STATE OF NORTH CAROLINA
v
.
JIMMY LAWRENCE SHUE
Attorney General Roy Cooper, by Assistant Attorney General
Lori A. Kroll, for the State.
Clifford, Clendenin, O'Hale & Jones, LLP, by Walter L. Jones,
for defendant.
McGEE, Judge.
Jimmy Lawrence Shue (defendant) appeals from judgment entered
upon a jury verdict finding defendant guilty of taking indecent
liberties with a child and second degree kidnapping. Defendant was
sentenced to imprisonment for twenty-five to thirty-nine months for
second degree kidnapping of a five-year-old child and a consecutive
term of sixteen to twenty months for taking indecent liberties with
an eight-year-old child. Defendant did not appeal the trial
court's entry of prayer for judgment for defendant's conviction of
taking indecent liberties with a five-year-old child and his
conviction of assault of an eight-year-old child.
The State's evidence tended to show that on the evening of 25
March 2002, L.H. was dining with her daughter and her two minor
sons (P.H. and N.H.) at Ham's restaurant in Burlington, NorthCarolina. L.H.'s sister and her four children, including her minor
son (K.R.), joined them for dinner.
While the families waited for the arrival of their order,
eight-year-old P.H. went to the restaurant's restroom. P.H. was
unable to lock the only stall in the restroom. P.H. asked
defendant, who was in the restroom, for assistance in locking the
stall. Defendant, age forty-seven, entered the stall along with
P.H. and attempted to engage the lock. Once defendant had
successfully locked the stall, he turned towards P.H. and attempted
to grab P.H.'s arm. Defendant left the stall when P.H. jerked his
arm away. P.H. returned to his family's table.
Five-year-old N.H. later went to the restroom and shortly
thereafter his mother asked P.H. and K.R. to check on N.H. since he
had failed to return to the table. When P.H. and K.R. entered the
restroom, they saw defendant and N.H. in the same stall with the
stall door closed. P.H. saw defendant exit the stall.
While N.H. was in the stall of the restaurant's restroom,
defendant entered the stall and closed the stall door just as N.H.
finished urinating. N.H. testified that defendant stated that he
wanted to help N.H. "tinkle" and he touched N.H.'s "tinkle spot"
with both hands before leaving the stall and the restroom.
Defendant was convicted of second degree kidnapping and taking
indecent liberties with a five-year-old child. Defendant was also
convicted of assault on a child under twelve and taking indecent
liberties with an eight-year-old child. Defendant appeals his
convictions for second degree kidnapping of a five year old childand taking indecent liberties with an eight year old child.
Both of defendant's assignments of error allege the trial
court erred in denying his motion to dismiss for insufficient
evidence.
When considering a motion to dismiss for insufficient
evidence, the trial court must determine whether there is
substantial evidence of each element of the offense and that the
defendant committed the offense. State v. Irwin, 304 N.C. 93, 97,
282 S.E.2d 439, 443 (1981). Substantial evidence is "'such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" State v. Smith, 150 N.C. App. 138, 140,
564 S.E.2d 237, 239, (quoting State v. Vause, 328 N.C. 231, 236,
400 S.E.2d 57, 61 (1991)(citations omitted)), cert. denied, 355
N.C. 756, 566 S.E.2d 87 (2002). All evidence is to be considered
in the light most favorable to the State and all reasonable
inferences are to be drawn therefrom. Irwin, 304 N.C. at 98, 282
S.E.2d at 443. Where there is a reasonable inference of a
defendant's guilt from the evidence, the jury must determine
whether that evidence "convinces them beyond a reasonable doubt of
defendant's guilt." Id.
In his first assignment of error, defendant contends that the
trial court erred by denying his motion to dismiss because the
State failed to present sufficient evidence that he took indecent
liberties with an eight-year-old child.
N.C. Gen. Stat. § 14-202.1 proscribes that:
(a) A person is guilty of taking indecent
liberties with children if, being 16 years ofage 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 (2003).
In explaining the statute and its impact, our Supreme Court
has stated that
[t]he evil the legislature sought to prevent
in this context 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. It is
important to note that the statute does not
contain any language requiring a showing of
intent to commit an unnatural sexual act. Nor
is there any requirement that the State prove
that a touching occurred. Rather, the State
need only prove the taking of any of the
described liberties for the purpose of
arousing or gratifying sexual desire.
State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180-81
(1990); see also State v. Every, 157 N.C. App. 200, 578 S.E.2d 642
(2003).
The State's evidence in the case before us showed that
defendant entered a stall occupied by P.H. and after fixing the
lock at P.H.'s request, defendant reached out to grab the child's
arm. P.H. jerked his arm away and defendant exited the stall.
Defendant argues that his conduct does not constitute the taking ofindecent liberties with a child. However, the State asserts there
was sufficient evidence of an attempt by defendant to take indecent
liberties with P.H. and, therefore, he is guilty of the offense of
taking indecent liberties with a child as prohibited under N.C.
Gen. Stat. § 14.202.1.
"The two elements of the crime of attempt are (1) there must
be the intent to commit a specific crime and (2) an overt act which
in the ordinary and likely course of events would result in the
commission of the crime." State v. Brayboy, 105 N.C. App. 370,
374, 413 S.E.2d 590, 593, (evidence that the defendant grabbed the
victim, forced her to the ground, pinned her arms and straddled her
was insufficient to support conclusion of the defendant's intent to
rape), disc. review denied, 332 N.C. 149, 419 S.E.2d 578 (1992).
It was the State's burden at trial in the case before us to present
sufficient evidence to establish that (1) defendant reached for
P.H. with the intent to take indecent liberties with the child and
(2) in the ordinary and likely course of events, defendant's
conduct would result in the commission of the offense. Id.
The State contends that the requisite intent is evident in the
actions of defendant toward the child's younger brother which
occurred a short time later in the same restroom stall. We
disagree. See State v. Davis, 90 N.C. App. 185, 368 S.E.2d 52
(1988) (evidence that the defendant had raped a woman in the same
apartment complex thirteen years prior was insufficient on its own
to prove intent to commit rape).
Although proof of intent is often shown by the circumstances,we do not believe the General Assembly intended, in enacting this
statute, to alleviate the State's burden to prove a defendant's
intent at the time of the offense at issue. When "evidence 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 should be allowed." State v.
Revels, 153 N.C. App. 163, 167, 569 S.E.2d 15, 17 (2002)(citations
omitted); compare State v. Brown, ___ N.C. App. ___, ___ S.E.2d ___
(2003) (mere conjecture that the defendant's motivation for
conversing with the child was sexually motivated is insufficient
evidence to establish the defendant's purpose was to obtain sexual
gratification). The evidence of defendant's conduct involving N.H.
does not support the conclusion that defendant attempted to take
indecent liberties with P.H. Where the State offered no other
indicia of defendant's intent, such a blanket assumption based on
a later instance is insufficient. The trial court erred in denying
defendant's motion to dismiss the charge of indecent liberties with
P.H.
Defendant next argues that the trial court erred in denying
his motion to dismiss the charge of second degree kidnapping of
N.H., a five-year-old child. Defendant contends that the State
presented insufficient evidence for the charge to survive his
motion to dismiss because the act of kidnapping was not independent
and separate from the charge and conviction for taking indecent
liberties with N.H.
N.C. Gen. Stat. § 14-39 provides: (a) Any person who shall unlawfully confine,
restrain, or remove from one place to
another. . . any other person under the age of
16 years without the consent of a parent or
legal custodian of such person, shall be
guilty of: kidnapping if such confinement,
restraint or removal is for the purpose of:
(2) Facilitating the commission of
any felony or facilitating flight of
any person following the commission
of a felony;
(b) . . . If the person kidnapped was released
in a safe place by the defendant. . . the
offense is kidnapping in the second degree[.]
N.C. Gen. Stat. § 14-39 (2003) (emphasis added). "If the victim is
shown to be under sixteen, the state has the burden of showing that
he or she was unlawfully confined, restrained, or removed from one
place to another without the consent of a parent or legal
guardian." State v. Hunter, 299 N.C. 29, 40, 261 S.E.2d 189, 196
(1980).
"Confinement" in the context of the offense "connotes some
form of imprisonment within a given area, such as a room, a house
or a vehicle." State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d
338, 351 (1978). Whereas "'restrain,' while broad enough to
include a restriction upon freedom of movement by confinement,
connotes also such a restriction, by force, threat or fraud,
without confinement." Id. The initial inquiry is whether there
was "substantial evidence that the defendant[] restrained or
confined the victim separate and apart from any restraint necessary
to accomplish the act[] of [taking indecent liberties with the
minor child]." State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d
245, 255, disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992);see also State v. Oxendine, 150 N.C. App. 670, 676, 564 S.E.2d 561,
566 (2002)("The restraint of the victim must be a complete act,
independent of the sexual offense."), disc. review denied, 356 N.C.
689, 578 S.E.2d 325 (2003).
In Fulcher, our Supreme Court recognized that two or more
criminal offenses "may grow out of the same course of action,"
where the first offense is committed with the intent to commit the
second offense, followed by the commission of the second offense.
Fulcher, 294 N.C. at 523-524, 243 S.E.2d at 351-352 (e.g., a
breaking and entering, with the intent to commit a larceny,
followed by the commission of the larceny). In such an instance,
a defendant may be convicted of both offenses.
In the present case, the State presented evidence that after
N.H. had finished urinating, defendant entered the restroom stall
occupied by the minor child and closed the door. Defendant did so
without the consent of the minor's parents. Defendant effectively
restricted the child's ability to leave the stall and removed N.H.
from the view of others in the restroom who might hinder the
commission of the offense. These facts are substantial evidence
from which a jury could reasonably infer defendant confined N.H.
within the stall for the purpose of facilitating defendant's taking
indecent liberties with N.H. Defendant's second assignment is
therefore without merit.
Defendant's conviction for taking indecent liberties with
P.H., an eight-year-old child, is reversed. The trial court did
not err in defendant's conviction of second degree kidnapping ofN.H., a five-year-old child.
Reversed in part and affirmed in part.
Judges HUDSON and CALABRIA concur.
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