Appeal by defendant pursuant to G.S. 7A-27(a) from Johnson, J., at the 15 June 1981 Criminal Session of Mecklenburg County Superior Court.
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:
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 ...