An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in acc ordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1390 NORTH CAROLINA COURT OF APPEALS Filed: 19 August 2014
STATE OF NORTH CAROLINA
Lincoln County v. Nos. 11 CRS 50314-15
MICHAEL B. POSTELL
Appeal by defendant from judgments entered 18 March 2013 by
Judge Linwood O. Foust in Lincoln County Superior Court. Heard
in the Court of Appeals 4 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.
Ryan McKaig for defendant-appellant.
ERVIN, Judge.
Defendant Michael B. Postell appeals from judgments
sentencing him to terms of imprisonment based upon his
convictions for first degree sex offense, statutory sex offense,
and two counts of taking indecent liberties with a child. On
appeal, Defendant contends that the indictments that had been
returned against him were fatally defective on the grounds that
they failed to adequately inform him of the dates upon which the -2- offenses that he was charged with having committed allegedly
occurred. After careful consideration of Defendant’s challenge
to the trial court’s judgments in light of the record and the
applicable law, we conclude that the trial court’s judgments
should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
In December 2008, Defendant and his father, Tim Postell,
moved into a mobile home that was occupied by D.C.1 and his
mother, Kim G., with whom Mr. Postell was engaged in a romantic
relationship. At that time, Defendant was 21 years old and
Dalton, with whom Defendant shared a room, had just turned
twelve. In December 2009, Kim G., Mr. Postell, Defendant, and
Dalton moved into a larger mobile home, where they lived until
Kim G. and Mr. Postell parted company at the end of June 2010.
Although Dalton, who suffered from a variety of behavioral
difficulties and intellectual limitations, initially enjoyed
having Defendant around, he described Defendant as having become
more aggressive over time. In early 2009, at a time when the
group still lived at the first mobile home, Defendant assaulted
1 D.G. will be referred to throughout the remainder of this opinion as Dalton, a pseudonym used for ease of reading and to protect Dalton’s privacy. -3- Dalton and penetrated him anally. After assaulting Dalton on
this occasion, Defendant threatened to kill Dalton if he ever
told anyone about what Defendant had done. On the day before
Father’s Day in 2010, after the group moved to the second mobile
home, Defendant forced Dalton to the floor, pulled down his
shorts, and inserted his penis into Dalton’s anus.
The relationship between Kim G. and Mr. Postell ended
shortly after the second assault. After Kim G. died of breast
cancer in December 2010, Dalton went to live with his father,
James C. After Dalton came to live with him, James C. noticed
that Dalton would insert his fingers into his anus and smear
excrement upon himself. When James C. questioned Dalton about
his conduct, Dalton told him about the assaults that Defendant
had committed against him.
James C. reported Dalton’s accusations to the Lincoln
County Sheriff’s Department. On 27 January 2011, Detective Seth
Bailey of the Lincoln County Sheriff’s Department interviewed
Defendant, who denied Dalton’s accusations. After a subsequent
interview conducted by Special Agent Amanda Nosalek of the State
Bureau of Investigation, however, Defendant signed a statement
in which he admitted that, on two occasions, while he was
wrestling with Dalton, the head of his penis had entered
Dalton’s anus. -4- 2. Defendant’s Evidence
Defendant denied having assaulted Dalton on any occasion.
In addition, Mr. Postell testified that Defendant had not lived
in the first trailer for three months after the Christmas of
2008 and denied that Defendant had ever lived in the second
mobile home at all.
B. Procedural History
On 31 January 2011, warrants for arrest charging Defendant
with two counts of taking indecent liberties with a child and
two counts of first degree sex offense were issued. On 21
February 2011, the Lincoln County grand jury returned bills of
indictment charging Defendant with two counts of taking indecent
liberties with a minor, two counts of first degree kidnapping,
one count of first degree sex offense, and one count of
statutory sexual offense.
The charges against Defendant came on for trial before the
trial court and a jury at the 14 January 2013 criminal session
of the Lincoln County Superior Court. However, the trial court
declared a mistrial on 16 January 2013 on the grounds that,
“after the trial had begun, two jurors had to be excused which
did not leave enough jurors to proceed with the trial.”
trial court and a jury for a second time at the 11 March 2013 -5- criminal session of the Lincoln County Superior Court. At the
conclusion of all the evidence, the trial court dismissed the
first-degree kidnapping charges. On 18 March 2013, the jury
returned verdicts convicting Defendant of two counts of taking
indecent liberties with a minor, one count of first degree sex
offense, and one count of statutory sex offense. At the
conclusion of the ensuing sentencing hearing, the trial court
consolidated Defendant’s first degree sex offense and statutory
sex offense convictions for judgment and entered a judgment
ordering that Defendant be imprisoned for a term of 192 to 240
months. In addition, the trial court entered judgments
sentencing Defendant to consecutive terms of 16 to 20 months
imprisonment based upon his convictions for taking indecent
liberties with a minor, with these sentences to run concurrently
with the sentence imposed upon Defendant based upon his
convictions for first degree sex offense and statutory sex
offense. Defendant noted an appeal to this Court from the trial
court’s judgments.
II. Legal Analysis
In his sole challenge to the trial court’s judgments,
Defendant contends that the trial court lacked jurisdiction to
accept the jury’s verdicts and to enter judgment against him on
the grounds that the indictments that had been returned against -6- him in these cases were fatally defective. More specifically,
Defendant contends that, because “the indictments allege a broad
period of time occurring long before the crimes were reported,
the indictments . . . [are] fatally defective.” We do not find
Defendant’s argument persuasive.
The indictments in this case allege that the offenses for
which Defendant was convicted occurred on “12/15/2008-
11/30/2009” and “6/01/2010-6/30/2010.” According to N.C. Gen.
Stat. § 15A-924(a)(4), an indictment must contain “[a] statement
or cross reference in each count indicating that the offense
charged was committed on, or on or about, a designated date, or
during a designated period of time.”
However, [N.C. Gen. Stat.
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in acc ordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1390 NORTH CAROLINA COURT OF APPEALS Filed: 19 August 2014
STATE OF NORTH CAROLINA
Lincoln County v. Nos. 11 CRS 50314-15
MICHAEL B. POSTELL
Appeal by defendant from judgments entered 18 March 2013 by
Judge Linwood O. Foust in Lincoln County Superior Court. Heard
in the Court of Appeals 4 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.
Ryan McKaig for defendant-appellant.
ERVIN, Judge.
Defendant Michael B. Postell appeals from judgments
sentencing him to terms of imprisonment based upon his
convictions for first degree sex offense, statutory sex offense,
and two counts of taking indecent liberties with a child. On
appeal, Defendant contends that the indictments that had been
returned against him were fatally defective on the grounds that
they failed to adequately inform him of the dates upon which the -2- offenses that he was charged with having committed allegedly
occurred. After careful consideration of Defendant’s challenge
to the trial court’s judgments in light of the record and the
applicable law, we conclude that the trial court’s judgments
should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
In December 2008, Defendant and his father, Tim Postell,
moved into a mobile home that was occupied by D.C.1 and his
mother, Kim G., with whom Mr. Postell was engaged in a romantic
relationship. At that time, Defendant was 21 years old and
Dalton, with whom Defendant shared a room, had just turned
twelve. In December 2009, Kim G., Mr. Postell, Defendant, and
Dalton moved into a larger mobile home, where they lived until
Kim G. and Mr. Postell parted company at the end of June 2010.
Although Dalton, who suffered from a variety of behavioral
difficulties and intellectual limitations, initially enjoyed
having Defendant around, he described Defendant as having become
more aggressive over time. In early 2009, at a time when the
group still lived at the first mobile home, Defendant assaulted
1 D.G. will be referred to throughout the remainder of this opinion as Dalton, a pseudonym used for ease of reading and to protect Dalton’s privacy. -3- Dalton and penetrated him anally. After assaulting Dalton on
this occasion, Defendant threatened to kill Dalton if he ever
told anyone about what Defendant had done. On the day before
Father’s Day in 2010, after the group moved to the second mobile
home, Defendant forced Dalton to the floor, pulled down his
shorts, and inserted his penis into Dalton’s anus.
The relationship between Kim G. and Mr. Postell ended
shortly after the second assault. After Kim G. died of breast
cancer in December 2010, Dalton went to live with his father,
James C. After Dalton came to live with him, James C. noticed
that Dalton would insert his fingers into his anus and smear
excrement upon himself. When James C. questioned Dalton about
his conduct, Dalton told him about the assaults that Defendant
had committed against him.
James C. reported Dalton’s accusations to the Lincoln
County Sheriff’s Department. On 27 January 2011, Detective Seth
Bailey of the Lincoln County Sheriff’s Department interviewed
Defendant, who denied Dalton’s accusations. After a subsequent
interview conducted by Special Agent Amanda Nosalek of the State
Bureau of Investigation, however, Defendant signed a statement
in which he admitted that, on two occasions, while he was
wrestling with Dalton, the head of his penis had entered
Dalton’s anus. -4- 2. Defendant’s Evidence
Defendant denied having assaulted Dalton on any occasion.
In addition, Mr. Postell testified that Defendant had not lived
in the first trailer for three months after the Christmas of
2008 and denied that Defendant had ever lived in the second
mobile home at all.
B. Procedural History
On 31 January 2011, warrants for arrest charging Defendant
with two counts of taking indecent liberties with a child and
two counts of first degree sex offense were issued. On 21
February 2011, the Lincoln County grand jury returned bills of
indictment charging Defendant with two counts of taking indecent
liberties with a minor, two counts of first degree kidnapping,
one count of first degree sex offense, and one count of
statutory sexual offense.
The charges against Defendant came on for trial before the
trial court and a jury at the 14 January 2013 criminal session
of the Lincoln County Superior Court. However, the trial court
declared a mistrial on 16 January 2013 on the grounds that,
“after the trial had begun, two jurors had to be excused which
did not leave enough jurors to proceed with the trial.”
trial court and a jury for a second time at the 11 March 2013 -5- criminal session of the Lincoln County Superior Court. At the
conclusion of all the evidence, the trial court dismissed the
first-degree kidnapping charges. On 18 March 2013, the jury
returned verdicts convicting Defendant of two counts of taking
indecent liberties with a minor, one count of first degree sex
offense, and one count of statutory sex offense. At the
conclusion of the ensuing sentencing hearing, the trial court
consolidated Defendant’s first degree sex offense and statutory
sex offense convictions for judgment and entered a judgment
ordering that Defendant be imprisoned for a term of 192 to 240
months. In addition, the trial court entered judgments
sentencing Defendant to consecutive terms of 16 to 20 months
imprisonment based upon his convictions for taking indecent
liberties with a minor, with these sentences to run concurrently
with the sentence imposed upon Defendant based upon his
convictions for first degree sex offense and statutory sex
offense. Defendant noted an appeal to this Court from the trial
court’s judgments.
II. Legal Analysis
In his sole challenge to the trial court’s judgments,
Defendant contends that the trial court lacked jurisdiction to
accept the jury’s verdicts and to enter judgment against him on
the grounds that the indictments that had been returned against -6- him in these cases were fatally defective. More specifically,
Defendant contends that, because “the indictments allege a broad
period of time occurring long before the crimes were reported,
the indictments . . . [are] fatally defective.” We do not find
Defendant’s argument persuasive.
The indictments in this case allege that the offenses for
which Defendant was convicted occurred on “12/15/2008-
11/30/2009” and “6/01/2010-6/30/2010.” According to N.C. Gen.
Stat. § 15A-924(a)(4), an indictment must contain “[a] statement
or cross reference in each count indicating that the offense
charged was committed on, or on or about, a designated date, or
during a designated period of time.”
However, [N.C. Gen. Stat. § 15A-924(a)(4)] expressly provides that [e]rror as to a date or its omission is not ground for dismissal of the charges or for reversal of a conviction if time was not of the essence with respect to the charge and the error or omission did not mislead the defendant to his prejudice. Also, [n]o judgment upon any indictment . . . shall be stayed or reversed for . . . omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly.
State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991)
(citations and quotation marks omitted). Thus, the fact that an
indictment alleges that the crime charged in that criminal
pleading occurred during an interval of time rather than on a -7- particular date does not, without more, render the indictment in
question fatally defective. The lack of any necessity for the
indictment to allege a specific offense date is particularly
pronounced “[i]n cases of sexual assaults on children,” in which
“temporal specificity requisites diminish.” Everett, 328 N.C.
at 75, 399 S.E.2d at 306. 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.” Id.
In State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, disc.
rev. denied, 320 N.C. 174, 358 S.E.2d 64-65 (1987), the
defendants were charged with having committed several sex-
related offenses against the female defendant’s daughter based
upon indictments that alleged that the offenses with which the
defendants had been charged occurred during a period of time
rather than on a specific date. On appeal, the defendants
argued that the indictments were fatally defective “because
[they] alleged [that] the offenses occurred during a specified
period of time rather than on specific days[.]” Id. at 7, 354
S.E.2d at 531. In rejecting this argument, we held that,
“[s]ince there was no error in the dates alleged, even if time
were of the essence in defendants’ case, the charges would not
be subject to dismissal under [N.C. Gen. Stat. §] 15A-
924(a)(4).” Id. -8- Defendant has not, in this case, contended that the record
is devoid of support for a determination that the offenses for
which he was convicted occurred during the periods alleged in
the indictments that were returned against him, and our review
of the record satisfies us that any such contention would have
been without merit. In addition, Defendant has completely
failed to establish that he was prejudiced in any concrete and
definite way by the fact that the offenses charged in the
indictments that were returned against him occurred during a
specified interval of time rather than on a specific date. Such
highly generalized assertions of prejudice are simply not
sufficient, particularly given that Defendant was able to
advance an alibi-like defense at trial. Although Defendant
contends that the legal principles ordinarily applicable in such
situations should not apply in cases, like this one, in which a
substantial amount of time passed between the date upon which
the offenses that he was charged with committing had allegedly
occurred and the date upon which he was actually charged with
committing those offenses, Defendant has not cited any authority
in support of this assertion, and we know of none. As a result,
Defendant is not entitled to relief from his convictions based
upon the argument advanced in his brief.
III. Conclusion -9- Thus, for the reasons set forth above, Defendant’s sole
challenge to the trial court’s judgments lacks merit. As a
result, the trial court’s judgments should, and hereby do,
remain undisturbed.
NO ERROR.
Judges ROBERT C HUNTER and STEPHENS concur.
Report per Rule 30(e).