State v. Fenn

379 S.E.2d 715, 94 N.C. App. 127, 1989 N.C. App. LEXIS 435
CourtCourt of Appeals of North Carolina
DecidedJune 6, 1989
DocketNo. 887SC769
StatusPublished
Cited by2 cases

This text of 379 S.E.2d 715 (State v. Fenn) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fenn, 379 S.E.2d 715, 94 N.C. App. 127, 1989 N.C. App. LEXIS 435 (N.C. Ct. App. 1989).

Opinion

JOHNSON, Judge.

The evidence adduced at trial tended to show that on or about 12 September 1986 the thirteen-year-old prosecutrix was visiting her grandmother for the weekend. On that Friday leading into the weekend, the prosecutrix left her grandmother’s house with two of her uncles, one of whom was defendant, at defendant’s request and with her grandmother’s permission. He asked if the prosecutrix could help him clean up defendant’s girlfriend’s yard. En route, defendant dropped the other uncle off at his stop and the prosecutrix and defendant continued on their way. The prosecu-trix testified that defendant drove around quite a bit and “kept going down all these roads and [she] didn’t know where [she] was.” She testified further that defendant stopped the car on a dirt road, took off her pants, removed his pants half way and had sexual intercourse with her. She also stated that she tried to fight him, screamed, and tried to open the door. When someone approached them from behind in another vehicle defendant pulled his pants on and drove away. Defendant then warned the prosecu-trix that if she ever told anyone “something bad would happen to [her] and [her] family.”

After stopping by his girlfriend’s house for a short while defendant then dropped the prosecutrix off at her grandmother’s house. When she arrived, she cried, changed her clothes which were bloody, and threw them away. The prosecutrix told no one what had happened.

About six months later on 19 March 1987 the prosecutrix became ill and discovered that she was pregnant. She then told her mother of the September incident with her uncle. Her mother then arranged for the child to have an abortion.

By this appeal defendant first argues that the trial court erred by denying his motion to set aside the verdict as being against [130]*130the greater weight of the evidence. Specifically, defendant contends that he was deprived of a full opportunity to prepare his defense because the State was allowed to present evidence that the offense occurred on a Friday in September rather than “on or about 12 September 1986” as stated in the indictment. We find no error.

The defendant correctly asserts that the prosecutrix was unable to recall the exact date of the offense. This fact was borne out on both direct and cross-examination. However, her testimony was consistent with the “on or about 12 September 1986” date stated in the indictment. Furthermore, our Supreme Court has consistently held in cases involving child sexual abuse that a child’s uncertainty regarding the exact date of the offense bears upon the weight and not the admissibility of the evidence. State v. Effler, 309 N.C. 742, 309 S.E. 2d 203 (1983).

In Effler, defendant contended, as the defendant in the case sub judice similarly contends, that he was deprived of the right to a fair trial because the bill of particulars stated that the offense occurred in the afternoon hours, whereas the evidence adduced at trial indicated that the offense occurred between 6:30 p.m. and 9:00 p.m. The Court, citing State v. King, 256 N.C. 236, 123 S.E. 2d 486 (1962), stated that “nonsuit may not be allowed on the ground that the State’s evidence fails to fix any definite time when the offense was committed where there is sufficient evidence that the defendant committed each essential act of the offense.” Effler at 749, 309 S.E. 2d at 207.

The cases which defendant cites in support of his position are distinguishable from the case at bar in that they do not involve young children and the policy considerations applicable to such cases. Due to their age, children cannot be expected to specifically remember dates and times.

Defendant also has failed to demonstrate how his case was prejudiced because of the discrepancy regarding the actual date of the offense. Defendant filed no motion for a bill of particulars in preparing his defense and, more importantly, was well aware of the fact that the prosecutrix was having trouble remembering the exact date of the offense. He cross-examined her as follows:

Q. You’re sure this happened on a Friday?
A. Yes.
[131]*131Q. Friday was a school day, wasn’t it? And you didn’t go to school, did you? You say you went to your grandmothers? [sic]
A. Yes.
Q. Wasn’t it a school day?
A. I don’t remember but . . .
Q. Didn’t school take in in August of 1986?
Miss Freshwater: Objection. If he’d let the witness finish her answer to the question.
THE COURT: She may explain her answer.
A. I don’t remember if it was a school day. I don’t know what day the school started. I don’t remember when it started.
Q. You know it started before Labor Day, didn’t it?
Miss Freshwater: Objection, Your Honor, to the form of that question. It’s argumentative.
The Court: Overruled.
Q. Don’t you?
A. Well sometimes we had school that starts after Labor Day because of sometimes the tobacco season goes in late and I think during that year that was the year we started late because they had a lot of tobacco season going in. But I know this year we did start in the last of August, but I think in ’86 we started kinda late because of the tobacco season. Because a lot of my friends were staying out that week because they had to help finish with the tobacco.
Q. Dee Dee, are you saying that on September 12th, 1986 you hadn’t started school yet?
A. I don’t remember.

Because defendant has failed to demonstrate how he was prejudiced in preparing his defense, we overrule his first question for review.

Next, defendant argues that the court erred by excluding questions he sought to ask the prosecutrix regarding her past sexual behavior. We disagree. Defendant erroneously relies upon a concurring opinion of State v. Stanton, 319 N.C. 180, 353 S.E. 2d 385 [132]*132(1987) to support his position. First, it is important to note that an opinion concurring in the result carries no mandatory weight. Second, the analysis upon which defendant relies did not lead those justices concurring in the result to a finding of prejudicial error. The concurring opinion stated that G.S. sec. 8C-1, Rule 412 should prevent inquiry regarding either a lack of prior sexual activity or the existence of prior sexual activity by the victim with persons other than the defendant.

Defendant extends this analysis and argues that by inquiring into the prosecutrix’s lack of sexual activity the State opened the door and the defense should then have been allowed to cross-examine her regarding her sexual activity. This question was recently addressed against defendant in State v. Degree, 322 N.C. 302, 367 S.E. 2d 679 (1988). In Degree, our Supreme Court held that once the State opens the door into a victim’s sexual activity the defendant may request an in camera hearing so that the court may determine the admissibility and relevance of prior inconsistent statements or other impeachment evidence concerning the victim’s statements regarding her past sexual behavior if it exists.

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Related

State v. Martin
774 S.E.2d 330 (Court of Appeals of North Carolina, 2015)
State v. Gaddy
674 S.E.2d 479 (Court of Appeals of North Carolina, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
379 S.E.2d 715, 94 N.C. App. 127, 1989 N.C. App. LEXIS 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fenn-ncctapp-1989.