Appeal by defendant from judgment entered 21 February 2006 by
Judge Andy Cromer in Forsyth County Superior Court. Heard in the
Court of Appeals 19 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth L. Oxley, for the State.
Terry W. Alford for defendant-appellant.
MARTIN, Chief Judge.
Preston Adams-Macon Davis (“defendant”) was convicted by a
jury of attempting to take an indecent liberty with a child. The
trial court sentenced defendant to an active prison term of 24 to
29 months. For the reasons stated below, we find no error.
At trial, the State put forth evidence to show that on 13
October 2003, S.N.D. was twelve years old. S.N.D. testified that
on that date she was alone in her apartment while her mother,
Revonia Holman, visited a friend across the street. She received
a telephone call, and a man's voice was on the line. She had never
before heard the voice. The man asked to speak with S.N.D.'s
mother concerning an offer to sell X-rated movies. S.N.D.
indicated that there was no adult in the house. The man askedS.N.D. if she knew about “sucking dick and stuff” to which she
replied she had “heard about it in school.” The man asked S.N.D.
for her address and how to get to her apartment. He told her not
to tell her mother and then hung up the phone. The man called back
to tell S.N.D. that he was on the road looking for her apartment.
She told the man it was near a Carmike Movie Theater.
S.N.D. got off the phone and ran across the street to find her
mother. While explaining what happened, S.N.D. and Ms. Holman
observed a man, later identified as defendant, park a pickup truck
and walk to Ms. Holman's apartment door. Ms. Holman testified that
she saw defendant knock on her front door. Defendant was carrying
a dark briefcase. Ms. Holman walked outside and approached
defendant. Without revealing that she lived in the apartment, she
asked defendant what he was selling. After a brief exchange in
which he said he was selling insurance, defendant left the scene.
Ms. Holman's friend wrote down defendant's license plate number.
Ms. Holman called the police. Ms. Holman testified as to the
content of notes taken as S.N.D. attempted to provide a verbatim
recollection of the phone conversation with defendant. According
to the notes, defendant ended the phone call saying: “Don't tell
your mom that I'm coming because I want you to see this for
yourself.”
Officer Durry Gann testified that he responded to Ms. Holman's
call. Officer Gann looked up the license plate number and found
the vehicle to be registered to defendant. Officer Gann and
another officer drove to defendant's home and spoke with him. After initial denials, defendant admitted he made the telephone
calls and drove to the apartment. Defendant told the officers he
thought the individual on the telephone was fifteen and admitted he
“knew better and it was all a mistake.” He gave consent for the
officers to search his residence and told the officers where to
find his briefcase. The officers found an X-rated video inside the
briefcase. Defendant stated that the video was his and that he
used the tape to “hook up with women.”
The trial court denied defendant's motion to dismiss made at
the close of the State's evidence. The defendant did not present
any evidence. Defendant renewed the motion to dismiss, which was
denied.
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Defendant first argues that the trial court committed
reversible error in denying his motion in limine to prevent the
State from showing a portion of the seized X-rated video.
Defendant contends that any relevance that the video may have was
substantially outweighed by the danger of unfair prejudice under
Rule 403.
See N.C. Gen. Stat. § 8C-1, Rule 403 (mandating the
exclusion of relevant evidence when “its probative value is
substantially outweighed by the danger of unfair prejudice[.]”) We
reject defendant's argument.
A trial court's decision to exclude or allow evidence under
Rule 403 will remain undisturbed on appeal absent an abuse of
discretion.
State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554
(1992). An abuse of discretion occurs when the trial court'sruling is “manifestly unsupported by reason or is so arbitrary it
could not have been the result of a reasoned decision.”
State v.
Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133 (1993).
Defendant arrived at S.N.D.'s house with the video in his
briefcase. S.N.D. recalled portions of her phone call with
defendant that suggest that defendant planned to show her the
video. In addition, defendant told the officers searching the home
that he used the tape to help him “hook up with women.” The video
was highly probative to defendant's charge of attempting to take an
indecent liberty with a child. The trial court has not abused its
discretion as the probative value of the evidence substantially
outweighs the danger of unfair prejudice.
Defendant next argues that the trial court erred in denying
his motion to dismiss the charge at the close of the State's
evidence and all of the evidence. A motion to dismiss is properly
denied provided that there is substantial evidence of each
essential element of the offense charged, or a lesser offense
included therein, and of defendant being the perpetrator of such
offense.
State v. Thaggard, 168 N.C. App. 263, 280-81, 608 S.E.2d
774, 786 (2005) (citation omitted). “Evidence is substantial if it
is relevant and adequate to convince a reasonable mind to accept a
conclusion.”
Id. at 281, 608 S.E.2d at 786 (citing
State v. Vick,
341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995)). All evidence
must be considered in a light most favorable to the State.
State
v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Defendant was charged with and convicted of attempting to take
an indecent liberty with a child. To prove the attempt of any
crime, the State must show “(1) the intent to commit the
substantive offense, and (2) an overt act done for that purpose
which goes beyond mere preparation, but (3) falls short of the
completed offense.”
State v. Miller, 344 N.C. 658, 667, 477 S.E.2d
915, 921 (1996). To prove the substantive offense, taking indecent
liberties with a minor, the State must show “(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);
see also N.C. Gen. Stat. § 14-202.1
(2005).
In the present case, the State presented substantial evidence
of each essential element of the offense charged. Defendant was
thirty-five years old and S.N.D. was twelve on 13 October 2003. A
reasonable mind could conclude that it was defendant's intent to
take an indecent liberty with the child. In talking with S.N.D. on
the phone, defendant discovered that there was no adult in her
residence. He asked her if she knew about certain sex acts. He
asked S.N.D. for her address and directions to her apartment.
Defendant later told officers that he thought S.N.D. was fifteen.
Defendant took an overt act toward the commission of the offensewhen he arrived at S.N.D.'s apartment with an X-rated video. His
phone conversation and the X-rated video both suggest that
defendant arrived at S.N.D.'s apartment for the “purpose of
arousing or gratifying sexual desire.” N.C. Gen. Stat. § 14-202.1
(1) (2005). Defendant's assignment of error is without merit.
No error.
Judges HUNTER and STROUD concur.
Report per Rule 30(e).
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