State v. Darr, 2022-NCCOA-296, ___ N.C. App. ___ (May. 3, 2022)

In this Randolph County case, the defendant appealed from his conviction for statutory rape, arguing that the trial court erred in (1) denying his motion to suppress evidence from his interrogation because he requested and did not receive counsel, and (2) denying his motion to dismiss because the dates alleged in the indictment varied from the victim’s testimony.

(1) The defendant came to the sheriff’s office for questioning at a detective’s request. Detectives told him about the victim’s allegations that they had vaginal intercourse over a two-year period beginning in 2016, when the victim was 14 and the defendant was 33. After the detectives played a recording of the defendant speaking to the victim, the defendant admitted he had engaged in vaginal intercourse with the victim multiple times in 2017 and 2018. A detective subsequently told the defendant he was under arrest and read the defendant Miranda rights. The defendant said, “I’ll talk to you but I want a lawyer with it and I don’t have the money for one.” The detectives asked additional questions about whether the defendant wanted to speak without a lawyer present. One detective told the defendant that speaking with the detectives “can’t hurt.” This exchange culminated in the defendant signing a waiver of his right to counsel and continuing to speak with the detectives.

The defendant moved to suppress any statements from the interrogation. The trial court denied the motion. The Court of Appeals found no error, concluding that the defendant was not in custody when he initially confessed and that a reasonable police officer would not have understood the defendant’s statement after he was arrested as an unambiguous request for counsel during interrogation. The Court determined that the trial court’s findings were supported by competent evidence that defendant’s request for counsel was ambiguous and the detectives’ statements were an attempt to clarify the defendant’s statements.

(2) The date of the vaginal intercourse listed on the indictment was 2017, but the victim testified at trial that the intercourse occurred in 2016. The defendant moved to dismiss based on this variance. The trial court denied the motion and the Court of Appeals found no error. The Court reasoned that the date given in an indictment for statutory rape is not an essential element of the crime, and noted that courts are lenient concerning dates in cases involving the sexual abuse of minors. The Court concluded that the victim’s testimony alleging vaginal intercourse in 2016 between her and Defendant—when she was 14 and the defendant was 19 years her elder—was sufficient to survive a motion to dismiss.

Judge Arrowood concurred in the result, but wrote separately to opine that once the defendant stated that he wanted a lawyer, the custodial interrogation should have ceased. Nevertheless, given that defendant’s initial confession was made voluntarily and prior to custodial interrogation, Judge Arrowood would have found the trial court’s denial of the suppression motion to be harmless error.