State v. SoutherlandÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1134
Filed: 2 July 2019
New Hanover County, No. 17 CRS 51701
STATE OF NORTH CAROLINA
v.
EDWARD HAMILTON SOUTHERLAND
Appeal by defendant from judgment entered 21 February 2018 by Judge
Richard Kent Harrell in New Hanover County Superior Court. Heard in the Court
of Appeals 10 April 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Sherri Horner
Lawrence, for the State.
Sarah Holladay for defendant-appellant.
BRYANT, Judge.
Where the evidence, when taken in the light most favorable to the State, was
sufficient to show defendant attempted to engage in indecent liberties with a minor
child, the trial court did not err in denying defendant’s motion to dismiss.
On 21 February 2018, defendant Edward Hamilton Southerland, an elderly
man, was tried by a jury and convicted in New Hanover County Superior Court before
the Honorable R. Kent Harrell, Judge presiding, on the charge of taking indecent
liberties with a child, eleven-year-old A.G.
STATE V. SOUTHERLAND
Opinion of the Court
The State presented evidence that A.G. and her grandmother went to
University Arms Apartments to visit a relative. Defendant, who lived in the
apartment across from A.G.’s relative, frequently interacted with A.G. and her
grandmother, when they came to visit the relative.
On 27 February 2017, defendant gave A.G.’s grandmother a sealed envelope
and directed her to deliver it to A.G. A.G.’s name was written on the front of the
envelope. In the letter, defendant stated to A.G.:
Dear [A.G.],
Have you ever been offered something and not followed up
on “it,” only to wonder what would have happened “if” I
had? That’s how I have felt about the three balloons you
gave me for my birthday, last year.
When you moved, every day I think of you and those
balloons. I miss you so much, yet the only thing I have are
my memories of you. That makes me feel like the lonely old
man that I am. I don’t want to feel that way and the only
thing that makes me feel young and alive is to wonder what
“it” would be like to have sex with you. I’m within sight of
being seventy years old and in good health. The only thing
I need is a very pretty girl who knows me and likes me.
Therefore, the only girl I could possibly like is you.
Defendant wrote at the bottom of the letter to A.G., “[p]lease do me the honor
of having sex with me and help me to feel young again. Love, Mr. Ed[.]”
The next day, A.G.’s grandmother read the letter and immediately called the
police. Detective Justin Ovaska of the Wilmington Police Department read the letter
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STATE V. SOUTHERLAND
Opinion of the Court
and went to defendant’s apartment where defendant admitted that he wrote the
letter to A.G.
At the close of the State’s evidence, defendant moved to dismiss arguing that
the State did not present substantial evidence that he was actually or constructively
in the presence of A.G. Defendant’s motion was denied. Defendant took the stand
and testified that he “was so tired and lonely from trying to get help [for his post-
traumatic stress disorder] that [he] just sat down and wrote [A.G.] a letter.” After
defendant rested his case, he renewed his motion to dismiss which the trial court
denied.
Defendant was found guilty of taking indecent liberties with a child. The trial
court sentenced defendant in accordance with the jury verdict, and defendant was
ordered to register as a sex offender for thirty years. On 22 February 2018, defendant
filed his notice of appeal.
_________________________________________________________
On appeal, defendant argues the trial court erred by denying his motion to
dismiss the charge of indecent liberties because the State did not present substantial
evidence to support that he was “with” A.G. or that he took steps beyond mere
preparation to complete the act. After careful consideration, we disagree.
“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). “Under a de novo
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Opinion of the Court
review, the court considers the matter anew and freely substitutes its own judgment
for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d
290, 294 (2008) (quotation marks omitted).
When a defendant moves for dismissal, the trial court must
determine whether there is substantial evidence of each
essential element of the offense charged (or a lesser offense
included therein), and of the defendant being the one who
committed the crime. If that evidence is present, the
motion to dismiss is properly denied. Substantial evidence
is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
In ruling on a motion to dismiss, the evidence must be
considered by the court in the light most favorable to the
State, and the State is entitled to every reasonable
inference to be drawn from the evidence. Contradictions
and discrepancies must be resolved in favor of the State,
and the defendant’s evidence, unless favorable to the State,
is not to be taken into consideration. All evidence actually
admitted, both competent and incompetent, which is
favorable to the State must be considered
State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387–88 (1984) (internal citations
and quotation marks omitted).
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy [it] beyond a reasonable doubt that the
defendant is actually guilty.
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STATE V. SOUTHERLAND
Opinion of the Court
State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000) (internal citations and
quotation marks omitted).
In the instant case, defendant was indicted for taking indecent liberties with a
child in violation of section 14-202.1(a)(1) of our General Statutes. To be convicted of
taking indecent liberties with a child: 1) the defendant must be at least sixteen years
old, 2) the child must be under the age of sixteen, and 3) the defendant is at least five
years older than the child in question. N.C. Gen. Stat. § 14-202.1(a) (2017).
Additionally, a defendant is guilty of taking indecent liberties with a child under
subsection (a)(1) if he “[w]illfully takes or attempts to take any immoral, improper, or
indecent liberties with any child of either sex under the age of 16 years for the purpose
of arousing or gratifying sexual desire[.]” Id. § 14-202.1(a)(1).
As defendant was convicted for indecent acts by delivery of a letter, our
analysis, in this case, is controlled by State v. McClary, 198 N.C. App. 169, 173, 679
S.E.2d 414, 417 (2009). In McClary, the defendant delivered a sexually explicit letter
to a fifteen-year-old requesting to have sex, and this Court considered whether the
delivery of the letter with sexual language constituted a willful taking, or the attempt
to take, indecent liberties with a child to withstand a motion to dismiss. This Court
explained that:
[i]ndecent liberties are defined as such liberties as the
common sense of society would regard as indecent and
improper. Neither a completed sex act nor an offensive
touching of the victim are required to violate the
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Opinion of the Court
statute. This Court has specifically rejected the argument
that the utterance of ‘mere words,’ no matter how
reprehensible, does not constitute the taking of an indecent
liberty with a child.
The State is required to show that the action by the
defendant was for the purpose of arousing or gratifying
sexual desire. [A] variety of acts may be considered
indecent and may be performed to provide sexual
gratification to the actor. Moreover, the variety of acts
included under the statute demonstrate that the scope of
the statute’s protection is to encompass more types of
deviant behavior and provide children with broader
protection than that available under statutes proscribing
other sexual acts.
Id. at 173–74, 679 S.E.2d at 417–18 (emphasis added) (internal citations and
quotation marks omitted). This Court held that the State presented substantial
evidence and stated, the “[d]efendant’s actions of overtly soliciting sexual acts from
[the victim] through the sexually explicit language contained in the letter [fell] within
the broad category of behavior that the common sense of society would regard as
indecent and improper.” Id. at 174, 679 S.E.2d at 418.
Similarly, the delivery of a letter in McClary ––the act found to be in violation
of the statute––is indistinguishable as a matter of law from the act in the instant
case. Here, the State’s evidence established that defendant, who was sixty-nine years
old, wrote a letter to A.G., an eleven-year-old, requesting sex to make him “feel young
again” and attempted to deliver the letter to A.G. through her grandmother. A.G.’s
grandmother testified that the sealed envelope from defendant was addressed to A.G.
and that defendant specifically asked her to give the letter to A.G. Based on the
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STATE V. SOUTHERLAND
Opinion of the Court
evidence, we conclude that an attempt to carry out defendant’s ultimate desired act–
–having sex with A.G.––was made upon delivery of the letter.
We mirror the sentiments of the McClary Court in finding that “the completion
of defendant’s ultimate desired act, [i.e.,] having sexual intercourse and oral sex [with
the victim], was not required in order to allow the jury to reasonably infer that
defendant’s acts of writing and delivering the letter [to the victim] were for the
purpose of arousing or gratifying sexual desire.” Id. at 174, 679 S.E.2d at 418; see
also N.C.G.S. § 14-202.1 (attempts to take as well as a completed act of taking
indecent liberties with children are punishable the same by law). We recognize that
had A.G.’s grandmother not opened the letter and called the police, defendant’s letter
would have been successfully delivered to his intended recipient, A.G., and thus as in
McClary, the evidence was sufficient to allow the jury to reasonably infer that
defendant acted beyond mere words by delivering the letter expressing his intent to
gratify his sexual desire.
Defendant argues that since he “gave his letter to an adult,” the act did not
constitute a violation under N.C.G.S. § 14-202.1. because A.G. did not receive the
letter and he never “saw, heard, touched, or communicated with A.G.” However, we
reject his argument: as our Supreme Court has previously stated, “the statute does
not contain any language requiring . . . the State prove that a touching occurred.
Rather, the State need only prove the taking of any of the described liberties for the
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STATE V. SOUTHERLAND
Opinion of the Court
purpose of arousing or gratifying sexual desire.” State v. Hartness, 326 N.C. 561, 567,
391 S.E.2d 177, 180–81 (1990) (emphasis added).
As our Court noted in McClary:
The requirement that defendant’s actions were for the
purpose of arousing or gratifying sexual desire may be
inferred from the evidence of the defendant’s actions. In
State v. McClees, this Court held that the defendant’s act
of secretly videotaping an undressed child was for the
purpose of arousing or gratifying sexual desire even though
no evidence was presented showing that the defendant ever
actually viewed the video. Thus, the completion of the
defendant’s ultimate desired act, watching the video tape,
was not required in order to allow the jury to reasonably
infer that the defendant’s acts of secretly setting up the
video camera and arranging for the child to undress
directly in front of the camera were for the purpose of
arousing or gratifying sexual desire.
McClary, 198 N.C. App. at 174, 679 S.E.2d at 418 (internal citations and quotation
marks omitted) (citing State v. McClees, 108 N.C. App. 648, 654–55, 424 S.E.2d 687,
690–91 (1993)). Therefore, we hold that defendant’s actions in sending a letter with
a specific request for delivery to A.G.––clearly expressing a desire to have sex with
an underage child––was an attempt to take indecent liberties with a child under the
statute.
Accordingly, based on the evidence presented at trial, when viewed in the light
most favorable to the State, the trial court properly denied defendant’s motion to
dismiss as the State presented substantial evidence to support each element of taking
or attempting to take indecent liberties with a child.
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STATE V. SOUTHERLAND
Opinion of the Court
NO ERROR.
Judges STROUD and COLLINS concur.
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