State v. Sims

720 S.E.2d 398, 216 N.C. App. 168, 2011 N.C. App. LEXIS 2157
CourtCourt of Appeals of North Carolina
DecidedOctober 4, 2011
DocketNo. COA11-187
StatusPublished
Cited by4 cases

This text of 720 S.E.2d 398 (State v. Sims) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sims, 720 S.E.2d 398, 216 N.C. App. 168, 2011 N.C. App. LEXIS 2157 (N.C. Ct. App. 2011).

Opinion

STEELMAN, Judge.

Where defendant failed to raise constitutional arguments at trial, we will not review them on appeal. Where evidence was presented that defendant was involved in three separate incidents at a Target store with the victim, that another individual had a similar experience with defendant, and defendant admitted to having an obsession with women’s legs, the trial 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. C.G. was looking at Band-Aids on the clearance aisle when she 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. Defendant approached her again, fell into her, touched her belt 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 [170]*170that 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. At this point C.G.’s mother placed herself between C.G. and defendant. Defendant left the area. As C.G. and her mother sought out a manager to report these incidents, they saw defendant leave the store. After speaking with the manager, C.G. and her mother left the store. They later returned to Target, called the police, and identified defendant from Target’s security videotapes. On 1 February 2010, defendant was indicted for taking indecent liberties with a child relating to the 20 July 2009 incident.

At trial, Amy Mclllwain (Mclllwain) testified she encountered defendant at a Target store in the summer of 2009. Mclllwain 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. Mclllwain 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 Mclllwain several times inside the store, finally cornering her and asking her if he could hug her legs. At that point Mclllwain told defendant to back off, and he left the store. Mclllwain saw defendant’s car the next day, took a picture of his license plate, and reported the incidents to police. Mclllwain 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. Defendant was sentenced to an active term of nineteen to twenty-three months imprisonment. Based upon defendant being a 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.

[171]*171II. 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, and also pursuant to Article I, Section 19 of the North Carolina Constitution. We disagree.

A. Constitutional Argument

The North 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.” State v. Rhodes, 321 N.C. 102, 105, 361 S.E.2d criminal case, “we must view the evidence in the light most favorable 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 Mclllwain, pursuant to Rule 404(b) of the Rules of Evidence which was relevant to defendant’s intent and purpose.

[172]*172Finally, the testimony of Detective Benjamin disclosed that defendant admitted to having an obsession with women’s legs. On appeal, defendant does not attack the admissibility of the testimony of either Mclllwain 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 with post-discharge services following her stay at a youth 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.

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Cite This Page — Counsel Stack

Bluebook (online)
720 S.E.2d 398, 216 N.C. App. 168, 2011 N.C. App. LEXIS 2157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sims-ncctapp-2011.