An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04_1311

NORTH CAROLINA COURT OF APPEALS

Filed: 17 January 2006

STATE OF NORTH CAROLINA

v .                         Gaston County
                            Nos. 03 CRS 9358
CHRISTOPHER LEE JOLLY,                03 CRS 53590
        Defendant.

    Appeal by defendant from judgment entered 20 April 2004 by Judge Charles Lamm in Gaston County Superior Court. Heard in the Court of Appeals 20 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State.

    Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant.

    GEER, Judge.

    Defendant Christopher Lee Jolly appeals from his conviction for taking indecent liberties with a child. Defendant argues primarily (1) that the State presented insufficient evidence that he acted for the purpose of arousing or gratifying sexual desire and (2) that the trial court committed plain error in admitting evidence of possible physical abuse. We hold that based on the State's evidence, a reasonable juror could infer that defendant had the necessary improper purpose and that any error in the admission of the disputed evidence does not rise to the level of plain error.

Facts
    The State's evidence tended to show the following. In June 2002, defendant came to live with his seven-year-old son, L.C., and L.C's mother. In August or September of that year, defendant and L.C. were home alone when defendant decided to "teach[] [L.C.] sex." L.C. testified: "We were sitting on the couch. He made me take off my pants and he did. We did this until 4:00 when we had to pick up my mom. White stuff came out of his. Just peepee _ white stuff came out of his peepee. It didn't come out of mine." L.C. also testified: "One day [defendant] did it in front of me but I didn't. He said that he wanted me to get a woman but I might just get a car or something. I call my private part my peepee. Sometimes when I pee [defendant] would thump my peepee or shake it so more pee would come out."
    Later in the fall of 2002, relatives began noticing bruises on L.C. and odd behavior such as a reluctance to be alone with adult men. A child abuse investigator with the Gaston County Department of Social Services was assigned to investigate allegations of abuse. When she came to L.C.'s school to interview him, he appeared "unkept" and seemed "withdrawn [and] depressed." During the interview, L.C. indicated that "when his mother was at work . . . [defendant] liked to do sneaky things and that he would make him take _ [defendant] would take his clothes off. Then he would make [L.C.] take his clothes off and he, [defendant], would move his hand up and down on his peepee and instruct [L.C.] to do the same."    The child abuse investigator persuaded L.C.'s mother to allow L.C. to be temporarily placed in his aunt and uncle's home. While there, L.C. seemed "cleaned, well kept, happy, engaging, [and] talkative." Sergeant Lori Hersey of the Gaston County Police Department visited L.C. at this time and took a statement from him. She described him as follows: "He seemed to be a happy little boy. Dressed nice. He seemed to be excited that the police were there and he wanted to play and actually wanted me to play, too, but just a typical little boy."
    Sergeant Hersey contacted defendant and took the following statement from him:
        [T]here were times that I whipped [L.C.]. I know that sometimes I would whip him hard. Every time that I gave [L.C.] [a] whipping I would use my hand. . . . One time while I lived there . . . [L.C.] walked in on me in the bathroom and saw me masturbating. I had just gotten out of the shower. I told [L.C.] to go on but he didn't. . . . I sit [sic] [L.C.] down on the bed and told him that what was coming out was what made babies. . . . I told him that I would tell him when he gets older and could understand. I remember thumping him one time when he was peeing and told him that he had to shake the rest of it out. I have never touched him in any inappropriate ways. I have never had him touch me either. That is the only time that I know [L.C.] ever saw me masturbate.

    Defendant was indicted with one count of indecent liberties with a child on 5 May 2003, and a jury convicted him of that charge on 20 April 2004. On that date, defendant also pled guilty to attaining habitual felon status. The trial court sentenced him to 93 to 121 months imprisonment.
I
     Defendant first contends that the trial court erred by denying his motion to dismiss for insufficiency of the evidence. "'In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence.'" State v. Owens, 135 N.C. App. 456, 462, 520 S.E.2d 590, 594 (1999) (quoting State v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997)).
    "In order to obtain a conviction under [the indecent liberties] statute, the State must prove (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). The only contested element in this case is the fifth: whether defendant acted for the purpose of arousing or gratifying sexual desire.
    Defendant argues that his case is analogous to that of State v. Brown, 162 N.C. App. 333, 590 S.E.2d 433 (2004). In Brown, the defendant engaged in a series of telephone conversations with the underage victim, during which he made a number of inappropriate comments such as telling the victim that he would like to take herout to eat, spend time with her, and kiss her, although he never actually attempted to do so. Id. at 335, 590 S.E.2d at 435. This Court reversed his conviction for taking indecent liberties, stating that although "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." Id. at 338, 590 S.E.2d at 437.
     Defendant argues that in his case, similar to Brown, there were no indicia supporting the contention that defendant's motivation in masturbating in front of his son, and "teaching" the son to do the same, was for the purpose of arousing or gratifying defendant's sexual desire. Specifically, defendant contends that the State's evidence "reveals, not the commission of the crime of taking indecent liberties with a child, but an extremely misguided attempt by defendant to instruct his son on the 'facts of life.'" Therefore, he argues, the trial court should have granted his motion to dismiss for insufficiency of the evidence.
    In an indecent liberties case, a defendant's purpose in committing the act at issue 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)), overruled in part on other grounds, State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000). Our Supreme Court has held that "[t]he fifth element, that the action was for the purpose of arousing orgratifying sexual desire, may be inferred from the evidence of the defendant's actions." Rhodes, 321 N.C. at 105, 361 S.E.2d at 580.
    Here, while defendant offered an innocent explanation for his conduct, he also admits that those actions "were sexual in nature and may have ultimately resulted in his sexual desire being gratified." The evidence showed that defendant was alone with L.C., pulled down his own pants and those of the child, masturbated to ejaculation, and tried to make the child do the same. A juror could reasonably infer from defendant's behavior that the purpose was not misguided parenting, but rather for defendant's sexual gratification. The sexually explicit nature of defendant's conduct _ in the victim's immediate presence and actually resulting in sexual gratification _ distinguishes this case from Brown.
    This Court has previously held that masturbation by an adult in the presence of a child may constitute indecent liberties. Owens, 135 N.C. App. at 462, 520 S.E.2d at 594 (upholding conviction for indecent liberties when the defendant was masturbating in doorway to juvenile sisters' bedroom while they watched); State v. Nesbitt, 133 N.C. App. 420, 424, 515 S.E.2d 503, 506 (1999) (finding indecent liberties when defendant was masturbating behind full length glass door with children in the yard). It was for the jury to decide whether the purpose was sexual gratification or to teach L.C. about sex. See Owens, 135 N.C. App. at 462, 520 S.E.2d at 594 (holding that defendant's argument that he did not know the girls could see him masturbating was a question for the jury); Nesbitt, 133 N.C. App. at 424, 515S.E.2d at 506 (holding that the fact the defendant masturbated in the sight of the children raised a question for the jury whether the defendant involved the children for the purpose of arousing his sexual desire). Since our standard of review requires us to give the State the benefit of every reasonable inference that may be drawn from the evidence, we hold that the trial court did not err by denying defendant's motion to dismiss.
II
    Defendant next argues that the trial court erred by admitting testimony and written statements indicating that (1) defendant had "thumped" L.C.'s "peepee," (2) L.C. had bruises on him, (3) defendant had struck L.C. and his sister, and (4) defendant had admitted "whipping" L.C. Defendant contends that this evidence of physical abuse was irrelevant under N.C.R. Evid. 402 and was also inadmissible under N.C.R. Evid. 404(b).
    Because defendant did not object to this evidence on this basis at trial, we may review its admission for plain error only.   (See footnote 1)  N.C.R. App. P. 10(c)(4). We may reverse for plain error:
        "only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has '"resulted in a miscarriage of justice or in the denial to appellant of a fair trial"' or where the error is such as to 'seriouslyaffect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly said 'the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)).
    With respect to the evidence of "thumping," we agree with the State that this evidence was not another "bad act," but was part of the conduct giving rise to the charge of indecent liberties. It was thus relevant under Rule 402 and also does not fall within the scope of Rule 404(b) relating to "other crimes, wrongs, or acts."
    With respect to the bruising and possible striking of L.C. and his sister, that evidence explained how the Department of Social Services became involved and came to conduct the investigation that ultimately led to the victim's disclosure of the sexual abuse. As such, it was relevant and was offered for a purpose other than to suggest defendant's propensity to commit a crime. See State v. Agee, 326 N.C. 542, 550, 391 S.E.2d 171, 175-76 (1990) (holding that evidence of the defendant's marijuana possession was admissible under Rule 404(b) because it "served the purpose of establishing the chain of circumstances leading up to his arrest for possession of LSD").
    Finally, defendant argues that the trial court should have excluded his statement to the police admitting that he had whipped L.C. Even assuming this evidence was inadmissible, we do notbelieve that its admission rises to the level of plain error. In light of the other evidence, we cannot say that defendant's statement tilted the scales and caused him to be convicted. State v. Childress, 321 N.C. 226, 234, 362 S.E.2d 263, 268 (1987) ("in order to invoke the plain error rule this Court must determine that the alleged error 'tilted the scales' and caused the jury to reach its verdict"). We reach the same conclusion with respect to defendant's argument that the trial court committed plain error in failing to exclude all of the evidence under Rule 403.
    Defendant has argued alternatively that his trial counsel's failure to object to the admission of the instances of physical abuse amounted to ineffective assistance of counsel. In order to establish ineffective assistance of counsel, a defendant must make the following showing:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). With respect to most of the evidence, it was properly admitted and, therefore, defendant has failed to show deficient performance by his counsel. In any event , we do not believe, in light of the record, that "there is a reasonable probability that . . . there would have been a differentresult in the proceedings" had counsel objected. State v. Braswell, 312 N.C. 533, 563, 324 S.E.2d 241, 248 (1985).

    No error.
    Judges HUNTER and HUDSON concur.
    Report per Rule 30(e).


Footnote: 1
    We acknowledge that defendant did object at trial to the admission of certain portions of this evidence, but he did not do so on the grounds raised on appeal.

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