Opinion
No. COA10–203–2.
2012-08-7
STATE of North Carolina v. Matthew Lee BECKELHEIMER, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Jill A. Bryan, for the State. Thomas R. Sallenger, for defendant-appellant.
Appeal by defendant from judgments entered on or about 7 August 2009 by Judge D. Jack Hooks, Jr. in Superior Court, Chatham County. Heard in the Court of Appeals 13 September 2010. An opinion was filed on 19 April 2011 granting defendant a new trial. See State v. Beckelheimer, ––– N.C.App. ––––, 712 S.E.2d 216 (2011). The North Carolina Supreme Court, by opinion filed on 14 June 2012, reversed this Court and remanded “for consideration of the remaining issues on appeal.” See State v. Beckelheimer, ––– N.C. ––––, 726 S.E.2d 156 (2012). Attorney General Roy A. Cooper, III, by Assistant Attorney General Jill A. Bryan, for the State. Thomas R. Sallenger, for defendant-appellant.
STROUD, Judge.
This Court in State v. Beckelheimer, ––– N.C.App. ––––, 712 S.E.2d 216 (2011) reversed defendant's convictions and granted defendant a new trial. This Court held that the State's witness “Mr. Branson's testimony should have been excluded” as “the acts as testified to by [him] ... were not sufficiently similar to the crime with which defendant was charged[,]” and there was a reasonably possibility that without this error a different result would have been reached at trial. Id. at ––––, 712 S.E.2d at 220–21. Our North Carolina Supreme Court reversed this decision in State v. Beckelheimer, –––N.C. ––––, 726 S.E.2d 156, and held that “[t]he trial court properly admitted the 404(b) evidence” as the prior acts testified to by Mr. Branson “were sufficiently similar to the charged acts[,]” “the remoteness in time” of the acts testified to by Mr. Branson “was not so significant as to render the prior acts irrelevant as evidence of modus operandi[,]” and “it was not an abuse of discretion for the trial court to determine that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence.” Id. at ––––, 726 S.E.2d at 160–61.
This case comes before this Court on remand for the purpose of deciding the remaining issues not addressed by our opinion in State v. Beckelheimer, –––N.C.App. ––––, 712 S.E.2d 216. In those remaining issues, defendant argues that the trial court erred in denying his motions to dismiss as there was insufficient evidence to establish the charges of (1) first-degree sexual offense, 08–CRS–50128, and (2) the three charges of taking indecent liberties with a child, 08–CRS–50129, 08–CRS3773, and 08–CRS–3774. We will present below pertinent facts to provide context for these remaining substantive issues.
I. Background
On 23 June 2008, defendant was indicted on three counts of taking indecent liberties with a child and one count of statutory sexual offense. On 1 June 2009, defendant in a superseding indictment was indicted for one count of first-degree sexual offense. Defendant was tried on these charges during the 3 August 2009 Criminal Session of Superior Court, Chatham County. The State's evidence tended to show that the minor victim and his mother went to defendant's house in July 2007. In July 2007, defendant was 27 years old and the minor victim was 11 years old. Defendant invited the minor victim into his bedroom to play a video game. The minor victim was sitting on the floor and defendant told the minor victim to get onto the bed “because it was softer.” Once the minor victim was on the bed, defendant climbed on top of the minor victim but “pretended like he was asleep for a little while.” Defendant then held the minor victim down, stuck his hand down the minor victim's pants, unzipped the minor victim's pants, touched the minor victim's penis, and “kissed” the minor victim's penis. The minor victim further testified that defendant had touched him on two prior occasions in the summer of 2007. The minor victim stated that one of those instances involved defendant scratching or rubbing his back, again pretending like he was asleep, and then putting his hand “halfway on [the minor victim's] leg and halfway on [his penis]” while their clothes were on. The second time the minor-victim was playing a video game with defendant in defendant's room, defendant started “rubbing” over the minor-victim's penis while his clothes were on, defendant's mother knocked on the bedroom door, and defendant stopped. The State also put forth testimony regarding interviews of the minor victim from a social worker, child psychologist, and a deputy sheriff, corroborating the minor victim's testimony.
The minor victim's half-brother, age 24 at the time of trial, testified that when he was about 12 years old and defendant was about 16 years old, he would spend the night at defendant's house. He described a series of incidents during which defendant, while pretending to be asleep, touched the witness's genital area outside of his clothes, then proceeded to reach inside his pants to touch his genitals, and performed oral sex on him. At the close of the State's evidence defendant moved to dismiss all of the charges, arguing that the State failed to present sufficient evidence to support these charges. The trial court denied defendant's motion.
Defendant's evidence consisted entirely of his own testimony. Defendant testified that after learning of the minor victim's allegations he was “in complete disbelief.” Defendant testified that he did not “engage in sexual activity with [the minor victim's half-brother] in 1995 or 1996 or at any time [;]” he did not “fondle [the minor victim] in the summer of 2007 or at any time [;]” and he did not “perform oral sex on [the minor victim] on July 28, 2007 or at any time.” At the close of all of the evidence, defendant renewed his motion to dismiss, which was again denied by the trial court.
On 7 August 2009, a jury found defendant guilty of three counts of taking indecent liberties with a child and one count of first-degree sexual offense. The trial court consolidated the three convictions for taking indecent liberties with a child and sentenced defendant to a term of 16 to 20 months imprisonment. The trial court also sentenced defendant to a concurrent term of 192 to 240 months imprisonment for the first-degree sexual offense conviction.
II. Sufficiency of the evidence
Defendant argues that the trial court erred in denying his motions to dismiss for insufficiency of the evidence. We have summarized our review of a trial court's ruling on a motion to dismiss for insufficiency of the evidence as follows:
A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
State v. Johnson, 203 N.C.App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and “the State is entitled to all reasonable inferences which may be drawn from the evidence.” State v. Davis, 130 N.C.App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citation omitted).
....
“Both competent and incompetent evidence must be considered.” State v. Lyons, 340 N.C. 646, 658, 459 S.E.2d 770, 776 (1995).... When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.
See [ State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982) ].
State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455–56, cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
State v. Clowers, ––– N.C.App. ––––, ––––, 720 S.E.2d 430, 434 (2011). We will first address defendant's argument regarding the charge of first-degree sexual offense, 08–CRS–50128.
A. First-degree sexual offense
Defendant argues that the State failed to establish that defendant engaged in a sexual act with the minor victim, an essential element of the charged offense. Specifically, defendant argues that there was insufficient evidence presented by the minor victim's testimony that defendant's “mouth actually made contact with [the minor victim's] penis” to establish that defendant engaged in the sexual act of fellatio with the minor victim.
N.C. Gen.Stat. § 14–27.4 (2007) (a)(1) states that
(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act: (1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim[.]
Defendant only challenges the sufficiency of the State's evidence to establish the first element of this offense, whether he “engag[ed] in a sexual act” with the minor victim. N.C. Gen.Stat. § 14–27.1(4) (2007) defines “sexual act” as “cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.” Fellatio is defined as “any touching of the male sexual organ by the lips, tongue, or mouth of another person.” State v. Johnson, 105 N.C.App. 390, 393, 413 S.E.2d 562, 564,appeal dismissed and disc. review denied, 332 N.C. 348, 421 S.E.2d 158 (1992). The minor victim testified that defendant “kissed” his “wa-wa” or his “thingy [,]” terms used by the minor victim to refer to his penis. The term “kiss” is a commonly used word which means “to touch with the lips[;]” Merriam–Webster's Collegiate Dictionary 688 (11th ed.2003) defendant makes no argument that “kiss” actually has some other meaning as it was used in the minor victim's testimony. The minor victim constantly and repeatedly testified that defendant “kissed” his penis. The minor victim's testimony about this incident further indicated that defendant had placed the minor victim's penis in defendant's mouth: “[defendant] wouldn't let me [leave the room] and then I peed in his mouth.” Viewing this evidence in the light most favorable to the State, we hold that there was substantial evidence from which the jury could infer that defendant's mouth and lips physically touched the minor victim's penis, and that defendant committed the sexual act of fellatio on the minor victim. See Clowers, ––– N.C.App. at ––––, 720 S.E.2d at 434. Therefore, the trial court properly denied defendant's motions as to this charge and defendant's argument is overruled.
B. Indecent liberties with a child
Defendant argues that the minor victim's testimony regarding when defendant touched him was not credible and “was not sufficient to allow a jury to reasonably find that this Defendant committed the offenses of indecent liberties with a minor when and as alleged.” First, we note that in the context of addressing an argument regarding the “sufficiency of the evidence”, our Supreme Court has stated that “it is the province of the jury, not the court, to assess and determine witness credibility.” State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002) (citations omitted), cert. denied,537 U.S. 1133, 154 L.Ed.2d 823 (2003). Therefore, defendant's argument regarding the minor victim's credibility is overruled. We next turn to defendant's second argument regarding the sufficiency of the evidence.
For a conviction of taking indecent liberties with a child, the State must prove that:
(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. Thaggard, 168 N.C.App. 263, 282, 608 S.E.2d 774, 786–87 (2005) (citations omitted); N.C. Gen.Stat. § 14–202.1(a) (2007).
Defendant makes no specific challenge to any of the elements of the offense, only a general argument that the evidence was insufficient. Evidence was presented that at the time of the allegations, in July 2007, defendant was 27 years old and the minor victim was 11 years old, satisfying elements (1), (2), and (4) of the offense. An indecent liberty is any immoral, improper or indecent touching or act by the defendant in the presence of a child for the purpose of arousing or gratifying sexual desire. State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180–81 (1990). “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.” State v. Rhodes, 321 N.C. 102, 105, 361 S .E.2d 578, 580 (1987). Here, the State presented sufficient evidence of these two elements for each of the three charges of taking indecent liberties with a child. As to the charge 08–CRS–50129, regarding allegations of touching inside the minor victim's clothing, the minor victim testified that in the summer of 2007 defendant held the minor victim down, stuck his hand down the minor victim's pants, unzipped the minor victim's pants, and touched the minor victim's penis. As to charges 08–CRS–3773 and 08–CRS–3774, which included allegations of defendant touching the minor victim outside his clothing, the minor victim testified that on two occasions defendant had touched his penis outside his clothing. He testified that defendant pretended like he was scratching or rubbing the minor victim's back, and defendant put his hand “halfway on [the minor victim's] leg and halfway on [his penis]” while their clothes were on. On the second occasion, the minor victim was playing a video game with defendant in defendant's room when defendant started “rubbing” the minor victim's penis while his clothes were on, defendant's mother knocked on the bedroom door, and defendant stopped. The minor victim's testimony regarding these incidents was corroborated by testimony regarding interviews with the minor victim from the child psychologist, the deputy sheriff, and the social worker. Considering this evidence in the light most favorable to the State, we hold that there was substantial evidence to send these charges to a jury and the trial court did not error in denying defendant's motions to dismiss for insufficiency of the evidence. See Clowers, ––– N.C.App. at ––––, 720 S.E.2d at 434. Defendant's argument is overruled.
For the foregoing reasons, we find no error in defendant's trial.
NO ERROR. Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).