Appeal by Defendant from judgment dated 15 February 2006 by
Judge Cy A. Grant in Superior Court, Nash County. Heard in the
Court of Appeals 22 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Jennie W. Hauser, for the State.
John T. Hall for Defendant.
Andy Edward Fairclothe (Defendant) was charged with two counts
of statutory rape, one count of first-degree sexual offense, and
one count of taking indecent liberties with a child. The jury
found Defendant not guilty of the charges of statutory rape and
first-degree sexual offense and guilty of one count of taking
indecent liberties with a child. The trial court sentenced
Defendant in the presumptive range to a term of sixteen months to
twenty months in prison. Defendant appeals.
L.J. testified she was ten years old at the time of trial.
She knew Defendant because he had been a family friend, and two or
three years earlier had lived with her family for two months. L.J.
testified that she had a "physical relationship" with Defendant onthree occasions. On the first occasion, L.J. was alone with
Defendant at Defendant's house when Defendant touched L.J. outside
her clothing "on [her] chest and down between [her] legs." L.J.
pushed Defendant's hands away and told him to stop, but Defendant
continued to touch her for about thirty minutes.
L.J. testified that on a second occasion when she and
Defendant were alone at Defendant's house, L.J. was in Defendant's
bedroom watching cartoons. L.J. said Defendant came into the
bedroom, took off his clothes, and got on top of her. Defendant
took off L.J.'s clothes and penetrated her mouth and vagina with
his penis. L.J. also testified that on a third occasion, while
Defendant was living at L.J.'s house, Defendant grabbed her by the
arm and took her to a bedroom. No one else was in the house at the
time. Defendant took off L.J.'s clothes, duct-taped her to the
bed, got on top of her, and penetrated her vagina with his penis.
L.J.'s father, D.J., testified that he had known Defendant for
more than twenty years and that Defendant was approximately forty-
two years old. D.J. testified he did not have cable television at
his house and that in 2002 he let L.J. spend the night at
Defendant's house on two or three occasions so she could watch
cartoons. D.J. also testified that Defendant and Defendant's wife
moved into D.J.'s house in 2003 for two to three months. On one
occasion, D.J. and Defendant's wife took L.J.'s sister to the
hospital and left L.J. alone with Defendant for two to three hours.
L.J.'s grandmother testified that she saw L.J. often in 2003.
On one occasion in 2003, L.J. told her grandmother that she hadbeen raped by Defendant.
Sonya Moultrie (Ms. Moultrie), a child protective service
investigator with the Nash County Department of Social Services,
testified that she spoke with Defendant in August 2003. Ms.
Moultrie testified that Defendant said "he had used a rag to show
[L.J.] how to clean herself. And that . . . [h]e told [L.J.] how
to spread her lips apart to get the feces out."
Defendant testified on his own behalf at trial. Defendant
testified that he had tried to show L.J. how to clean her anal-
genital area on approximately three occasions. On one occasion,
when Defendant and L.J. were alone, Defendant testified that L.J.
"used the bathroom on herself" and he told her to lie down.
Defendant got a wash rag and "cleaned her up." Defendant did not
tell L.J.'s father about this incident.
Defendant argues the trial court erred by denying his motion
to dismiss the charge of taking indecent liberties with a child on
the ground that the State presented insufficient evidence of an
intent to arouse or satisfy a sexual desire. In order to withstand
a motion to dismiss a charge of indecent liberties under N.C. Gen.
Stat. § 14-202.1, 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
State v. Rhodes
, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987).
"The fifth element, that the action was for the purpose of arousing
or gratifying sexual desire, may be inferred from the evidence of
the defendant's actions." Id.
at 105, 361 S.E.2d at 580.
On a motion to dismiss for insufficiency of the evidence, a
trial court must determine "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. Vause
328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Substantial evidence
is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion." State v. Vick
, 341 N.C. 569,
583-84, 461 S.E.2d 655, 663 (1995). A trial court views the
evidence in the light most favorable to the State, drawing all
inferences in the State's favor. Id.
at 584, 461 S.E.2d at 663.
Our Court does not review the credibility of witnesses or the
weight of the testimony. State v. Buckom
, 126 N.C. App. 368, 375,
485 S.E.2d 319, 323, cert. denied
, Buckom v. North Carolina
U.S. 973, 139 L. Ed. 2d 326 (1997).
In the present case, L.J. testified that the first time she
had a "physical relationship" with Defendant was at Defendant's
house. On that occasion, L.J. was alone with Defendant and
Defendant touched L.J. outside her clothing "on [her] chest and
down between [her] legs." L.J. pushed Defendant's hands away and
told him to stop, but Defendant continued to touch her for about
thirty minutes. This evidence is sufficient to permit the
inference that Defendant acted with the purpose of arousing orgratifying his sexual desires.
Moreover, Defendant testified that he had tried to show L.J.
how to clean her anal-genital area on approximately three
occasions. On one occasion, when Defendant and L.J. were alone,
Defendant testified that L.J. "used the bathroom on herself" and he
told her to lie down. Defendant got a wash rag and "cleaned her
up." Defendant did not tell L.J.'s father about this incident.
Defendant also told Ms. Moultrie that "he had used a rag to show
[L.J.] how to clean herself. And that . . . [h]e told [L.J.] how
to spread her lips apart to get the feces out." Under these
circumstances, where Defendant used a rag on L.J.'s genital area
while the two of them were alone and where Defendant did not tell
L.J.'s father, the jury could have inferred that Defendant acted
with the purpose of arousing or gratifying his sexual desires.
Furthermore, although the jury found Defendant not guilty of
two counts of statutory rape and one count of first-degree sexual
offense, L.J.'s testimony concerning the second and third "physical
relationship" she had with Defendant was sufficient to establish
the charge of indecent liberties. L.J. testified that on one
occasion when she and Defendant were alone at Defendant's house,
L.J. was in Defendant's bedroom watching cartoons. L.J. testified
that Defendant came into the bedroom, took off his clothes, and got
on top of her. L.J. further testified that Defendant took off her
clothes. Although the jury could have rejected L.J.'s further
testimony that Defendant penetrated her with his penis, the jury
could have accepted her other testimony as sufficient to inferDefendant's purpose was to arouse or gratify his sexual desires.
L.J. also testified that on another occasion, while Defendant
was living at L.J.'s house, Defendant grabbed L.J. by the arm and
took her to a bedroom. No one else was in the house at the time.
Defendant took off L.J.'s clothes, duct-taped her to the bed, and
got on top of L.J. Again, although the jury could have rejected
L.J.'s further testimony that Defendant penetrated her with his
penis, the other evidence was substantial evidence from which the
jury could have inferred that Defendant acted with the purpose of
arousing or gratifying his sexual desires. Accordingly, there was
substantial evidence of the offense of indecent liberties, and the
trial court did not err by denying Defendant's motion to dismiss.
Defendant argues the trial court erred by sentencing him in
the aggravated range without making any findings of aggravating
factors. Defendant contends that because he was given a sentence
that fell within both the presumptive and aggravated ranges, the
trial court was required to make findings in aggravation. This
argument has been repeatedly rejected by this Court, and is
therefore without merit. See State v. Allah
, 168 N.C. App. 190,
197-98, 607 S.E.2d 311, 316-17 (citing State v. Ramirez
, 156 N.C.
App. 249, 576 S.E.2d 714, disc. review denied
, 357 N.C. 255, 583
S.E.2d 286, cert. denied
, Ramirez v. North Carolina
, 540 U.S. 991,
157 L. Ed. 2d 388 (2003)), disc. review denied
, 359 N.C. 636, 618
S.E.2d 232 (2005) (holding that the trial court did not err by
giving the defendant a sentence that fell within both thepresumptive and aggravated ranges without making findings of
Defendant argues the trial court erred by entering judgment on
the jury's verdict of guilty of taking indecent liberties with a
child because the statute was unconstitutionally applied to
Defendant. Defendant first argues the indictment was insufficient
because it did not specify the location or nature of the acts that
were alleged to violate the statute. However, because Defendant
failed to raise any constitutional objection to the indictment at
trial, we do not address this argument. See State v. Lloyd
N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (recognizing that
"[c]onstitutional issues not raised and passed upon at trial will
not be considered for the first time on appeal."). Nevertheless,
even assuming arguendo
that Defendant preserved this challenge to
the indictment, our Court has repeatedly upheld the
constitutionality of short form indictments for the charge of
taking indecent liberties with a child. See State v. Miller
N.C. App. 450, 457, 528 S.E.2d 626, 630 (2000) (citing State v.
, 130 N.C. App. 692, 507 S.E.2d 42, cert. denied
, 349 N.C.
531, 526 S.E.2d 470 (1998)) (recognizing that an indictment which
charges a violation of N.C.G.S. § 14-202.1 by using the statutory
language is sufficient and does not need to allege the evidentiary
basis for the charge). Therefore, we hold the trial court did not
Defendant also argues the jury's verdict of guilty of takingindecent liberties with a child was fatally defective because it
was ambiguous. Defendant argues the jury verdict was not unanimous
because the verdict sheet "fail[ed] to indicate at what time or at
what date or at what place such an offense may have taken place."
However, our Supreme Court recently revisited this issue in State
, 360 N.C. 368, 627 S.E.2d 609 (2006). Our Supreme
Court recognized that "[u]nlike a drug trafficking statute, which
may list possession and transportation, entirely distinct criminal
offenses, in the disjunctive, the indecent liberties statute simply
forbids 'any immoral, improper, or indecent liberties.'" Id.
374, 627 S.E.2d at 612. "Thus, 'even if some jurors found that the
defendant engaged in one kind of sexual misconduct, while others
found that he engaged in another, "the jury as a whole would
unanimously find that there occurred sexual conduct within the
ambit of 'any immoral, improper, or indecent liberties.'"'" Id.
(quoting State v. Lyons
, 330 N.C. 298, 305-06, 412 S.E.2d 308, 313
(1991) (quoting State v. Hartness
, 326 N.C. 561, 565, 391 S.E.2d
177, 179 (1990))). Our Supreme Court held: "Under Hartness
, a defendant may be unanimously convicted of indecent
liberties even if: (1) the jurors considered a higher number of
incidents of immoral or indecent behavior than the number of counts
charged, and (2) the indictments lacked specific details to
identify the specific incidents." Lawrence
, 360 N.C. at 375, 627
S.E.2d at 613.
, and Hartness
are indistinguishable from the
present case. Therefore, the jury's verdict was not ambiguous andwas unanimous even though the jurors may have relied on different
acts to convict Defendant of one count of taking indecent liberties
with a child. We overrule this assignment of error.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).
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