

Stat.    §   14-27.2       (2013).     Vaginal     intercourse        is   defined   as

“penetration, however slight, of the female sex organ by the

male sex organ.”             State v. Combs, __ N.C. App. __, __, 739
                                              -20-
S.E.2d 584, 586 (2013) review denied, __ N.C. __, 743 S.E.2d 220

(2013).

       Because      the    crime      of     first-degree        sex    offense         excludes

vaginal     intercourse,           and      vaginal    intercourse           is    a    specific

element of first-degree rape that requires penile penetration, a

“sexual act” of penetration by “any object into the genital”

opening under N.C. Gen. Stat. § 14-27.4 constitutes first-degree

rape if the “object” is a penis.                      See State v. Leeper, 59 N.C.

App. 199, 202, 296 S.E.2d 7, 9 (1982) (holding that “[w]here one

statute     deals    with      a   subject      in     detail    with    reference              to   a

particular situation . . . and another statute deals with the

same    subject       in       general       and      comprehensive          terms[,]”           the

particular statute will control “unless it clearly appears that

the    General       Assembly         intended        to   make        the        general        act

controlling in regard thereto”).

       Here,   each       of    the      first-degree      sex    offense          indictments

subject to defendant’s motion to dismiss alleged that defendant

“unlawfully,        willfully         and    feloniously        did    engage          in   a    sex

offense with D.SP., by force and against that victim’s will.”

11    CRS   226769    alleged         that     the     offense    occurred             between       1

January and 31 December of 2001, 11 CRS 226773 alleged that the

offense occurred between 1 January 2004 and 31 December 2004,
                                         -21-
and 11 CRS 226774 alleged that the offense occurred between 1

January 2005 and 31 December 2005.

       With regard to 11 CRS 226769, the only evidence that a sex

offense    had    occurred   was    when   Donna    read    an   entry   from   her

journal    that    chronicled      her   prior    abuse    and   other   witnesses

testified about statements Donna made to them prior to trial.

This evidence indicated that the sexual abuse by defendant began

in 2001 in Donna’s parents’ home when she was five or six years

old.    In one particular instance, defendant penetrated Donna’s

anal   opening    and   engaged     in   anal    intercourse     with    her   in   a

trailer.     While the State purported to use this evidence to

corroborate Donna’s testimony, it could not use the testimony

for substantive purposes.           See State v. Gell, 351 N.C. 192, 204,

524 S.E.2d 332, 340 (2000) (“It is well established that . . .

prior statements admitted for corroborative purposes may not be

used as substantive evidence.”).                The trial court appropriately

instructed the jury:

            Evidence has been received tending to show
            that at an earlier time a witness made a
            statement which may conflict with or be
            consistent with testimony of the witness at
            this trial.    You must not consider such
            earlier statement as evidence of the truth
            of what was said at that earlier time
            because it was not made under oath at this
            trial. If you believe the earlier statement
            was made and that it conflicts with or is
                                 -22-
           consistent with the testimony of the witness
           at this trial you may consider this and all
           facts and circumstances bearing on the
           witness’s truthfulness in deciding whether
           you will believe or disbelieve the witness’s
           testimony.


       Although the State provided evidence of vaginal intercourse

during this time period, such conduct was sufficient to support

defendant’s first-degree rape conviction, not a first-degree sex

offense.    Thus, the State failed to provide substantial evidence

of a first-degree sex offense in 2001, and the trial court erred

by denying defendant’s motion to dismiss this charge in 11 CRS

226769.

       Similarly, Donna’s in-court testimony shows that in 2004

and 2005, defendant engaged in vaginal intercourse with her on

numerous occasions.     Such conduct was sufficient evidence of

first-degree rape, and defendant was convicted of such charges.

Although Donna’s journal entry and other witness testimony about

statements made by Donna before trial indicated that defendant

committed a “sexual act” through anal intercourse with Donna at

McCoy’s house between 2004 and 2005, there is no substantive

evidence that during this time period, defendant committed a

“sexual act” by way of cunnilingus, fellatio, analingus, anal

intercourse, or penetration by any object (other than a penis)

into    Donna’s   genital   or   anal   opening.   Leeper,   supra.
                                         -23-
Accordingly, the State failed to provide substantial substantive

evidence of a “sexual act” for                  the first-degree sex offense

charges in 11 CRS 226773 and 11 CRS 226774.

      We    also    note    that    in   its    brief,    the     State   points    to

substantial        evidence    at    trial      to    support     first-degree      sex

offenses occurring in 2006, but fails to cite any substantive

evidence in the record of such conduct in 2001, 2004, or 2005.

Nevertheless, the State argues that we should apply the rule of

leniency to the case at bar.

      Generally, “[t]he date given in the bill of indictment is

not an essential element of the crime charged and the fact that

the   crime   was     in    fact    committed    on    some     other   date   is   not

fatal.”     State v. Pettigrew, 204 N.C. App. 248, 253, 693 S.E.2d

698, 702 (2010) (internal citation and quotation marks omitted).

With regard to child sexual abuse cases, the courts of this

State “are lenient . . . where there are differences between the

dates alleged in the indictment and those proven at trial.”

State v. McGriff, 151 N.C. App. 631, 635, 566 S.E.2d 776, 779

(2002)     (citation       omitted).     The     rationale       for    this   relaxed

standard is “in the interests of justice and recognizing that

young children cannot be expected to be exact regarding times

and dates, a child’s uncertainty as to time or date upon which
                                        -24-
the offense charged was committed goes to the weight rather than

the admissibility of the evidence.”                  Id. (citation and internal

quotation marks        omitted).            This policy of leniency applies

unless    defendant     “demonstrates         that    he   was    deprived      of   his

defense because of lack of specificity[.]”                   Id.     (citation and

internal quotation marks omitted).

      We do not believe the rule of leniency is applicable to the

case at bar.       The State mischaracterizes the issue as one of

time variance, when it is, in fact, a question of sufficiency of

the evidence.      Had the State, at trial, shown that the specific

sexual offense conduct           that was alleged to have occurred in

2001, 2004, and 2005 happened on a different date, the rule of

leniency would apply.           However, the first-degree sexual offense

indictments contain identical language and lack specificity as

to particular conduct.          The only substantive evidence of sexual-

offense      conduct    elicited       at    trial    occurred      in    2006,      and

defendant was convicted of that offense.                         Thus, the State’s

theory on appeal would require us to impute the conduct in 2006

to   2001,    2004,    and     2005,    which    would     result    in    punishing

defendant more than once for the same conduct in violation of

the double jeopardy clause of the U.S. constitution.                       See State

v.   Gardner,    315    N.C.    444,    454,    340    S.E.2d     701,    708   (1986)
                                                  -25-
(“[W]hen    a    person       is    .    .    .    convicted        and    sentenced   for   an

offense, the prosecution is prohibited from . . . sentencing him

a second time for that offense[.]”).

e.) Referring to Donna as “the victim”
       Finally, defendant argues that the trial court erred by

referring       to    Donna    as       the       “alleged    victim”       in   its   opening

remarks to the jury and then repeatedly referring to her as “the

victim” in its final jury instructions.                           We disagree.

       Defendant concedes on appeal that he never objected to the

trial court referring to Donna as “the victim.”                              Thus, we review

this    issue        for   plain        error,       not     de     novo    as   a   statutory

violation.       See State v. Phillips, ___ N.C. App. ___, ___, 742

S.E.2d 338, 341 (2013), review denied,                            ___ N.C. ___, 753 S.E.2d

671 (2014) and review dismissed, ___ N.C. ___, 753 S.E.2d 671

(2014) (“[W]here our courts have repeatedly stated that the use

of the word ‘victim’ in jury instructions is not an expression

of opinion, we will not allow defendant, after failing to object

at trial, to bring forth this objection on appeal, couched as a

statutory violation, and thereby obtain review as if the issue

was preserved.”).             “In deciding whether a defect in the jury

instruction constitutes ‘plain error’, the appellate court must

examine the entire record and determine if the instructional

error had a probable impact on the jury’s finding of guilt.”
                                      -26-
State v. Richardson, 112 N.C. App. 58, 66, 434 S.E.2d 657, 663

(1993) (citation omitted).

    Pursuant to N.C. Gen. Stat. § 15A-1232, “[i]n instructing

the jury, the judge shall not express an opinion as to whether

or not a fact has been proved and shall not be required to

state, summarize or recapitulate the evidence, or to explain the

application of the law to the evidence.”               N.C. Gen. Stat. § 15A-

1232 (2013).

    Defendant relies on State v. Walston, ___ N.C. App. ___,

___, 747 S.E.2d 720, 728 (2013), review allowed, writ allowed,

___ N.C. ___, 753 S.E.2d 666 (2014) and review denied, ___ N.C.

___, 753 S.E.2d 667 (2014), in support of his argument that the

trial court erred in referring to Donna as “the victim,” as it

was an expression of an improper opinion to the jury.                       We are

unpersuaded.

    In    Walston,    the    trial    court,    over    defendant’s    repeated

objections, used the word “the victim” instead of “the alleged

victim” in its jury instructions, which followed the pattern

jury instructions.      Id. at ___, 747 S.E. 2d at 727.           This Court

reviewed the appeal         de novo    because the defendant alleged a

statutory violation of N.C. Gen. Stat. § 15A-1232.                    Id.     This

Court   held   that   the   trial     court    committed   prejudicial       error
                                   -27-
because “[t]he issue of whether sexual offenses occurred and

whether [the complainants] were ‘victims’ were issues of fact

for the jury to decide[,]”        defendant was convicted of offenses

which contained the word “victim” in the jury instructions, and

the pattern jury instructions did not absolve the trial court

from giving correct instructions to the jury.            Id. at ___, 747

S.E.2d at 727-28.

       We acknowledge that the case at bar shares some factual

similarities to Walston.        Most importantly, however, this case

is distinguishable from Walston because we are reviewing this

issue on appeal for plain error, not under a de novo standard of

review.     On this basis, defendant’s argument fails because “it

is clear from case law that the use of the term ‘victim’ in

reference    to   prosecuting   witnesses   does   not   constitute   plain

error when used in instructions[.]”           State v. Henderson, 155

N.C. App. 719, 722, 574 S.E.2d 700, 703 (2003) (emphasis added);

State v. Carrigan, 161 N.C. App. 256, 263, 589 S.E.2d 134, 139

(2003); State v. Hatfield, 128 N.C. App. 294, 299, 495 S.E.2d

163, 166 (1998); Richardson, 112 N.C. App. at 67, 434 S.E.2d at

663.    Moreover, upon review of the evidence, we cannot conclude

that the use of the words “the victim” had a probable impact on

the jury’s finding of guilt.       Donna testified to constant sexual
                                          -28-
abuse    by   defendant     for    approximately             eight    years,      and    her

testimony was corroborated by her journal and other witnesses

who testified as to her prior statements to them.                         Additionally,

the trial court instructed the jury:

              The law requires the presiding judge to be
              impartial.     You should not infer from
              anything that I have done or said that the
              evidence is to be believed or disbelieved,
              that a fact has been proved, or what your
              findings ought to be.    It is your duty to
              find the facts and to render a verdict
              reflecting the truth.


       Thus, we hold that the trial court did not commit plain

error    by    referring    to     Donna       as     “the    victim”      during       jury

instructions.

                                  III. Conclusion

       In sum, we hold that the trial court did not err by 1.)

closing the courtroom during Donna’s testimony, 2.) answering a

jury    question   about    whether       a    penis    could        be   considered      an

“object,” or 3.) referring to Donna as “the victim” during jury

instructions.        However,       the       trial    court     erred      by     denying

defendant’s     motion     to   dismiss          the   first-degree         sex    offense

charges in 11 CRS 226769, 11 CRS 226773 and 11 CRS 226774.

Thus, we vacate those sex-offense convictions and remand for a

new sentencing hearing.

       No error, in part, vacated and remanded, in part.
                         -29-
Judges CALABRIA and STEPHENS concur.
