State v. Simpson - Case Law

NO. COA14-103

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Wilkes County
No. 11 CRS 53054
BILL RAYMOND SIMPSON

On writ of certiorari, defendant appeals from judgment

entered 19 September 2012 by Judge R. Stuart Albright in Wilkes

County Superior Court. Heard in the Court of Appeals 3 June

2014.

Attorney General Roy Cooper, by Assistant Attorney General
Laura Edwards Parker, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jillian C. Katz, for defendant.

ELMORE, Judge.

Bill Raymond Simpson (“defendant”) appeals his conviction

of being a registered sex offender unlawfully on premises used

by minors in violation of N.C. Gen. Stat. § 14-208.18(a) (2013).

Defendant’s appeal is before us on writ of certiorari.

Defendant argues that his indictment is fatally defective and

that the trial court erred in denying his motion to dismiss.

After careful review, we hold that defendant’s indictment was

not fatally defective. However, we agree that the trial court
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erred in denying defendant’s motion to dismiss. Accordingly, we

reverse the order denying defendant’s motion to dismiss.

I. Background

Defendant is a registered sex offender based on his

convictions for second degree rape and felony incest in 1997.

Consequently, defendant is to maintain registration on the North

Carolina Sex Offender and Public Protection Registry. The

State’s evidence at trial tended to establish the following: On

2 September 2011, defendant went to Cub Creek Park in

Wilkesboro, North Carolina (“the park” or “Cub Creek Park”).

The park is a public park in Wilkesboro that features walking

trails, ball fields, swings, jungle gyms, picnic areas, a dog

park, a stream, a community garden, and batting cages.

Defendant was sitting on a bench within the premises of the

park, facing and in close proximity to the park’s batting cage

and ball field. Sergeant Kenneth Coles (“Sergeant Coles”), a

neighbor of defendant and off-duty police officer with the

Wilkesboro Police Department, saw defendant. Because he knew

that defendant was a registered sex offender, Sergeant Coles

notified the police department of defendant’s presence near the

batting cage. Major Steve Dowell (“Major Dowell”) responded to

the call and arrived at the park, where he placed defendant
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under arrest for violating N.C. Gen. Stat. § 14-208.18(a)(2).

Section 14-208.18(a)(2) prohibits registered sex offenders from

being “[w]ithin 300 feet of any location intended primarily for

the use, care, or supervision of minors when the place is

located on premises that are not intended primarily for the use,

care, or supervision of minors[.]”

Defendant was indicted by superseding indictment for

violating N.C. Gen. Stat. § 14-208.18(a)(2) and attaining

habitual felon status on 23 July 2012. The matter came on for

trial on 19 September 2012. The jury found defendant guilty of

violating N.C. Gen. Stat. § 14-208.18(a)(2), and the State

dismissed the habitual felon charge. The trial court sentenced

defendant to a minimum of 19 months to a maximum of 23 months

imprisonment. Defendant now appeals.

II. Analysis

A. Defective Indictment

Defendant argues that the trial court lacked subject matter

jurisdiction over this case because the indictment charging him

with violating N.C. Gen. Stat. § 14-208.18(a) failed to allege

an essential element of the offense—that the batting cages and

ball field were located on a premise not intended primarily for

the use, care, or supervision of minors. We disagree.
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Pursuant to N.C. Gen. Stat. § 15A-924(a)(5)(2013), a valid

indictment must contain “[a] plain and concise factual statement

in each count which, without allegations of an evidentiary

nature, asserts facts supporting every element of a criminal

offense and the defendant’s commission thereof with sufficient

precision clearly to apprise the defendant or defendants of the

conduct which is the subject of the accusation.” An indictment

“is sufficient in form for all intents and purposes if it

expresses the charge against the defendant in a plain,

intelligible, and explicit manner.” N.C. Gen. Stat. § 15-153

(2013). “[T]he purpose of an indictment . . . is to inform a

party so that he may learn with reasonable certainty the nature

of the crime of which he is accused[.]” State v. Coker, 312

N.C. 432, 437, 323 S.E.2d 343, 347 (1984). The trial court need

not subject the indictment to “hyper technical scrutiny with

respect to form.” In re S.R.S., 180 N.C. App. 151, 153, 636

S.E.2d 277, 280 (2006). “The general rule in this State and

elsewhere is that an indictment for a statutory offense is

sufficient, if the offense is charged in the words of the

statute, either literally or substantially, or in equivalent

words.” State v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920

(1953).
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“[W]here an indictment is alleged to be invalid on its

face, thereby depriving the trial court of [subject matter]

jurisdiction, a challenge to that indictment may be made at any

time, even if it was not contested in the trial court.” State

v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). This

Court “review[s] the sufficiency of an indictment de novo.”

State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409,

cert. dismissed, 366 N.C. 405, 735 S.E.2d 329 (2012). “An

arrest of judgment is proper when the indictment ‘wholly fails

to charge some offense cognizable at law or fails to state some

essential and necessary element of the offense of which the

defendant is found guilty.’” State v. Kelso, 187 N.C. App. 718,

722, 654 S.E.2d 28, 31 (2007) (quoting State v. Gregory, 223

N.C. 415, 418, 27 S.E.2d 140, 142 (1943)). “The legal effect of

arresting the judgment is to vacate the verdict and sentence of

imprisonment below, and the State, if it is so advised, may

proceed against the defendant upon a sufficient bill of

indictment.” State v. Marshall, 188 N.C. App. 744, 752, 656

S.E.2d 709, 715 (2008) (quoting State v. Fowler, 266 N.C. 528,

531, 146 S.E.2d 418, 420 (1966)).
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The superseding indictment, by which the Grand Jury charged

defendant with violating N.C. Gen. Stat. § 14-208.18(a), alleged

that

the defendant named above unlawfully,
willfully and feloniously did as a person
required by Article 27A of Chapter 14 of the
General Statutes to register as a sex
offender and having been previously
convicted of an offense in Article 7A of
Chapter 14 of the General Statutes, be
within 300 feet of a location intended
primarily for the use, care, or supervision
of minors, to wit: a batting cage and ball
field of Cub Creek Park located in
Wilkesboro, North Carolina.

In North Carolina, it is unlawful for a person required to

knowingly be in any of the following locations:

(1) On the premises of any place intended
primarily for the use, care, or supervision
of minors, including, but not limited to,
schools, children’s museums, child care
centers, nurseries, and playgrounds.

(2) Within 300 feet of any location
intended primarily for the use, care, or
supervision of minors when the place is
located on premises that are not intended
primarily for the use, care, or supervision
of minors, including, but not limited to,
places described in subdivision (1) of this
subsection that are located in malls,
shopping centers, or other property open to
the general public.

(3) At any place where minors gather for
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regularly scheduled educational,
recreational, or social programs.

N.C. Gen. Stat. § 14-208.18(a) (2013) (emphasis added).

Here, both the original indictment and the superseding

indictment charged defendant with violating N.C. Gen. Stat. §

14-208.18(a) but neither specified whether it was under

subsection (1), (2), or (3). Quoting State v. Daniels in his

brief, defendant calls our attention to the fact that the three

subsections of N.C. Gen. Stat. § 14-208.18(a) present “three

distinct scenarios in which a defendant may unlawfully be on

certain premises[,]” thus creating three distinct crimes. State

v. Daniels, ___ N.C. App. ___, ___, 741 S.E.2d 354, 360 (2012),

appeal dismissed, review denied, 366 N.C. 565, 738 S.E.2d 389

(2013). Defendant notes that (a)(1) prohibits an offender from

being in a place intended primarily for the use, care, or

supervision of minors. It does not impute a 300 feet

requirement. Alternatively, (a)(2) prohibits an offender from

being within 300 feet of any location intended primarily for the

use, care, or supervision of minors when the place is located on

premises that are not intended primarily for the use, care, or

supervision of minors. Defendant contends that the indictment

is “confusing” as “it reads like it is either alleging (a)(1)
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incorrectly, imputing a 300 foot radius where that is not an

element of the offense, or simply incompletely alleging (a)(2)”

because the park is not defined as a location not intended

primarily for the use, care, or supervision of minors. Given

that the indictment “does not plainly or lucidly reveal the

crime [defendant] was accused of committing[,]” defendant argues

that it “is fatally defective and the judgment entered thereon

must be vacated.”

We are not persuaded. It is clear from the indictment that

defendant was charged with violating N.C. Gen. Stat. § 14—

208.18(a)(2). The essential elements of the offense defined in

N.C. Gen. Stat. § 14—208.18(a)(2) are that the defendant was

knowingly (1) within 300 feet of any location intended primarily

for the use, care, or supervision of minors when the place is

located on premises that are not intended primarily for the use,

care, or supervision of minors and (2) at a time when he or she

was required by North Carolina law to register as a sex offender

based upon a conviction for committing an offense enumerated in

Article 7A of Chapter 14 of the North Carolina General Statutes

or an offense involving a victim who was under the age of

sixteen at the time of the offense.
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Notably, only one of three subsections of N.C. Gen. Stat. §

14-208.18(a) imputes a 300 feet requirement, and that is (a)(2).

Here, the indictment alleges that defendant, who is a person

required to register as a sex offender, came “within 300 feet of

a location intended primarily for the use, care, or supervision

of minors, to wit: a batting cage and ball field[.]” It also

specifies that ball fields and batting cages were located in Cub

Creek Park in Wilkesboro. The inclusion of the language

“within 300 feet” should have been sufficient to put defendant

on notice that he was charged with violating N.C. Gen. Stat. §

14-208.18(a)(2). Additionally, because the indictment also

alleged that defendant was a person required by Article 27A of

Chapter 14 to register as a sex offender and named Cub Creek

Park as the location where the purported offense occurred, we

hold that defendant was sufficiently apprised of the nature of

the conduct which was the subject of the accusation. See N.C.

Gen. Stat. § 15A-924(a)(5) (2013). The fact that the indictment

did not allege that the park was a location not primarily

intended for the use, care, or supervision of minors does not

render the indictment fatally defective on these facts.

Accordingly, the indictment was sufficient to confer subject

matter jurisdiction upon the trial court.
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B. Motion to Dismiss

Defendant next asserts that the trial court erred in

denying his motion to dismiss. Defendant specifically argues

that the State failed to present substantial evidence that the

batting cages and ball fields constituted locations that were

primarily intended for use by minors. We agree.

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). To defeat a motion to dismiss, the State

must present “substantial evidence (1) of each essential element

of the offense charged, or of a lesser offense included therein,

and (2) of defendant’s being the perpetrator of such offense.”

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000).

“Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” State

v. Denny, 361 N.C. 662, 664-65, 652 S.E.2d 212, 213 (2007)

(citation and quotation marks omitted). In considering a motion

to dismiss, the court must look at the evidence in the light

most favorable to the State. Id. at 665, 652 S.E.2d at 213. “A

motion to dismiss should be granted, however, when the facts and

circumstances warranted by the evidence do no more than raise a

suspicion of guilt or conjecture since there would still remain
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a reasonable doubt as to defendant’s guilt.” State v. McDowell,

217 N.C. App. 634, 636, 720 S.E.2d 423, 424 (2011) (quotation

marks and citation omitted).

Pursuant to § 14-208.18(a)(2), the State has the burden to

present substantial evidence that defendant: (1) knowingly was

within 300 feet of a location intended primarily for the use,

care, or supervision of minors that is part of a place which is

not intended for the use, care, or supervision of minors,

including property open to the general public; and (2) at a time

when he was required to register as a sex offender based on a

conviction for any offense in Article 7A of Chapter 14 of the

North Carolina General Statutes or any offense where the victim

of the offense was under the age of 16 years at the time of the

offense. (emphasis added). Defendant does not challenge the

State’s evidence as to the second element; his only contention

is that the State failed to present substantial evidence that

the batting cages and ball field were primarily intended for use

by minors.

Section (a)(1) gives guidance to help determine what

qualifies as a location “intended primarily” for minors,

mentioning places “including, but not limited to, schools,

children’s museums, child care centers, nurseries, and
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playgrounds.” N.C. Gen. Stat. § 14-208.18(a)(1). While batting

cages and ball fields may be used by minors, they are not

intended primarily for minors absent special circumstances shown

by the State. Here, the State failed to offer substantial

evidence that the batting cages and ball field in the park were

primarily intended for children. Officer Kerr testified that

“[m]y stepson plays baseball at Cub Creek Park. They also have

swing sets and playground type equipment there.” Kerr’s

testimony regarding the fact that the park includes playground

equipment is irrelevant since defendant was not charged with

being within 300 feet of that equipment, and we have no way of

knowing where that equipment is in reference to the benches by

the ball field where defendant was found. Furthermore, Kerr’s

testimony that his stepson plays at Cub Creek Park has no

bearing on whether the ball field and batting cages were

“intended primarily” for use by minors because it is unclear how

old his stepson is and whether he is even a minor. In fact, the

trial court pointed this out to the State, noting that the

State’s witnesses failed to “specify how old their children

were. You didn’t say whether they were minors, whether they

were adults or whether they were children. But they have to be
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minors, they just can’t be children. If they’re 19, they’re not

minors.”

Sergeant Coles also testified about who uses the batting

cages and ball field, noting that “[y]ou have several ball

fields where very minor small children play, as well as

teenagers and even adults[.]” Moreover, Sergeant Coles claimed

that his son plays there on occasion. However, once again, the

State elicited no evidence as to how old Sergeant Coles’s son

was at the time of trial. Furthermore, Coles’s testimony that

not only children play at the park but also “teenagers and even

adults” contravenes the State’s assertion that the ball field

and batting cages were intended primarily for minors. Sergeant

Coles’s testimony that on the date of the offense there were

some “young kids” in a line for the batting cage, estimated at

eight to thirteen years old, similarly fails to establish that

the location was intended primarily for use by minors. Based on

the State’s logic, the entire park would be off limits—as would

countless other municipal sites which are visited by both adults

and children that are sometimes used by minors as well as

adults.

In sum, the testimony of Deputy Kerr and Sergeant Coles did

not amount to evidence that the ball field and batting cages of
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the park were intended primarily for the use of minors.

Instead, at most, their testimony established that these places

were sometimes used by minors. Thus, we hold that the State’s

evidence rises only to a level of conjecture or suspicion that

the batting cages and ball field were locations primarily

intended for the use, care, and supervision of minors and we

would reverse the order denying defendant’s motion to dismiss.

III. Conclusion

We conclude that the indictment returned against defendant

for the purpose of charging him with violating N.C. Gen. Stat. §

14-208.18(a)(2) was sufficient to confer subject matter

jurisdiction upon the trial court. However, the State failed to

present substantial evidence that the ball field and batting

cages of the park were “intended primarily for the use, care, or

supervision of minors,” as required by N.C. Gen. Stat. § 14-

208.18(a)(2). Accordingly, we reverse the order denying

defendant’s motion to dismiss.

Reversed.

Judges McGEE and HUNTER, Robert C., concur.