STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 00 CRS 52513
ROBERT LEE BILLUPS
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Y. Meacham, for the State.
Thomas S. Hicks, PLLC, for defendant-appellant.
EAGLES, Chief Judge.
On 9 November 2000, a jury found defendant guilty of taking
indecent liberties with a child in violation of N.C.G.S. § 14-
202.1. The Honorable Ernest B. Fullwood sentenced defendant to 21
to 26 months incarceration. Defendant appeals.
On 24 March 2000, Woodrow L. (Woodrow) and his eight year old
daughter (M.L.), took Woodrow's father to the doctor's office for
a checkup. After checking in at the reception desk, the three were
directed to wait in the waiting room. While waiting, M.L. played
at the play center that was located in the waiting room. M.L. also
played “hangman” with several other patients who were waiting.
After approximately one hour and fifteen minutes, Woodrow and hisfather were called to see the doctor. Woodrow left M.L. to play in
the waiting room.
As M.L. was playing, she noticed defendant standing at the
reception desk. She approached defendant and said “[h]i.”
Defendant also said “[h]i.” Defendant then asked M.L. how old she
was and then the two talked about a carved apple that was sitting
on the reception desk. Defendant told M.L. that she was pretty.
M.L. then went back to play at the play center.
After defendant sat down in the waiting room, M.L. sat down
next to him with a pencil and paper. She asked defendant his name
and then she told defendant her name. Defendant replied, “[t]hat
is a nice name.” M.L. then started to ask if defendant wanted to
play “hangman” but defendant interrupted and asked M.L. if she
liked boys. Before she could answer, defendant said, “[c]ome on,
tell the truth.” M.L. replied that she did. M.L. then explained
to defendant that she was with her father and grandfather who were
in the back with the doctor. She then got up from her seat to get
a magazine. When M.L. returned to her seat, defendant rubbed his
unexposed “private part” on the outside of his clothes and asked
M.L., “[d]o you like that? Do you like to see me rubbing?” M.L.
got up and walked away because she perceived defendant was doing
something wrong. She went to the reception desk to tell the
receptionist what had happened but because the receptionist was on
the telephone, M.L. chose not to interrupt and instead, went into
another waiting room. Shortly thereafter, Woodrow decided to check on M.L. He found
her in the other waiting room. Woodrow told M.L. that she was not
where she was supposed to be. M.L. replied, “Dad, there is a
strange man here. I need to talk to you in private.” Woodrow took
M.L. back to the examining room. He inquired about M.L.'s “strange
man” comment. M.L. then told her father that she was sitting with
defendant and that defendant had put his hands on his private
parts, started rubbing, and then said, “[d]o you like watching me
do this?” After hearing this, Woodrow told Nurse Naomi Kilpatrick
what had occurred. M.L. retold her story to Nurse Kilpatrick.
After hearing M.L.'s story, Nurse Kilpatrick called the manager,
Sheila Hollowell. After informing Ms. Hollowell about what had
happened, Woodrow called the police.
Officer Royce Testa of the Wilmington Police Department
responded. Upon arrival, he first talked to M.L. and Woodrow.
M.L. explained that while she was sitting next to defendant,
defendant started touching his private area. At this point, a
nurse informed Officer Testa that defendant was about to leave the
office. Officer Testa went into the waiting area and saw defendant
standing up. Defendant fit M.L.'s description. Officer Testa
approached defendant and asked defendant to come back into an
examining room. The nurses directed defendant and Officer Testa
into a doctor's office. After entering the office, defendant asked
Officer Testa why Officer Testa needed to talk. Officer Testa
asked defendant to sit down and then asked, “[w]ere you sitting
next to a young lady out in the waiting area?” Defendant's replyindicated that he was. Officer Testa then asked defendant what the
two were talking about. Defendant said that the two talked about
an apple on the reception desk and that they merely had a general
conversation. Officer Testa then asked defendant if the two
discussed anything else. After a pause defendant asked, “[w]hat do
you mean, something sexual?”
After asking defendant these few questions, Officer Testa
asked M.L. to come to the door to the office. Officer Testa asked
M.L., “[t]his man behind me, he is not the man that touched you, is
he?” M.L. looked confused after hearing Officer Testa's question
but replied, “[y]es, that's the man that was sitting next to me.”
Defendant then asked if he was under arrest. Officer Testa
responded, “[y]es, sir, you are under arrest.” Officer Testa then
handcuffed defendant and told defendant that he did not have to
answer any further questions.
On appeal, defendant contends: (1) the trial court erred by
denying defendant's motion to dismiss the charge of taking indecent
liberties with a minor at the end of the State's evidence and at
the end of all of the evidence and (2) the trial court committed
plain error by failing to exclude from evidence defendant's
statements made while in the custody of a law enforcement officer
without having been read his Miranda rights. For the following
reasons, we disagree and find no error.
Defendant first contends that the trial court erred by failing
to dismiss the indecent liberties charge. Defendant argues thatthe State presented insufficient evidence to show that defendant's
activity amounted to taking indecent liberties with a child.
At trial, the State was required to prove:
(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.G.S. § 14-202.1. The term “indecent liberties” has been
defined as “'such liberties as the common sense of society would
regard as indecent and improper.'” State v. McClees, 108 N.C. App.
648, 653, 424 S.E.2d 687, 690 (1993) (citation omitted).
“We note first that it is not necessary that defendant touch
his victim to commit an immoral, improper, or indecent liberty
within the meaning of the statute.” State v. Etheridge, 319 N.C.
34, 49, 352 S.E.2d 673, 682 (1987). In his brief, defendant
concedes that actually touching the victim is not required for
commission of taking indecent liberties and that masturbation in
the presence of a child could constitute a crime under the statute.
See State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574 (1981).
Defendant argues, however, that the alleged “rubbing” in this case
did not constitute masturbation and that the act was so brief and
insubstantial that it could not rise to the level of taking
indecent liberties. Whether defendant's action constituted masturbation is not
dispositive as to the issue of whether defendant took indecent
liberties with M.L. In Ethridge, our Supreme Court stated:
[A] variety of acts may be considered indecent
and may be performed to provide sexual
gratification to the actor. Indeed, the
legislature enacted section 14-202.1 to
encompass more types of deviant behavior,
giving children broader protection than
available under other statutes proscribing
sexual acts.
Etheridge, 319 N.C. at 49, 352 S.E.2d at 682.
Here, the State's evidence showed that after defendant learned
that M.L. was unsupervised, defendant rubbed his crotch with his
hand and, while doing so, asked M.L., “[d]o you like that? Do you
like to watch me rubbing?” From this evidence, we conclude that
defendant's conduct was sufficient to permit the jury to find that
defendant took indecent liberties with M.L. for the purpose of
arousing or gratifying sexual desire.
Defendant also argues that the State failed to present
evidence indicating that defendant acted with the requisite intent.
In State v. Creech, 128 N.C. App. 592, 598, 495 S.E.2d 752, 756
(1998), this Court stated:
The crime of taking indecent liberties with a
minor is a specific intent crime. State v.
Craven, 312 N.C. 580, 584, 324 S.E.2d 599, 602
(1985). A specific intent crime requires the
State to prove that defendant “acted willfully
or with purpose in committing the offense.”
State v. Eastman, 113 N.C. App. 347, 353, 438
S.E.2d 460, 463 (1994). However, a
defendant's purpose in committing the act in
an indecent liberties case is “'seldom
provable by direct evidence and must
ordinarily be proven by inference.'” State v.
Jones, 89 N.C. App. 584, 598, 367 S.E.2d 139,147 (1988) (quoting State v. Campbell, 51 N.C.
App. 418, 421, 276 S.E.2d 726, 729 (1981)).
State v. Creech, 128 N.C. App. 592, 598-99, 495 S.E.2d 752, 756
(1998).
Here, there was sufficient evidence from which the jury could
find that defendant rubbed his genital area while sitting next to
M.L. for the purpose of arousing or gratifying sexual desire.
Defendant's intent can be inferred from defendant's actions, his
comments, and the context in which the actions and comments
occurred. After careful review of the record, transcript, and
contentions of the parties, we hold that the State presented
sufficient evidence of defendant's specific intent to survive
defendant's motion to dismiss.
As defendant's remaining assignment of error, defendant
contends that the trial court committed plain error by admitting
into evidence statements that defendant made to Officer Testa
during Officer Testa's investigation at the doctor's office.
At trial, Officer Testa testified in pertinent part about his
investigation:
[TESTA]: I went out in the waiting area. I
saw Mr. Billups standing up . . . . I asked
Mr. Billups to come back into the examining
room with me . . . . The nurses directed us
to, I believe it was Doctor Myer's office . .
. .
[PROSECUTOR]: And when you asked the
defendant to come back in that area with you,
was he in custody at that time?
[TESTA]: No, ma'am. He was cooperative. He
went back with me.
[PROSECUTOR]: Okay. And then what happened
when you went with him into Doctor Myer's
office. [TESTA]: Mr. Billups wanted to know why I
wanted to talk to him. I asked him to have a
seat and I said, “Were you sitting next to a
young lady out in the waiting area?” He told
me that he was, and I asked him what they were
talking about. He said that a little girl
came and sat beside him, they were talking
about an apple on the reception desk . . . .
I asked him if he said--if they talked about
anything else. At that point, there was a
little pause and [defendant] said, he asked
me, “What do you mean, something sexual?” and
he sort of spread his hands (demonstrating).
“In criminal cases, a question which was not preserved by
objection noted at trial and which is not deemed preserved by rule
or law without any such action, nevertheless may be made the basis
of an assignment of error where the judicial action questioned is
specifically and distinctly contended to amount to plain error.”
N.C. R. App. P. 10(c)(4). “The plain error doctrine applies only
in truly exceptional cases, placing a much heavier burden on the
defendant than the burden imposed by N.C.G.S. § 15A-1443, which
applies to defendants who have preserved their rights by timely
objection.” State v. Allen, 141 N.C. App. 610, 617, 541 S.E.2d
490, 495 (2000). To prevail under the plain error doctrine, a
defendant must convince this Court, “with support from the record,
that the claimed error is so fundamental, so basic, so prejudicial,
or so lacking in its elements that absent the error the jury
probably would have reached a different verdict.” Id., 541 S.E.2d
at 496.
Even assuming error, on this record, defendant cannot show
that a different result would have probably been reached by the
jury if defendant's statements had been omitted from evidence bythe trial judge. The State adduced compelling evidence of
defendant's sexual intent. M.L.'s testimony about defendant's
conduct was clear and detailed. In addition, M.L.'s testimony was
corroborated by four adult witnesses who spoke with M.L.
immediately following the incident. When viewed in the context of
the trial, the admission of the statements made by defendant during
Officer Testa's investigation was not so prejudicial as to satisfy
the plain error standard. Accordingly, this assignment of error
also fails.
For the foregoing reasons, we conclude that defendant's trial
was free from error.
No error.
Judges McGEE and TYSON concur.
Report per Rule 30(e).
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