Appeal by defendant from judgment entered 21 October 2003 by
Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 12 January 2005.
(See footnote 1)
Attorney General Roy Cooper, by Assistant Attorney General
Jennie Wilhelm Mau, for the State.
M. Alexander Charns for defendant-appellant.
TIMMONS-GOODSON, Judge.
Arthur Williams Verrier (“defendant”) appeals his convictions
for taking indecent liberties with a child, obtaining habitual
felon status, three counts of third-degree sexual exploitation of
a minor, and failure to register as a sex offender. For the
reasons stated herein, we hold that defendant received a trial free
of prejudicial error, but we remand the case for resentencing.
The State's evidence presented at trial tends to show the
following: In September and October of 2002, defendant lived with
his niece, Lisa,
(See footnote 2)
and her daughter, Kim,
(See footnote 3)
in Winston-Salem, North
Carolina. Kim was in the first grade, and she ordinarily went to
the home of her grandmother, Karen,
(See footnote 4)
for after-school care whileLisa was at work. Defendant babysat Kim approximately three nights
when Lisa had to work in the evening. Defendant also spent time at
Karen's residence, which was located on the same street as Lisa's
residence.
On or about 2 October 2002, Karen awoke in the middle of the
night and saw defendant viewing something on the computer. The
following day, Karen found pictures on the computer. Karen brought
the pictures to Lisa's attention. Lisa and Karen then engaged in
a conversation with Kim, during which Kim told Lisa and Karen that
she and defendant “play[ed] the tickle game.” Kim demonstrated the
game as starting with tickling her leg and continuing with tickling
her vaginal area. At that time, Lisa and Karen called the police.
Corporal S.E. Spencer (“Corporal Spencer”) of the Winston-
Salem Police Department responded to the call. Corporal Spencer
interviewed Kim, and he recalled the following pertinent details of
the interview:
I asked [Kim] if [defendant] had ever touched
her and she said yes, he had touched her on
her private parts. When she made that
statement, [Kim] reached, as she started
making the statement, almost immediately
reached down and touched with an open hand
over her groin area directly above her vagina
and said that he had touched her private
parts.
Kim's case was assigned to Juvenile Detective Natashia James
(“Detective James”). Detective James interviewed Kim, and she
answered Detective James's questions consistent with her statements
to Lisa, Karen, and Corporal Spencer. Defendant was subsequently arrested, and, on 6 January 2003,
indicted for taking indecent liberties with Kim. On 24 March 2003,
defendant was indicted for failure to register as a sex offender.
On 2 June 2003, defendant was indicted for obtaining habitual felon
status. On 20 October 2003, defendant was indicted for three
counts of third-degree sexual exploitation of a minor.
Defendant was tried for the indecent liberties charge on 20
October 2003. At trial, the State presented evidence from Kim,
Corporal Spencer, Karen, Lisa, and Detective James. Defendant
presented no evidence. On 21 October 2003, the jury found
defendant guilty of taking indecent liberties with Kim. Defendant
subsequently pled guilty to the charges of failing to register as
a sex offender, obtaining habitual felon status, and three counts
of third-degree sexual exploitation of a minor. The trial court
thereafter found as an aggravating factor to the taking of indecent
liberties offense that defendant took advantage of a position of
trust or confidence to commit the offense, and the trial court
sentenced defendant to a total of 120 to 153 months imprisonment.
Defendant appeals.
The issues on appeal are whether the trial court erred by:
(I) denying defendant's motion to dismiss the charge of taking
indecent liberties with a child; (II) allowing prosecution
witnesses to render prejudicial testimony; (III) failing to grant
a mistrial; and (IV) failing to record jury selection, bench
conferences, and the attorneys' opening and closing arguments. [1] Defendant first argues that the trial court erred by
denying his motion to dismiss the charge of taking indecent
liberties with a child. Defendant asserts that the State failed to
demonstrate that defendant acted for the purpose of arousing or
gratifying sexual desire. We disagree.
In considering a motion to dismiss, the trial court must
examine the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference that may
be drawn from the evidence.
State v. Benson, 331 N.C. 537, 544,
417 S.E.2d 756, 761 (1992). The standard of review for a motion to
dismiss based on insufficiency of the evidence is “the substantial
evidence test.”
State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d
597, 602 (1993),
cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994).
Substantial evidence is defined as the amount of “relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980).
N.C. Gen. Stat. § 14-202.1(a)(1) (2003) provides the elements
of taking indecent liberties with a child as follows:
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 . . . [w]illfully
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[.]
“With regard to evidence that the touching by [the] defendant was
for the purpose of arousal or sexual gratification, this Court hasheld that a defendant's purpose, being a mental attitude, is seldom
provable by direct evidence and must ordinarily be proven by
inference.”
State v. Rogers, 109 N.C. App. 491, 505, 428 S.E.2d
220, 228 (citation and quotation marks omitted),
cert. denied, 334
N.C. 625, 435 S.E.2d 348 (1993). This element “may be inferred from
the evidence of the defendant's actions.”
State v. Rhodes, 321 N.C.
102, 105, 361 S.E.2d 578, 580 (1987).
In
Rogers, where the evidence tended to show that the defendant
touched the chest and vaginal area of a five-year-old child while
alone in a bathroom, we held that sufficient evidence existed “to
permit the jury to infer that [the] defendant's purpose in doing so
was to arouse himself or to gratify his sexual desire.” 109 N.C.
App. at 505-06, 428 S.E.2d at 229. In the instant case, Kim
testified on direct examination that defendant “tickle[d]” her
“[t]wo or three” times in her “private[,]” and that it felt “[b]ad.”
Kim testified that defendant tickled her “[m]aybe [in] the living
room[,]” and that as he was tickling her leg, defendant would “start
going up . . . . [t]o [her] private.” We conclude that this
evidence, when viewed in the light most favorable to the State,
tends to show that defendant touched Kim inappropriately in her
“private” area, under the pretext of tickling her. Thus, because
the State presented sufficient evidence tending to show that
defendant acted for the purpose of arousing or gratifying sexual
desire, there was substantial evidence of indecent liberties with
a child. Accordingly, we conclude that the trial court did not errby denying defendant's motion to dismiss the charge of taking
indecent liberties with Kim.
[2] Defendant next argues that the trial court erred by
allowing the introduction of prejudicial evidence and by not
inquiring as to whether the jurors were influenced by an inquiry
made to them outside the courtroom. We note initially that, “[i]n
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) (2005). In the instant case, defendant
asserts in his brief that the trial court committed plain error by
allowing Karen to describe the images she saw on the computer.
Defendant also asserts that his trial was prejudiced by an inquiry
of four jurors “about the location of a court case for a sexual
assault case by a family member.” However, defendant “provides no
explanation, analysis or specific contention in his brief supporting
the bare assertion that the claimed error is so fundamental that
justice could not have been done[,]”
State v. Cummings, 352 N.C.
600, 636, 536 S.E.2d 36, 61 (2000),
cert. denied, 532 U.S. 997, 149
L. Ed. 2d 641 (2001), or that “absent the error, the jury probably
would have reached a different verdict[.]”
State v. King, 342 N.C.
357, 365, 464 S.E.2d 288, 293 (1995). “The right and requirement
to specifically and distinctly contend an error amounts to plain
error does not obviate the requirement that a party provide argumentsupporting the contention” that the trial court's actions amounted
to plain error as required by N.C.R. App. P. 28(a) and (b)(6).
Cummings, 352 N.C. at 636, 536 S.E.2d at 61.
To hold otherwise would negate those
requirements, as well as those in Rule
10(b)(2). [A] defendant's empty assertion of
plain error, without supporting argument or
analysis of prejudicial impact, does not meet
the spirit or intent of the plain error rule.
By simply relying on the use of the words
“plain error” as the extent of his argument in
support of plain error, [the] defendant has
effectively failed to argue plain error and has
thereby waived appellate review.
Id. at 636-37, 536 S.E.2d at 61 (citations omitted). Accordingly,
after reviewing the record in the instant case, we conclude that
defendant has waived any right to pursue these arguments on appeal.
[3] Defendant next argues that the trial court erred by failing
to declare a mistrial based upon (i) Karen's testimony about
defendant's prior conviction, (ii) the failure to sequester
witnesses, and (iii) the contact between members of the jury and a
member of Kim's family. Although defendant did not move for a
mistrial upon such grounds at trial, on appeal, he asserts that it
was plain error for the trial court not to grant a mistrial on its
own motion. However, our appellate courts have applied plain error
review only to those questions involving jury instructions or the
admissibility of evidence.
See State v. Childress, 321 N.C. 226,
234, 362 S.E.2d 263, 268 (1987). Plain error review does not apply
to decisions made at the trial judge's discretion.
See State v.
Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000). In the instant
case, defendant fails to cite any authority supporting his argumentthat this Court should review under plain error the trial court's
failure to exercise its discretion
ex mero motu on the question of
a mistrial. Accordingly, we deem this argument abandoned.
[4] Defendant next argues that his rights to due process and
effective assistance of appellate counsel were violated by the
failure of his trial counsel to request that the trial court record
jury selection, bench conferences, and the attorneys' opening and
closing arguments at trial. We cannot agree.
N.C. Gen. Stat. § 15A-1241(a) and (b) (2003) provide for the
recordation of trial proceedings as follows:
(a) The trial judge must require that the
reporter make a true, complete, and
accurate record of all statements from the
bench and all other proceedings
except:
(1) Selection of the jury in non capital
cases;
(2) Opening statements and final
arguments of counsel to the jury; and
(3) Arguments of counsel on questions of
law.
(b)
Upon motion of any party or on the judge's
own motion, proceedings excepted under
subdivisions (1) and (2) of subsection (a)
must be recorded.
(emphasis added).
In
State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992), the
defendant argued that § 15A-1241 applied to off-the-record bench
conferences. Our Supreme Court declined to expand the statute to
include bench conferences, concluding that
the enactment of this statute by the
legislature in 1977 was [not] intended to
change the time-honored practice ofoff-the-record bench conferences between trial
judges and attorneys. If the legislature had
intended to make such a radical change in trial
procedure, we feel confident it would have done
so explicitly.
Id. at 498, 422 S.E.2d at 698.
In the instant case
, there is no evidence in the record that
defendant made a motion for the jury selection, bench conferences,
and opening and closing statements to be recorded. Defendant's
brief contains the following contention:
Defendant requests a modification or change of
law to provide a per se rule granting a new
trial where counsel neither requests nor the
trial court requires that the entire trial,
jury selection, arguments of counsel and bench
conferences are recorded. The lack of a
transcript for portions of his trial denied
[defendant] the complete assistance of
appellate counsel and consequently, deprived
him of the most complete appellate review by
this Court.
We recognize that appellate counsel may be at a disadvantage
when preparing an appeal for a case in which he did not participate
at the trial level, as appellate counsel is somewhat bound by the
decisions and strategies of trial counsel. However, this Court
cannot grant defendant the relief he seeks on this issue. It is
outside the realm of this Court's function as the judiciary to
modify statutory law. That role is reserved for the legislature.
Accordingly, this argument is overruled.
[5] In two motions for appropriate relief filed with his
appeal, defendant challenges the constitutionality of the sex
offender registration statute as applied to him as well as the trialcourt's decision to sentence him in the aggravated range.
(See footnote 5)
Defendant first asserts that N.C. Gen. Stat. § 14-208.11, which
imposes a criminal penalty upon those individuals who have a
reportable conviction but fail to register as sex offenders, is
unconstitutional as applied to him.
In
State v. Bryant, ___ N.C.
___, 614 S.E.2d 479 (Filed 1 July 2005) (No. 173PA04), our Supreme
Court recently examined the constitutionality of N.C. Gen. Stat. §
14-208.11 as applied to an out-of-state sex offender who failed to
register upon moving to North Carolina. In that case, the defendant
was a convicted sex offender in South Carolina who was notified
while serving his sentence that he had a duty to register with the
State of South Carolina upon his release from prison. The defendant
signed a form in which he acknowledged that he had been notified,
orally and in writing, of his lifelong duty to register within the
state. Although the defendant notified the State of South Carolina
of his subsequent moves within South Carolina following his release,
he failed to notify either the State of South Carolina or the State
of North Carolina of his move to Winston-Salem, North Carolina, in
November 2000.
In 2001, the defendant was arrested, charged, and convicted in
North Carolina for failing to register as a convicted sex offender.
On appeal, he cited
Lambert v. California, 355 U.S. 225, 2 L. Ed.
2d 228 (1957), in support of his assertion that the State had toprove actual or probable notice of his duty to register in order to
satisfy due process. Our Supreme Court acknowledged the “narrow
Lambert exception
to the general rule that ignorance of the law is
no excuse[,]” ___ N.C. at ___, 614 S.E.2d at ___, and it noted that
to be entitled to relief under the decidedly
narrow
Lambert exception, a defendant must
establish that his conduct was “wholly passive”
such that “
circumstances which might move one
to inquire as to the necessity of registration
are completely lacking” and that [the]
defendant was ignorant of his duty to register
and there was no reasonable probability that
[the] defendant knew his conduct was illegal.
Id. at ___, 614 S.E.2d at ___ (quoting
Lambert, 355 U.S. at 228-29,
2 L. Ed. 2d at 231-32)) (emphasis in original). After concluding
that the defendant's case was “rich with circumstances that would
move the reasonable individual to inquire of his duty to register
in North Carolina such that [the] defendant's conduct was not wholly
passive[,]” ___ N.C. at ___, 614 S.E.2d at ___, the Court rejected
the defendant's constitutional challenge to N.C. Gen. Stat. § 14-
208.11, holding that the “actual notice by South Carolina of [the
defendant's] duty to register as a convicted sex offender” was
“sufficient” to put the defendant “on notice to inquire into the
applicable law of the state to which he relocated, in this instance
North Carolina.”
Id. at ___, 614 S.E.2d at ___.
In the instant case, our review of the circumstances
surrounding defendant's conviction for failure to register as a sex
offender is limited by the posture of the issue. N.C. Gen. Stat.
§ 15A-1418(b) (2003) provides that, when a motion for appropriate
relief is filed with this Court, we must decide “whether the motionmay be determined on the basis of the materials before [us], or
whether it is necessary to remand the case to the trial division for
taking of evidence or conducting other proceedings.” Here, the
materials in defendant's motion for appropriate relief contain only
his sworn affidavit, which alleges that he was not provided with
actual notice during his prison sentence in Maine that he was
required to register as a sex offender upon his release, and that
he was not instructed that he was required to notify the State of
Maine upon a subsequent change in residence. Mindful that it is
more within the province of a trial court rather than an appellate
court to make factual determinations, we conclude that the materials
in the instant case are insufficient to enable us to render a
decision regarding defendant's motion. Accordingly, we dismiss that
portion of defendant's motion for appropriate relief concerning the
applicability of N.C. Gen. Stat. § 14-208.11, without prejudice to
defendant to file a new motion for appropriate relief in the
superior court.
See N.C. Gen. Stat. § 15A-1418 (official
commentary) (“It is possible that some factual matters could be
decided . . . in the appellate division, but frequently they would
require that the trial court hold an additional evidentiary hearing.
Thus the appellate division is . . . given authority to remand the
case to the trial division for a hearing. It is possible that the
hearing could determine the disposition of the case and eliminate
the necessity for going forward with the review.”);
State v. Hurst,
304 N.C. 709, 712, 285 S.E.2d 808, 810 (1982) (per curiam)
(dismissing motion for appropriate relief where materials wereinsufficient to allow the Court to determine whether the defendant's
conviction was unconstitutional).
[6] In addition to his challenge to N.C. Gen. Stat. § 14-
208.11, defendant asserts that the trial court erred by aggravating
his sentence for taking indecent liberties with a child. Defendant
contends that the trial court was required to submit the aggravating
factor to a jury prior to aggravating his sentence. We agree.
In
State v. Allen, ___ N.C. ___, 615 S.E.2d 256 (Filed 1 July
2005) (No. 485PA04), our Supreme Court recently reviewed North
Carolina's structured sentencing scheme in light of the United
States Supreme Court's decisions in
Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435 (2000) and
Blakely v. Washington, 542 U.S.
296, 159 L. Ed. 2d 403 (2004). After reviewing the pertinent case
law, the
Court determined that, when “[a]pplied to North Carolina's
structured sentencing scheme, the rule of
Apprendi and
Blakely is:
Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed presumptive range must
be submitted to a jury and proved beyond a reasonable doubt.”
Allen, ___ N.C. at ___, 615 S.E.2d at ___ (citing
Blakely, 542 U.S.
at ___, 159 L. Ed. 2d at 413-14;
Apprendi, 530 U.S. at 490, 147 L.
Ed. 2d at 455; N.C. Gen. Stat. §§ 15A-1340.13, 15A-1340.14, 15A-
1340.16, and 15A-1340.17). The Court noted that its holding
“appl[ied] to cases 'in which the defendants have not yet been
indicted as of the certification date of this opinion and to cases
that are now pending on direct review or are not yet final[,]”
thereby making it applicable to the instant case.
___ N.C. at ___,615 S.E.2d at ___ (quoting
State v. Lucas, 353 N.C. 568, 598, 548
S.E.2d 712, 732 (2001));
see also N.C. Gen. Stat. § 15A-1446(d)(19).
Here, the trial court found as an aggravating factor that the
circumstances of defendant's conviction for indecent liberties with
a child involved defendant taking advantage of a position of trust
or confidence to commit the offense. The trial court found this
factor unilaterally, thereby violating the Court's decision in
Allen
and the cases cited therein. The State contends that this error was
nevertheless harmless, in that it introduced uncontroverted and
overwhelming evidence to establish that defendant violated a
position of trust in committing the offense. However, “[b]ecause
'speculat[ion] on what juries would have done if they had been asked
to find different facts' is impermissible,” our Supreme Court
concluded in
Allen that “'[h]armless error analysis cannot be
conducted on
Blakely Sixth Amendment violations.'”
Id. at ___, 615
S.E.2d at ___ (quoting
State v. Hughes, 158 Wash. 2d 118, 148, 110
P.3d 192, 208 (2005)). Therefore, in light of the Court's decision
in
Allen, we conclude that the trial court committed reversible
error by aggravating defendant's sentence for taking indecent
liberties with a child.
(See footnote 6)
Accordingly, we allow that portion ofdefendant's motion for appropriate relief concerning the imposition
of the aggravated sentence, and we remand the case for resentencing.
As discussed above, that portion of defendant's motion for
appropriate relief concerning the application of N.C. Gen. Stat. §
14-208.11 to the facts of this case is dismissed without prejudice
to defendant to refile the motion at the trial court level.
In light of the foregoing conclusions, we hold that defendant
received a trial free of prejudicial error in part, but we remand
the case for resentencing.
No error at trial; remanded for resentencing.
Judges HUDSON and STEELMAN concur.
Footnote: 1