Criminal Practice – Indecent Liberties – Witness Competency – 4-Year-Old Victim

State v. Carter. (Lawyers Weekly No. 11-07-0220, 19 pp.) (John C. Martin, Ch.J.) Appealed from Randolph County Superior Court. (V. Bradford Long, J.) N.C. App. Click here for the full text of the opinion.

Holding: Even if, as defendant contends, 4-year-old witness H.S. was nonresponsive and gave contradictory responses to some of the questions asked when she testified in front of the jury, the contradictions and non-responsiveness may have been an appropriate subject for cross-examination of a jury argument, but they in no way altered H.S.’s competence as a witness.

We find no effort in defendant’s conviction of taking indecent liberties with two children.

Testimony from H.S. and her mother indicated that H.S. reported being touched in her genital and rectal area at Gladys Carter’s house by a male, and H.S.’s mother testified that she had found H.S. alone with defendant on several occasions at Ms. Carter’s house. The state’s evidence established a reasonable inference of defendant’s guilt of the crime of taking indecent liberties with H.S. Accordingly, the trial court did not err by denying defendant’s motion to dismiss.

Finally, the language used by the state in the indictment to charge defendant with violating G.S. § 14-202.1 strictly adhered to the language of the statute. Consequently, the state was not required to allege an evidentiary basis for the charged offense.

Additionally, the trial judge’s instruction regarding what constitutes an indecent liberty in this case was not derived from the statute, but was rather a clarification of the evidence presented for the jury’s benefit. Therefore, the trial court’s instruction to the jury providing an evidentiary basis for the charge of indecent liberties with the specific act of “placing [defendant’s] penis between the feet of [victim B.R.]” did not vary from the indictment and does not require a reversal of defendant’s conviction on this charge.