Opinion
NO. COA12-389
01-15-2013
STATE OF NORTH CAROLINA v. DAVID GENE CARLE
Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State. Russell J. Hollers III for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Catawba County
No. 10 CRS 1108
Appeal by defendant from judgment entered 2 November 2011 by Judge Robert T. Sumner in Catawba County Superior Court. Heard in the Court of Appeals 26 September 2012.
Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.
Russell J. Hollers III for defendant-appellant.
BRYANT, Judge.
Where there was evidence that defendant's conduct was for the purpose of arousing or gratifying sexual desire, the trial court did not err in its denial of defendant's motion to dismiss the charge of taking indecent liberties with a child.
Facts and Procedural History
Defendant was indicted on 19 January 2010 for indecent liberties with a child pursuant to section 14-202.1 of the North Carolina General Statutes. Following trial on 31 October 2011, a jury found defendant guilty of indecent liberties with a child. On 2 November 2011, defendant was sentenced to a term of twenty to twenty-four months imprisonment. The trial court also ordered that defendant, upon release from imprisonment, register as a sex offender and enroll in satellite-based monitoring for the rest of his natural life.
From the 2 November 2011 judgment and order, defendant appeals.
Defendant's sole argument on appeal is whether the trial court erred by denying his motion to dismiss where the evidence failed to show his acts were for the purpose of arousing or gratifying sexual desire.
"Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). "The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom . . . ." State v. Carter, ___ N.C. App. ___, ___, 707 S.E.2d 700, 706 (2011) (citation omitted).
Pursuant to section 14-202.1 of the North Carolina General Statutes,
[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 . . . (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[.]N.C. Gen. Stat. § 14-202.1 (2011). The elements of indecent liberties with a child are:
(1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.State v. Martin, 195 N.C. App. 43, 50, 671 S.E.2d 53, 59 (2009) (citation omitted).
"Defendant's purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial." State v. Every, 157 N.C. App. 200, 205-06, 578 S.E.2d 642, 647 (2003) (citation omitted). Further, "this court has recognized that no actual touching of a child is necessary to complete the offense described in G.S. 14-202.1." State v. Hicks, 79 N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986) (citations omitted).
Defendant argues that the fifth element, "for the purpose of arousing or gratifying sexual desire," was not supported by substantial evidence. As support for his argument, defendant directs us to State v. Stanford, 169 N.C. App. 214, 609 S.E.2d 468 (2005) (evidence was insufficient to support an indecent liberty conviction where the defendant was babysitting his niece and "his hand very briefly brushed his niece's breast, over her clothing." The defendant's actions were determined not to be for the purpose of arousing sexual desire but rather "nothing more than an accidental encounter."); State v. Brown, 162 N.C. App. 333, 590 S.E.2d 433 (2004) (evidence of defendant's inappropriate comments to a thirteen year-old regarding her physical appearance, how he would like to see her, and his feelings for her was insufficient to show they made were for the purpose of arousing or gratifying sexual desire as "the conversations were neither sexually graphic and explicit nor were they accompanied by other actions tending to show defendant's purpose was sexually motivated."); and State v. Shue, 163 N.C. App. 58, 592 S.E.2d 233 (2004) (evidence was insufficient to show the purpose of the defendant's acts were for arousing or gratifying sexual desire where after an eight year old boy asked the defendant to help him lock the stall in a public bathroom, the defendant entered the stall with the boy, locked the door, and attempted to grab his arm. The defendant left the stall when the boy jerked his arm away.). Specifically, defendant contends that although the present case is not identical to these cases, the evidence indicates no more than a suspicion or conjecture that defendant's actions were for the purpose of arousing or gratifying sexual desire. We disagree.
"A defendant's purpose, being a mental attitude, is seldom provable by direct evidence and must ordinarily be proven by inference. Indeed, whether 'the action was for the purpose of arousing or gratifying sexual desire, may be inferred from the evidence of the defendant's actions." Every, 157 N.C. App. at 209, 578 S.E.2d at 649 (citations omitted).
"[T]he legislative policy, inherent in the [indecent liberties] statute, [is] to provide broad protection to children from the sexual conduct of older persons, especially adults." Hicks, 79 N.C. App. at 603, 339 S.E.2d at 809 (citation omitted). See Every, 157 N.C. App. at 205, 578 S.E.2d at 647 ("'Indecent liberties' are defined as 'such liberties as the common sense of society would regard as indecent and improper.'" (citation omitted)).
The evidence at trial tended to show the following: In 2008, Carter was in the fourth grade and approximately seven years old. Defendant David Gene Carle and Carter's mother met at work and developed a friendship. Carter's mother testified that she and defendant discussed defendant becoming Carter's "big brother." Defendant and Carter would spend time together which included activities such as going to the YMCA and Carter spending the night at defendant's residence.
Pseudonyms have been used throughout to protect the identity of the juvenile.
Carter testified that while he was using the bathroom at defendant's residence, defendant came in and said, "I wanted to show you something." Defendant proceeded to pull down his pants and told Carter to "look." Defendant touched the piercing on his genitals and told Carter, "[i]t hurts when you have piercings." Carter testified that he looked at defendant's penis "for a second and . . . turned my head" after seeing silver piercings. Defendant then told Carter, "[d]on't tell anybody" and Carter left the bathroom.
Viewing the evidence in the light most favorable to the State, defendant's encounter with Carter was not accidental. Rather, defendant knowingly entered the bathroom Carter was using and purposefully pulled down his pants and exposed his penis to Carter. Exposing his penis to Carter, touching his piercing, and telling Carter to look at the piercings on his penis cannot be classified as anything less than sexually graphic in nature and explicit. See Hicks, 79 N.C. App. at 604, 339 S.E.2d at 809 (holding that the defendant's actions, of exposing himself and placing his hand on his penis while in close proximity to a child, fell within the purview of the indecent liberties statute). Defendant's actions, coupled with his warning to seven year old Carter that he not "tell anybody[,]" are sufficient to allow a jury to determine that the nature of defendant's encounter with Carter was for the purpose of arousing or gratifying sexual desire. Accordingly, we conclude that defendant's conduct fell within the purview of the statute and hold that the trial court did not err in denying defendant's motion to dismiss.
No error.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).