State v. McKinney

430 S.E.2d 300, 110 N.C. App. 365, 1993 N.C. App. LEXIS 502, 1993 WL 186838
CourtCourt of Appeals of North Carolina
DecidedJune 1, 1993
Docket9219SC131
StatusPublished
Cited by17 cases

This text of 430 S.E.2d 300 (State v. McKinney) 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. McKinney, 430 S.E.2d 300, 110 N.C. App. 365, 1993 N.C. App. LEXIS 502, 1993 WL 186838 (N.C. Ct. App. 1993).

Opinions

GREENE, Judge.

Defendant appeals from judgments entered 10 September 1991, which judgments are based on jury verdicts convicting defendant of two counts of taking indecent liberties with a child, N.C.G.S. § 14-202.1, a Class H felony with a maximum term of ten years and a presumptive term of three years, and three counts of first-degree rape, N.C.G.S. § 14-27.2, a Class B felony with a maximum term of life in prison.

On 16 July 1990, defendant was indicted in Randolph County for one count of first-degree rape of T.B., a child under the age of thirteen, and for one count of taking indecent liberties with T.B. The indictments allege that the offenses occurred on 15 March 1988. On 20 August 1990, defendant was indicted in Guilford County for another count of first-degree rape of T.B. Defendant was also indicted on 20 August 1990 in Guilford County for one count of first-degree rape of S.J., a child under the age of thirteen. Both of the indictments allege that the date of the offenses was “July, 1985 thru July, 1987.” Defendant filed a motion for a bill of particulars in these cases. The State responded in relevant part that, because of the young age of the children involved, it “[could] not give a time of any occurrence,” but that S.J. stated that it happened when she was six or seven years old and continued until she was [368]*368nine, and T.B. stated that defendant “began messing with me when I was four and continued until I was nine.” Defendant made a pre-trial motion to dismiss the two Guilford County rape indictments on the ground that they fail to allege the date of the offenses with sufficient particularity to enable defendant to prepare an adequate defense in violation of N.C.G.S. § 15A-924(a)(4) and his constitutional rights. The trial court denied the motion.

On 26 November 1990, defendant was indicted in Randolph County for one count of taking indecent liberties with D.C., a child under the age of sixteen, which, according to the indictment, occurred on 15 July 1989. On 31 July 1991, defendant waived venue in the two Guilford County rape cases alleged to have occurred between July 1985 thru July 1987. These cases were moved to Randolph County and were consolidated for trial with the three Randolph County indictments. Defendant filed a written motion in limine in all the cases seeking an order instructing the district attorney and all witnesses for the State to refrain from mentioning in the presence of the jury any alleged prior acts of sexual misconduct on the part of defendant. The trial court denied defendant’s motion in limine and instead decided to rule on the admissibility of the evidence as needed at trial.

At trial, the State presented the testimony of complainant S.J., who was fourteen years old at the time of trial. S.J. testified that when she was six or seven years old, she would visit defendant at his home and sometimes would spend the night. On one occasion when she spent the night at defendant’s home in High Point along with her cousin, defendant played a “dirty” movie which S.J., her cousin, and defendant watched. They later went to sleep in defendant’s room. S.J. woke up and found defendant unclothed and lying on top of her. According to S.J., defendant had his “private” inside of her, and that this had happened before.

The State also presented the testimony of complainant T.B., who was eleven years old at the time of trial. T.B. testified that when she was five or six years old, defendant took her and her cousin skating and then to his apartment in High Point to spend the night. T.B. awoke to find defendant’s “hands on my private.” T.B. also testified that defendant later moved to a house in Hillsville, where he built a swimming pool in the back yard during the second summer after he moved in. On one occasion during the first summer after defendant moved into the house in Hillsville, while visiting [369]*369defendant, T.B. recalled defendant taking off his clothes and “sticking his penis inside” her. T.B. testified that defendant had done the same thing “a lot” at his High Point residence.

Complainant D.C., who was nine years old at trial, testified that one night when she was six or seven years old, she and a friend spent the night on a couch at defendant’s house in Hillsville, and that it was after defendant built his swimming pool. D.C. testified that defendant woke her up in the middle of the night, took her hand, and placed.it “on his private.”

In addition to testimony of the complainants, the State presented, over defendant’s objection, as evidence of a common plan or scheme on the part of defendant to molest young girls the testimony of Cindy Kendrick and Lori Kuplin, both of whom were twenty years old at the time of trial. Kendrick testified that on one occasion when she was twelve or thirteen years old (prior to July, 1985), she, Lori Kuplin, and S.J. were at defendant’s home. According to Kendrick, defendant made the girls watch adult films and later took S.J. to his bedroom where the two spent the night with the door locked. Lori Kuplin’s testimony was essentially the same as that of Kendrick.

At the close of the State’s evidence, defendant made a motion to dismiss the Randolph County charge of indecent liberties involving D.C. on the ground that the State failed to present sufficient evidence of the essential elements of the offense. Defendant also made a motion to dismiss the Randolph County indecent liberties and first-degree rape indictments involving T.B., on the ground that the evidence presented by the State in support of these indictments shows that the offenses occurred in the summer of 1987, and not on the dates alleged in the indictments —15 March 1988. Defendant’s motions were denied by the trial court.

Defendant presented evidence, including the testimony of a clinical psychologist who had administered a penile plethysmograph test to defendant. The psychologist testified that, based on the results of the test, in his opinion defendant did not have the mental condition known as pedophilia. At the close of all the evidence and after arguments of counsel and instructions, the jury convicted defendant on all charges. After sentencing, defendant filed a motion for appropriate relief pursuant to N.C.G.S. § 15A-1414, alleging, among other things, that members of the jury, including the alternate juror, were improperly discussing the case during breaks and [370]*370prior to the submission of the case to the jury for deliberation. The trial court, after making detailed findings and conclusions, denied the motion. Defendant appeals.

The issues presented are whether the trial court committed reversible error in (I) refusing to dismiss for lack of specificity the rape indictments which allege that defendant committed one count of first-degree rape each against S.J. and T.B. in “July, 1985 thru July, 1987”; (II) refusing to dismiss the indecent liberties and first-degree rape indictments involving T.B. on the ground that the evidence presented at trial regarding the date of the offenses varied from the 15 March 1988 date alleged in the indictments; and (III) admitting pursuant to Rule 404(b) evidence of defendant’s prior sexual misconduct involving young girls.

I

Defendant argues that the two first-degree rape indictments alleging the date of the offenses as “July, 1985 thru July, 1987” are fatally defective in that they fail to allege with specificity the date of the offenses in violation of N.C.G.S. § 15A-924(a)(4) and the United States Constitution.

North Carolina Gen. Stat.

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State v. McKinney
430 S.E.2d 300 (Court of Appeals of North Carolina, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
430 S.E.2d 300, 110 N.C. App. 365, 1993 N.C. App. LEXIS 502, 1993 WL 186838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckinney-ncctapp-1993.