Sexual Offenses--taking or attempting to take indecent liberties with a child--motion to
dismiss--sufficiency of evidence
The trial court erred by denying defendant's motion to dismiss the charges of taking or
attempting to take indecent liberties with a child, because: (1) the conversations between
defendant and the victim were neither sexually graphic and explicit nor were they accompanied
by other actions tending to show defendant's purpose was sexually motivated; (2) nothing in the
record indicated defendant's actions emanated from a desire or purpose to arouse or gratify
sexual desire; and (3) the scope of taking indecent liberties has never encompassed innuendo and
intimation unaccompanied by other indicia of defendant's motivation.
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
Samuel L. Bridges, for defendant-appellant.
CALABRIA, Judge.
Robert L. Brown (“defendant”) appeals from a judgment entered
in Lee County Superior Court upon a jury verdict finding him guilty
of taking or attempting to take indecent liberties with a child.
(See footnote 1)
We find the evidence insufficient to show defendant took or
attempted to take indecent liberties and reverse.
On 20 February 2001, a thirteen-year-old child (“V.V.”) was
signed into the Hillcrest Youth Shelter (the “shelter”) by hermother due to family discord and conflict in the home. During the
intake, her mother agreed to accept aftercare services and signed
a consent form allowing someone from the shelter to come to the
house or call after V.V.'s discharge. Defendant, who was in his
late forties, was the shelter's aftercare coordinator when V.V. was
admitted. Defendant was responsible for meeting with families and
establishing relationships with them in order to provide services
for children and their families after the children were discharged
from the shelter. V.V. remained at the shelter for approximately
thirty days. By the time V.V. was discharged, defendant had moved
to a new job position: program assistant. As program assistant,
defendant was no longer responsible for making home visits or
contacts outside the shelter; however, it was not a violation of
his job description to contact children who had been released from
the program.
Since no other person had been designated to provide post-
discharge services for V.V., defendant continued to contact V.V. by
phone and personally visited V.V. on one occasion. Frequently,
defendant indicated he would like to take V.V. out to eat or spend
time with her. V.V. testified that, while defendant stated he
wanted to kiss her on one occasion, he never attempted to do so.
Eventually, V.V. became uncomfortable talking to defendant. Around
10 June 2001, V.V. followed the advice of her foster mother and
taped a conversation between her and defendant. The taped
conversation revealed a number of inappropriate comments by
defendant including comments on how she looked, comments indicatinghe would like to see her, and comments concerning his feelings
towards her and how he perceived her feelings towards him.
V.V. turned over the recording of defendant's conversation
with her to the Lee County Sheriff's Department. The director of
the shelter listened to the taped conversation, notified defendant
of the conversation, and discharged him from the shelter. The
State charged defendant with taking indecent liberties with a child
in violation of N.C. Gen. Stat. § 14-202.1(a)(1).
At the close of the State's case, defendant moved to dismiss
the charge of taking indecent liberties with a child. The trial
court denied defendant's motion. Defendant offered no evidence and
renewed the motion to dismiss, which the trial court again denied.
The jury convicted defendant of taking or attempting to take
indecent liberties with a child. Since defendant had no prior
criminal record, the court sentenced defendant to a minimum term of
twenty months and a maximum term of twenty-four months. The court
suspended the sentence and placed defendant on supervised probation
for thirty months. As a special condition of his probation,
defendant was to serve 120 days as an active term. Defendant
appeals, asserting the trial court erred in (I) failing to grant
his motion to dismiss; (II) failing to give his requested special
instructions regarding attempt; and (III) allowing the introduction
of Rule 404(b) evidence by the State. Because we find the trial
court should have granted defendant's motion to dismiss at the
close of the evidence, we do not reach defendant's second and third
assignments of error. Defendant asserts the trial court erred by denying his motion
to dismiss because the State failed to present sufficient evidence
that he took indecent liberties with a child. “A motion to dismiss
on the ground of sufficiency of the evidence raises . . . the issue
'whether there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator of
the offense.'” State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108,
131 (2002), cert. denied, __ U.S. __, 155 L. Ed. 2d 1074 (2003)
(quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925
(1996)). “The existence of substantial evidence is a question of
law for the trial court, which must determine whether there is
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.” Id. (citing State v. Vause, 328 N.C.
231, 236, 400 S.E.2d 57, 61 (1991)). “'The court must consider the
evidence in the light most favorable to the State and give the
State the benefit of every reasonable inference from that
evidence.'” Id. (citation omitted). “If, however, when the
evidence is so considered it is sufficient only to raise a
suspicion or conjecture as to either the commission of the offense
or the identity of the defendant as the perpetrator, the motion to
dismiss must be allowed.” State v. Malloy, 309 N.C. 176, 179, 305
S.E.2d 718, 720 (1983).
North Carolina General Statutes § 14-202.1 (2003) provides, in
part, 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 withany child of either sex under the age of 16
years for the purpose of arousing or
gratifying sexual desire . . . .
Where a defendant moves to dismiss charges brought under N.C. Gen.
Stat. § 14-202.1(a)(1), the State must present substantial evidence
of the following elements:
(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. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987).
We find the State's evidence regarding the final element,
defendant's purpose, insufficient to support the offense charged.
The evil the legislature sought to
prevent in [the context of taking indecent
liberties] was the defendant's performance of
any immoral, improper, or indecent act in the
presence of a child for the purpose of
arousing or gratifying sexual desire.
Defendant's purpose for committing such act is
the gravamen of this offense; the particular
act performed is immaterial.
State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990)
(internal quotation marks omitted). Accordingly, in applying the
statute, our courts have focused on defendant's purpose (arousing
or gratifying sexual desire) in light of the particular sexual act
in which defendant has engaged. See State v. Every, 157 N.C. App.
200, 206, 578 S.E.2d 642, 648 (2003) (quoting State v. Hicks, 79
N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986)) (observing “[t]he
breadth of conduct that has been held violative of the statute
indicates a recognition by our courts of 'the significantly greaterrisk of psychological damage to an impressionable child from overt
sexual acts . . . .'”).
In many cases concerning conduct alleged to constitute taking
indecent liberties, it has been unnecessary to closely examine
whether the challenged conduct by defendant was motivated by the
purpose of arousing or gratifying sexual desire. The conduct in
those cases obviated extensive discussion regarding the purpose of
the act. See, e.g., State v. Slone, 76 N.C. App. 628, 334 S.E.2d
78 (1985) (defendant placed his hand underneath a twelve-year-old
victim's softball shorts and fondled her); State v. Hicks, 79 N.C.
App. 599, 339 S.E.2d 806 (1986) (defendant exposed himself and
placed his hand on his penis within several feet of a child); State
v. Bowman, 84 N.C. App. 238, 352 S.E.2d 437 (1987) (defendant laid
on top of victim with his pants unzipped, kissed her, and touched
her “pee pee”); State v. Hartness, 326 N.C. 561, 391 S.E.2d 177
(1990) (defendant engaged in various forms of sexual relations with
his seven-year-old daughter and his nine-year-old stepson).
Recently, this Court expanded the scope of what constitutes
indecent liberties when we addressed two issues relevant to the
case at bar: (1) whether mere words can constitute the taking of
indecent liberties with a child, and (2) whether conversations
between a defendant and a victim over the phone are sufficient to
establish constructive presence for the offense. State v. Every,
157 N.C. App. at 204-09, 578 S.E.2d 642, 647-49 (2003). We
answered both questions in the affirmative. Id.
Our holding in Every stands for the proposition that repeated,
graphic, and explicit sexual conversations over the phoneconcurrent with indicia of masturbation is sufficient to allow a
jury to conclude such actions amount to taking indecent liberties.
As with previous cases, an extended discourse on the defendant's
purpose or motivation in Every would have been superfluous.
Defendant's acts of masturbation during the conversation, as well
as the nature of the language employed in the conversations, made
his purpose self-evident. Both of those factors, however, are
absent in the instant case: the conversations were neither sexually
graphic and explicit nor were they accompanied by other actions
tending to show defendant's purpose was sexually motivated. In
short, nothing in the record indicates defendant's actions emanated
from a desire or purpose to arouse or gratify sexual desire. The
State would have us conjecture that there could be no other
motivation by defendant engaging in conversations which could be
read to include sexual innuendo; however, our courts have
repeatedly held mere speculation or suspicion to be insufficient
when considering the propriety of a motion to dismiss. Malloy, 309
N.C. at 179, 305 S.E.2d at 720.
While we emphatically affirm that defendant's conduct is not
condoned by this Court or encouraged by the prevailing mores and
standards of our society, the scope of taking indecent liberties
has never encompassed innuendo and intimation unaccompanied by
other indicia of defendant's motivation, nor do we feel it was
intended to apply to defendant's actions in the instant case. Our
holding does not reflect the opinion that defendant's conduct could
not be made culpable by the Legislature if it determines criminal
liability is appropriate. However, no previous case has appliedtaking indecent liberties to acts analogous to those found in the
instant case, and we decline to enlarge the scope of the offense in
this manner. Accordingly, we hold there was insufficient evidence
that defendant took or attempted to take indecent liberties with
V.V., and the trial court erred in failing to dismiss the charge at
the close of the evidence.
Reversed.
Judges McGEE and HUNTER concur.
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