State v Sims

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NO. COA11-187 NORTH CAROLINA COURT OF APPEALS Filed: 4 October 2011 STATE OF NORTH CAROLINA v. Buncombe County No. 09 CRS 60008 CHRISTOPHER MICHAEL SIMS Appeal by defendant from judgment and order requiring defendant to enroll in satellite-based monitoring both entered 11 August 2010 by Judge County Superior Court. Jesse B. Caldwell, III in Buncombe Heard in the Court of Appeals 31 August 2011. Attorney General Roy Cooper, by Assistant Attorney General R. Kirk Randleman, for the State Robert W. Ewing, for defendant-appellant. STEELMAN, Judge. Where defendant failed to raise constitutional arguments at trial, we will not review them on appeal. presented that defendant incidents at Target individual a had a was store similar involved with the experience Where evidence was in three victim, with that separate another defendant, and defendant admitted to having an obsession with women s legs, the -2trial court did not err in holding that the State had presented sufficient evidence for the charge of indecent liberties with a child to be submitted to the jury. N.C. Gen. Stat. § 14-208.40A conferred subject matter jurisdiction upon the trial court to consider whether defendant should be enrolled in satellite-based monitoring. Defendant qualified for lifetime satellite-based monitoring because he committed a sexually violent offense as defined in N.C. Gen. Stat. § 14-208.6(5), and was a recidivist. I. Factual and Procedural History On 20 July 2009, C.G. and her mother were shopping in a Target store. aisle when she C.G. was looking at Band-Aids on the clearance noticed Christopher Michael Sims (defendant) crouched down a couple of feet away looking at her legs. C.G. began to feel uneasy and left and went to another aisle with her mother. her belt Defendant approached her again, fell into her, touched area, and wrapped his hands around her. After defendant grabbed C.G. he immediately let go and said Sorry, Sorry. As defendant walked away, C.G. told her mother that defendant had been following her, and C.G. and her mother left the area and went to another aisle. Defendant approached C.G. a third time as she and her mother looked for toothpaste, and kneeled down approximately six to eight inches from her legs. -3At this point C.G. s mother placed herself between C.G. defendant. Defendant left the area. sought a out manager to report defendant leave the store. called the police, Target s security videotapes. As C.G. and her mother these incidents, they saw After speaking with the manager, C.G. and her mother left the store. Target, and and They later returned to identified defendant from On 1 February 2010, defendant was indicted for taking indecent liberties with a child relating to the 20 July 2009 incident. At trial, Amy McIllwain (McIllwain) testified she encountered defendant at a Target store in the summer of 2009. McIllwain was leaving Target walking along the sidewalk when defendant pulled up next to her in his car, and asked if he could pay her a compliment. He then stated that she had the best looking legs he had seen all day. McIllwain was concerned that if she went to her car defendant might follow her, so she went into another store. Defendant followed her into the store and approached McIllwain several times inside the store, finally cornering her and asking her if he could hug her legs. At that point McIllwain told defendant to back off, and he left the store. McIllwain saw defendant s car the next day, took picture of his license plate, and reported the incidents a to -4police. McIllwain also identified defendant from a photo located on a government-regulated website. Anne Benjamin, a detective with the Buncombe County Sheriff s Office, testified that she interviewed defendant as part of her investigation of the incident involving C.G. During this interview, defendant stated that he had admitted to his mom, his dad, and his wife that he had an obsession with women s legs. On 11 August 2010, a jury found defendant guilty of taking incident liberties with a child. active term of nineteen to Defendant was sentenced to an twenty-three Based upon defendant being a months imprisonment. recidivist, he was required to enroll in satellite-based monitoring (SBM) for the remainder of his natural life, upon his release from prison. Defendant appeals. II. Motions to Dismiss In his first argument, defendant contends the trial court s denial of his motions to dismiss the charge of indecent liberties with a child at the close of the State s evidence and at the close of all the evidence violated his rights pursuant to the Fifth Amendment of the United States Constitution, as applied to the States through the Fourteenth Amendment thereto, -5and also pursuant to Article I, Section 19 of the North Carolina Constitution. We disagree. A. The North Constitutional Argument Carolina Supreme Court has held that [a] constitutional issue not raised at trial will generally not be considered for the first time on appeal. Because defendant did not raise [this] constitutional issue[] below, we decline to address [it] now. State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (quotation and citation omitted), cert. denied, ___ U.S. ___, 176 L. Ed. 2d 568 (2010). The constitutional portion of this argument is dismissed. B. Non-Constitutional Argument Defendant s non-constitutional argument focuses entirely upon whether the State produced sufficient evidence that the conduct was for the purpose of arousing or gratifying sexual desire, an element of the offense of taking indecent liberties with a child under N.C. Gen. Stat. § 14-202.1 (2009). [T]hat the action was for the purpose of arousing or gratifying sexual desire, may be inferred from the evidence of the defendant s actions. 580 (1987). State v. Rhodes, 321 N.C. 102, 105, 361 S.E.2d 578, In reviewing the denial of a motion to dismiss in a criminal case, we must view the evidence in the light most -6favorable to the State, giving the State the benefit of all reasonable inferences. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (citing State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415 (1991)). Considering the evidence in the light most favorable to the State, there were three separate incidents at the Target store: (1) defendant was crouched down looking at the juvenile s legs; (2) defendant fell into the juvenile, wrapping his hands around her; and (3) defendant kneeled down, six to eight inches away from the juvenile s legs. The State also presented the testimony of McIllwain, pursuant to Rule 404(b) of the Rules of Evidence which was relevant to defendant s intent and purpose. Finally, the testimony of Detective Benjamin disclosed that defendant admitted to having an obsession with women s legs. appeal, defendant does not attack the admissibility of On the testimony of either McIllwain or Detective Benjamin. Defendant relies upon this Court s decision in State v. Brown, 162 N.C. App. 333, 590 S.E.2d 433 (2004) to support his argument that the State failed to produce sufficient evidence that the conduct in question was for the purpose of arousing or gratifying sexual desire. The defendant in Brown provided the victim services with post-discharge following her stay at a -7youth shelter. Defendant contacted the victim by phone. A taped conversation revealed inappropriate comments by defendant, including how she looked, that he would like to see her, his feelings towards her, and how he perceived her feelings towards him. Id. at 335, 590 S.E.2d 435. We held that the conversations were neither sexually graphic and explicit nor were they accompanied by other actions tending to show defendant s purpose was sexually motivated. [N]othing in the record indicate[d] defendant s actions emanated from a desire or purpose to arouse or gratify sexual desire. Id. at 338, 590 S.E.2d at distinguishable from Brown. defendant s three interactions with obsession conclusion with that 436-37. McIllwain, with C.G. case This engaged in and admitted defendant legs. defendant instant is As discussed above, in addition to interactions women s The to leads this to multiple having the conduct purpose of arousing and gratifying sexual desire. an logical for the In Brown there was no evidence that defendant had engaged in similar bad acts in the past, or that he had any particular obsession with young girls. Based sufficient upon all evidence of the above-cited presented by the testimony, State of there was defendant s -8conduct from which the jury could infer that this conduct was for the purpose of arousing or gratifying sexual desire. This argument is without merit. III. Subject Matter Jurisdiction In his second argument, defendant contends the trial court did not have subject matter jurisdiction to enter the order requiring defendant to enroll in the SBM program because no complaint was filed and no summons was issued. The North Bowditch, 364 Carolina N.C. 335, Supreme 352, Court 700 S.E.2d We disagree. held 1, in, 13 State (2010), v. stay denied, ___ N.C. ___, 703 S.E.2d 151 (2010), that [t]he SBM program [] was enacted with the intent to create a civil, regulatory scheme to protect citizens of our state from the threat posed offenders. by the recidivist tendencies of convicted sex Defendant argues that since no summons was issued in accordance with North Carolina Rules of Civil Procedure 3 and 4, the trial court had no jurisdiction to enter imposing SBM. Jurisdiction is [t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it. Black's Law Dictionary 869 (8th ed.2004). The court must have subject matter jurisdiction, or [j]urisdiction over the nature of the case and the type of relief sought, in order to an order -9decide a case. Id. at 870. A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity. Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964). The General Assembly within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State. Bullington v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941). Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction. Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982). State v. Wooten, 194 N.C. App. 524, 527, 669 S.E.2d 749, 750 (2008), disc. review denied and cert. dismissed, 363 N.C. 138, 676 S.E.2d 308 (2009). The trial court exercised its jurisdiction pursuant to and in accordance with the procedures set forth in N.C. Gen. Stat. § 14-208.40A (2009). N.C. Gen. Stat. § 14-208.40A requires that when an offender is convicted of a reportable conviction under N.C. Gen. Stat. § 14-208.6(4) during the sentencing phase, the district attorney shall present to the court evidence relating to the offender s qualification for SBM, the offender shall have -10an opportunity to refute this evidence, and if the court finds the defendant meets the qualifications for SBM the court shall order the offender to enroll in SBM. The trial court exercised the jurisdiction conferred upon it by N.C. Gen. Stat. § 14208.40A, and followed the procedures set forth therein. This argument is without merit. IV. Satellite-Based Monitoring In his third and fourth arguments, defendant contends that the trial court s finding of fact number 1(a) in the Judicial Findings and convicted of Order a for Sex reportable Offenders; conviction that defendant was because defendant was convicted of an offense against a minor was not supported by competent evidence, and the trial court s order and conclusion of law requiring defendant to enroll in SBM was not supported by the competent findings of fact. A. We disagree. Standard of Review This Court stated the standard of review for orders as to SBM in State v. Kilby: [w]e review the trial court s findings of fact to determine whether they are supported by competent record evidence, and we review the trial court s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found. -11State v. Singleton, 201 N.C. App. 620, 626, 689 S.E.2d 562, 566 (2010), (quoting State v. Kilby, 198 N.C. App. 363, 366, 679 S.E.2d 430, 432 (2009)), disc. review allowed, 364 N.C. 131, 696 S.E.2d 697 (2010) and disc. review improvidently allowed, 364 N.C. 418, 700 S.E.2d 226 (2010). B. Analysis The trial court made the following oral finding during the SBM hearing, the court having entered judgment in the abovecaptioned action, finds that the defendant - in addition, the court finds that the defendant has reportable conviction under GS 14-208.6. been convicted of a And, Madam Clerk, this will be an offense against a minor . . . . This finding was incorporated into the trial court s order requiring defendant to be enrolled in SBM for his natural life. Box 1(a) was marked on the order finding the defendant to have been convicted of a reportable conviction under N.C. Gen. Stat. § 14-208.6, specifically an offense against a minor under N.C. Gen. Stat. § 14-208.6(1i).1 (Administrative Office of the Courts Form CR615.). 1 The statute number defining an offense against a minor has been changed to N.C. Gen. Stat. § 14-208.6(1m). Further, this statute was amended by 2011 North Carolina General Assembly Session Law 145, House Bill 200. However, this amendment pertained strictly to the way in which the Department -12The State acknowledges that this finding is not supported by the evidence, and argues that the Assistant District Attorney marked the wrong box on the form. The State goes on to argue that the box indicating that defendant committed a sexually violent offense should have been checked. trial court s explicit instructions to the In light of the clerk, set forth above, we hold this argument to be disingenuous. N.C. Gen. Stat. § 14-208.6(1m) defines offense against a minor as: any of the following offenses if the offense is committed against a minor, and the person committing the offense is not the minor s parent: G.S. 14-39 (kidnapping), G.S. 14-41 (abduction of children), and G.S. 14-43.3 (felonious restraint). The term also includes the following if the person convicted of the following is not the minor s parent: a solicitation or conspiracy to commit any of these offenses; aiding and abetting any of these offenses. Defendant s conduct in this case does not fall within the above definition of an offense against a minor. The State further argues that this case is controlled by our decision in State v. Williams, ___ N.C. App. ___, 700 S.E.2d 774 (2010). In that case, we held that the trial court s finding that the offense was an offense against a minor was in of Corrections was referred to, and did not affect the substance of the statute in any way. -13error, and that the defendant s conviction for indecent liberties was instead a sexually violent offense under N.C. Gen. Stat. § 14-208.6(5). held that the trial Based upon this holding, this Court court s order enrolling Defendant in lifetime SBM is supported by necessary findings such that the Order itself is not erroneous. Williams, ___ N.C. App. at ___, 700 S.E.2d at 776. We hold that the instant case is indistinguishable from Williams. The defendant in this case was convicted of indecent liberties. offense The trial court erroneously found that this was an against a minor. As in Williams, the crime of indecent liberties explicitly is a sexually violent offense as defined by N.C. Gen. Stat. § 14-208.6(5). While we question the wisdom of appellate courts engaging in fact-finding we are bound by the indistinguishable holding in Williams. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citations omitted). This argument is without merit. NO ERROR, in part, AFFIRMED, in part. Judges HUNTER, Robert C., and McCULLOUGH concur.

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