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noting that the elements of “Indecent Liberties” may be met by showing that defendant's conduct was “ ‘lacking moral discipline or sexual restraint’ or ‘having no regard for accepted rules or standards' ”
Summary of this case from Anderson v. StateOpinion
No. COA05-1109
Filed 21 March 2006 This case not for publication
Appeal by Defendant from judgment entered 17 November 2004 by Judge Clarence E. Horton, Jr. in Superior Court, Cabarrus County. Heard in the Court of Appeals 6 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State. James R. Parish, for defendant-appellant.
Cabarrus County No. 03 CRS 2175-77.
The crime of taking indecent liberties with children requires proof of several elements including, inter alia, showing that defendant willfully committed or attempted to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child. N.C. Gen. Stat. § 14-202.1(a)(2) (2005). In this case, Defendant argues that there was insufficient evidence of this element on two of the three charges against him. Because the evidence in the light most favorable to the State shows that Defendant grabbed a child, kissed all over her face, and attempted to kiss her lips, we hold that Defendant received a trial free of prejudicial error.
The State presented evidence tending to show that in October 2002, a child (born on 18 November 1988), was visiting her cousins and aunt when Defendant, her aunt's male companion, grabbed her and kissed her face, and moved toward her lips. The child pushed Defendant away. On the day before Thanksgiving 2002, while the child again visited her aunt, she fell asleep on a couch but was awakened by Defendant, who kissed her again all over her face. Defendant tried to kiss her lips but she pulled a blanket over her head and turned away. Defendant returned to his seat and she fell asleep again but was awakened again by Defendant, who was touching her breast. Defendant turned and went into the kitchen. She told one of her cousins about the incidents a few days later. She did not know Defendant's age but she knew Defendant had a son who was sixteen or seventeen years old at the time of trial.
Defendant testified and denied kissing or inappropriately touching the child. The child's aunt testified that she could see into the living room while she was cooking in the kitchen and that she did not see Defendant kiss or touch the child on the day before Thanksgiving 2002.
Defendant was found guilty of three counts of taking indecent liberties with a child. He was sentenced to an active term of imprisonment for a minimum of thirteen months and a maximum of sixteen months. He was also sentenced to a suspended term of sixteen to twenty months.
On appeal, Defendant argues that: (1) the trial court committed plain error in admitting a videotape of an interview with the child into evidence; (2) the trial court erred in failing to dismiss the charges; and (3) this Court should arrest judgment in either 03 CRS 2176 or 2177 because the indictments charge Defendant with alternative acts performed in a single transaction.
Defendant first contends the court committed plain error by permitting the showing of a videotaped interview between the child and a nurse employed by the Child Advocacy Center. He argues the videotape was not properly authenticated.
Under the plain error standard of review, a defendant "is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). We conclude such fundamental error was not committed. The authentication necessary to permit admission of a document or exhibit "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." N.C. Gen. Stat. § 8C-1, Rule 901(a) (2005). Testimony by a witness with knowledge that "a matter is what it is claimed to be" is an example of authentication or identification which conforms with this rule. N.C. Gen. Stat. § 8C-1, Rule 901(b). Here, the witness testified that she was in possession of the original videotape, that she was present when the tape was made, that the tape was secured in a room in the Child Advocacy Center, and that the tape was not altered. Her testimony sufficed to establish the requisite authentication.
Defendant next contends that the court erred by denying his motion to dismiss the charges on the ground of insufficient evidence. We disagree.
A motion to dismiss is properly denied if substantial evidence is presented to establish every element of the charged offense and to identify the defendant as the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002). The evidence must be examined in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The uncorroborated testimony of a child is sufficient to withstand a motion to dismiss a charge of taking indecent liberties if the child's testimony identifies the defendant as the perpetrator and establishes the requisite elements of the offense. State v. Craven, 312 N.C. 580, 590, 324 S.E.2d 599, 605 (1985).
The crime of taking indecent liberties with children is statutorily defined as follows:
(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen. Stat. § 14-202.1(a). "The general rule is that a defendant must be convicted, if he is convicted at all, of the particular offense with which he was charged in the bill of indictment." State v. Wilson, 87 N.C. App. 399, 401, 361 S.E.2d 105, 107 (1987), disc. review denied, 321 N.C. 479, 364 S.E.2d 670 (1988). The indictments in this case charge that on three occasions Defendant, in violation of section 14-202.1(a)(2) of the North Carolina General Statutes, "did commit and attempt to commit a lewd and lascivious act upon the body of [the child], who was under the age of sixteen (16) years at the time." Thus, to withstand the motion to dismiss, the State had to present substantial evidence that Defendant committed or attempted to commit a lewd and lascivious act upon the body of the child who was under the age of sixteen at the time. Defendant contends the evidence is insufficient to show Defendant committed a lewd or lascivious act.
The words "lewd" and "lascivious" are considered ordinary words of the English language which jurors are presumed to understand. State v. Stell, 39 N.C. App. 75, 76, 249 S.E.2d 480, 481 (1978). In the absence of a statutory definition, this Court has in the past quoted dictionary definitions of the terms. See State v. Manley, 95 N.C. App. 213, 217, 381 S.E.2d 900, 902, disc. review denied, 325 N.C. 712, 388 S.E.2d 467 (1989); Wilson, 87 N.C. App. at 402, 361 S.E.2d at 108. We note that the word "lewd" is defined by the American Heritage Dictionary of the English Language (1981) as "licentious; lustful" and the word "lascivious" is defined as "of or characterized by lust; lewd; lecherous" or "exciting sexual desires." The word "licentious" is further defined as "lacking moral discipline or sexual restraint" or "having no regard for accepted rules or standards."
Viewed in the light most favorable to the State, the evidence shows that in the October 2002 incident Defendant, who was more than five years older than the child, grabbed the child, kissed her face multiple times, and moved to kiss her lips. In the November 2002 incidents, he repeatedly kissed her face, and attempted to kiss her lips. Based upon this evidence, a jury could reasonably find Defendant's behavior was lustful, lecherous, "lacking moral discipline or sexual restraint" or lacking "regard for accepted rules or standards." Indeed, one could state that "defendant's behavior was such as the common sense of society would regard as indecent and improper." State v. McClees, 108 N.C. App. 648, 654, 424 S.E.2d 687, 690, disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993).
Defendant's final contention is that the court erred by failing to arrest judgments on one of the convictions arising out of the November 2002 incident. He argues the acts were performed in one continuous transaction, thereby constituting one single offense. We observe that Defendant did not move at trial to arrest judgment on one of the two charges, and thus he waived appellate review of the issue. State v. Dudley, 319 N.C. 656, 659, 356 S.E.2d 361, 364 (1987). Even if this issue had been preserved for appellate review, we conclude arrest of judgment was not warranted as the evidence shows an intervening event between the initial acts of kissing and the subsequent acts of kissing and touching of the child's breast, as the child fell asleep between the two incidents. See id. at 659, 356 S.E.2d at 363 (holding arrest of judgment was not warranted on one of two counts of raping child A where the defendant engaged in intercourse with child A, then attempted intercourse with child B, and then resumed intercourse with child A).
We hold Defendant received a fair trial, free of prejudicial error.
No error.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).