State v. Edwards

289 S.E.2d 360 (1982)

STATE of North Carolina, v. James Rodney EDWARDS.

No. 156A81.

Supreme Court of North Carolina.

March 30, 1982.

*361 Rufus L. Edmisten, Atty. Gen. by Evelyn M. Coman, Associate Atty. Gen., Raleigh, for the State.

Fritz Y. Mercer, Jr., Public Defender, Charlotte, for defendant.

BRANCH, Chief Justice.

Defendant first assigns as error the trial court's failure to grant his motion to quash the indictment. He contends that the indictment was defective in that it did not allege that he committed a "sexual act" with the victim. He argues that since a "sexual act" is an essential element of first-degree sexual offense it must be alleged in the bill of indictment.

Defendant was tried under G.S. 14-27.4(a)(1), which states that:

(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act: (1) With a victim who is a child of the age of 12 years or less and the defendant is of the age of 12 years or more and is four or more years older than the victim.

The indictment in instant case reads as follows:

*362 THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 31st day of October, 1980, in Mecklenburg County, James Rodney Edwards, did unlawfully, wilfully and feloniously commit a sexual offense with Diana Lynn Austin, a child 11 years 10 months old and thus of the age of 12 years or less.

G.S. 15-144.2(b) provides the approved "short form" essentials of a bill for sex offense, to-wit:

If the victim is a person of the age of 12 years or less, it is sufficient to allege that the defendant unlawfully, willfully, and feloniously did engage in a sex offense with a child of 12 years or less, naming the child, and concluding as aforesaid. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for a sex offense against a child of the age of 12 years or less and all lesser included offenses.

While it is essential that the State prove a "sexual act" as defined by G.S. 14-27.1(4) in order to convict a defendant under G.S. 14-27.4, an indictment which is drafted pursuant to the provisions of G.S. 15-144.2(b) without specifying which "sexual act" was committed is sufficient to charge the crime of first-degree sexual offense and to inform a defendant of such accusation. See State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980). If a defendant wishes additional information in the nature of the specific "sexual act" with which he stands charged, he may move for a bill of particulars. State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978).

The indictment in instant case complies with the statutory language of G.S. 15-144.2(b).

Defendant next assigns as error the action of the trial judge in limiting his cross-examination of the prosecuting witness.

A hearing was conducted in the absence of the jury to determine the admissibility of certain questions which defense counsel proposed to ask on cross-examination of the prosecuting witness. At that hearing, defense counsel questioned the prosecutrix about four separate accusations she had made against other men concerning sexual advances. She denied making three of the accusations but admitted one incident in which a man made a sexual advance toward her in or near a neighborhood store. In connection with the admitted incident at the neighborhood store, she testified that defendant told her that when he made inquiry at the store, the owner said that he would never let it happen again.

At the hearing, defense counsel stated that he would not call the store keeper, but that defendant would testify that he asked the store keeper about the accusation and was told that such an incident never took place.

The trial judge ruled that he would permit cross-examination of the prosecuting witness as to all the incidents except the one at the neighborhood store. He based the exclusion of this evidence on the hearsay rule.

"Evidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it." 1 Stansbury's N.C. Evidence § 138 (Brandis rev. 1973) and cases there cited.

In instant case, we are of the opinion that the trial judge should have permitted defense counsel to cross-examine the prosecuting witness as to the neighborhood store incident. The hearsay rule did not apply to the question to be asked her since this was a matter that was within her own knowledge and the probative force of her testimony did not depend upon the competency or credibility of any other person.

We turn to the question of whether the erroneous ruling constituted prejudicial error.

The trial judge has wide discretion in controlling the scope of cross-examination. He sees and hears the witnesses, knows the background of the case, and is in a favorable *363 position to control the proper bounds of cross-examination. Since the limit of legitimate cross-examination is a matter largely within the trial judge's discretion, his rulings thereon will not be held to be prejudicial error in absence of a showing that the verdict was improperly influenced by the ruling. State v. Britt, 291 N.C. 528, 231 S.E.2d 644 (1977). See also State v. Lindley, 23 N.C.App. 48, 208 S.E.2d 203, aff'd. 286 N.C. 255, 210 S.E.2d 207 (1974). Further, when an erroneous ruling is made excluding cross-examination testimony and evidence of like import is thereafter admitted, any error resulting from the ruling becomes harmless. State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978).

In instant case, defendant would have been hard pressed to have contradicted the testimony of the prosecuting witness since under the facts of this case defendant's testimony as to statements made by the store keeper would have been clearly barred by the hearsay rule. Additionally, the trial judge permitted cross-examination concerning three other similar incidents. The very evidence upon which this assignment of error is based was placed before the jury by the prosecuting witness's mother, who testified before the jury that her daughter made an accusation of sexual advances against someone at or near a local store, and when defendant made inquiry at the store, he was told that the person accused had not even been there.

For reasons stated, we hold that the erroneous ruling in not permitting cross-examination of the prosecuting witness as to the neighborhood store incident did not amount to prejudicial error so as to improperly influence the jury's verdict.

Our careful examination of this entire record reveals no error warranting that the verdict or the judgment be disturbed.

NO ERROR.