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
register as a sex offender under Chapter 14, Article 27A 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.