State v. Heelan , 263 N.C. App. 275 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1245
Filed: 18 December 2018
Watauga County, No. 16 CRS 50236
STATE OF NORTH CAROLINA
v.
JOHN EDWARD HEELAN
Appeal by defendant from judgments entered 16 June 2017 by Judge Marvin
P. Pope, Jr. in Watauga County Superior Court. Heard in the Court of Appeals 5
September 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Brenda
Menard, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
Orsbon, for defendant.
ELMORE, Judge.
Defendant John Edward Heelan appeals from judgments entered after a jury
found him guilty of taking or attempting to take indecent liberties with a child, and
of solicitation of a child by computer. The undisputed trial evidence showed that
defendant posted a Craigslist advertisement seeking female companionship; an adult
police officer posing as a fourteen-year-old girl named “Brittany Duncan” responded
to the ad; defendant and “Brittany” exchanged over 100 messages over a period of
fifteen days, during which defendant sent her numerous sexually explicit messages
STATE V. HEELAN
Opinion of the Court
and formulated a plan for them to meet up at a public place in order to later have sex;
and when defendant arrived at the location to carry out the plan, he was met by police
and arrested. Defendant’s trial defense was that he did not believe Brittany to be an
actual minor, but rather an adult female he was role-playing with to help her live out
her sexual fantasy of pretending to be an underage female in sexual pursuit of an
older man. The jury found defendant guilty as charged.
On appeal, defendant argues the trial court erred by (1) denying his motions
to quash or dismiss the indecent-liberties indictment because “Brittany Duncan” was
not an actual child victim, as required to sustain a charge and conviction for indecent
liberties with a child; (2) denying his motions to dismiss both charges for insufficiency
of the evidence because the State’s evidence proved Brittany was not an actual child,
and it failed to present substantial evidence that defendant believed her to be an
actual child; (3) allowing the State, over objection, to question him about his alleged
prior sexual assault of his then-minor daughter because the State impermissibly
repackaged this Rule 404(b) sexual misconduct evidence as impeachment evidence;
and (4) ordering that he enroll in satellite-based monitoring (“SBM”) because its
findings were insufficient to support its conclusion that defendant required the
highest level of supervision and monitoring as necessary to impose SBM. We hold
defendant received a fair trial, free of prejudicial error, but reverse the SBM order.
I. Background
-2-
STATE V. HEELAN
Opinion of the Court
On 28 November 2016, defendant was indicted for taking indecent liberties
with a child, in violation of N.C. Gen. Stat. § 14-202.1, and for solicitation of a child
by computer and appearing, in violation of N.C. Gen. Stat. § 14-202.3. The
undisputed trial evidence showed the following facts.
On 29 January 2016, defendant posted in Craigslist’s “casual encounters”
subsection an advertisement entitled, “lick n stick – m4w.” In the ad, defendant wrote
that he was a “$$ Generous $$ older swm [single white male]” seeking a female “24
or younger” to engage in cunnilingus and vaginal sex. That same day, Detective
Jason Reid of the Boone Police Department, posing as a fictitious fourteen-year-old
female named “Brittany Duncan,” responded by email to defendant’s post. Over the
course of several messages between defendant and “Brittany” from 29 January until
12 February 2016, Brittany twice directly disclosed she was only fourteen years old
and made numerous references implying she was a minor who lived under close
maternal supervision, and defendant sent multiple explicit messages to Brittany in
sexual pursuit of her, and repeatedly encouraged Brittany not to raise her mother’s
suspicions about them communicating. Additionally, at defendant’s request, Brittany
sent him two images purportedly depicting herself, which actually depicted a twenty-
one-year-old former police department intern.
The 100-plus messages between defendant and Brittany culminated in their
plan to meet up at 10:00 a.m. on 12 February 2016 at the Panera Bread restaurant
-3-
STATE V. HEELAN
Opinion of the Court
in Boone Mall in order to later engage in sex. While driving to Panera Bread,
defendant requested Brittany phone him, and a female in her twenties working with
the police department called and briefly spoke with him. When defendant arrived at
the Panera Bread parking lot, he texted Brittany to meet him outside, but he was
instead met by Detective Reid and Special Bureau of Investigation Agent Nathan
Anderson. The detectives briefly interviewed defendant while he was sitting in his
car and then arrested him for solicitation of a child by computer. Their search of
defendant’s car revealed that he had arrived to meet up with Brittany in possession
of, inter alia, two Viagra pills and a tube of KY Jelly. The detectives then transported
defendant to the Boone Police Department, where he waived his Miranda rights and
participated in a forty-five minute videotaped custodial interview with both
detectives. Defendant was later charged with taking indecent liberties with a child,
and with solicitation of a child by computer and appearing.
Before trial, on 22 May 2017, defendant moved to quash the indecent-liberties
indictment. He argued it was legally insufficient because it charged him with taking
indecent liberties with “Brittany Duncan,” who was not an actual child but an adult
officer posing as one. The trial court denied the motion. Also before trial, at the start
of its first day on 12 June 2017, defendant moved in limine to exclude anticipatory
Rule 404(b) prior sexual misconduct evidence arising from an incident in 2000 in
which he allegedly sexually assaulted his then-twelve-year-old daughter. The State
-4-
STATE V. HEELAN
Opinion of the Court
replied it did not “anticipate introducing any 404(b) evidence” because defendant’s
daughter “declined to participate in this process.” Accordingly, defendant withdrew
his motion. However, as discussed below, the trial court later allowed the State to
cross-examine defendant about that alleged incident for impeachment purposes.
At trial, the State introduced a binder of 426 pages of messages exchanged
between defendant and Brittany. Detective Reid testified about messaging defendant
while posing as Brittany and read several relevant exchanges to the jury. During the
exchanges, Brittany twice disclosed that she was only fourteen years old, and made
several references implying she was a minor living under close maternal supervision,
who was sexually inexperienced but interested in the sexual companionship of an
older man; defendant, in response, described his experience losing his virginity at age
fourteen, explained how being with an older man rather than a teenage boy would
make Brittany’s first sexual experience more enjoyable, sent Brittany several
sexually explicit messages and sexually graphic stories or song lyrics, encouraged
Brittany not to tell her mother about them communicating, expressed concerns about
her mother reading their messages, and formulated a plan for them to meet up for
sex without raising Brittany’s mother’s suspicions. Detective Reid also testified that
when he first interviewed defendant briefly at the Panera Bread parking lot,
defendant initially denied knowing Brittany but later admitted that he had been
communicating with her and knew her to be only fourteen years old.
-5-
STATE V. HEELAN
Opinion of the Court
The State also published to the jury during its case-in-chief defendant’s later
videotaped custodial interview, during which defendant expressed remorse for his
actions and again admitted he believed Brittany to be fourteen years old. During
that interview, defendant also stated to the detectives that he “never had sex with a
minor” before.
At the close of the State’s evidence, defendant moved to dismiss both charges
for insufficiency of the evidence. As to the solicitation charge, defendant argued
generally that the State failed to present substantial evidence “of each and every
element.” As to indecent liberties, defendant argued in relevant part the same
grounds underlying his prior motion to quash the indictment—that is, the State failed
to present evidence that Brittany was an actual minor, and without the element of
an actual child victim, a charge for taking indecent liberties with a child cannot be
sustained. The trial court denied the motions.
Defendant testified on his own behalf. Despite previously giving notice of the
affirmative defense of entrapment, defendant’s trial testimony established a fantasy
defense—that is, defendant did not have the specific intent to take indecent liberties
with a child or to solicit a child by computer because he did not believe Brittany to be
an actual minor but rather a role-playing adult living out her sexual fantasy of
pretending to be an underage female seeking to sexually engage an older male.
Defendant testified that although Brittany had disclosed to him during their emails
-6-
STATE V. HEELAN
Opinion of the Court
that she was only fourteen years old, he knew Brittany was not an actual minor when
she emailed him the photo of the twenty-one-year-old former police department
intern purportedly depicting herself, a belief that strengthened when Brittany sent
the second photo of the same adult female purportedly depicting herself, and again
when he heard the adult female’s voice purporting to be Brittany, who had phoned
him while he was in route to meet up with her at Panera Bread. When defense
counsel referred to his videotaped custodial interview statements, defendant
explained that he was “willing to say anything to get back home and get out of [the
police station].”
On cross-examination, defendant reiterated that after Brittany sent him the
first photo of an adult female purportedly depicting herself, he knew Brittany to be
an adult but believed she was living out her sexual fantasy of pretending to be an
underage girl. When pressed on the numerous incriminating messages suggesting
otherwise, defendant repeatedly replied that he was merely role-playing to help
“enforce[ ] the fantasy.”
During the middle of cross-examination and outside the presence of the jury,
the State informed the trial court and the defense that it intended to use defendant’s
alleged prior sexual assault of his then-minor daughter to impeach his credibility as
a witness. The State explained it intended to reference defendant’s prior statement
during the videotaped custodial interview that he “never had sex with a minor” and
-7-
STATE V. HEELAN
Opinion of the Court
then question him about the alleged prior sexual assault to prove he had previously
lied to police. Defense counsel objected, arguing in relevant part that the State before
trial agreed not to introduce that evidence for Rule 404(b) sexual misconduct purposes
and thus should not be allowed to repackage it to the jury as impeachment evidence.
The trial court concluded defendant’s pretrial motion to exclude was for Rule 404(b)
purposes, not credibility purposes, and ruled it would allow the questioning solely for
impeachment. When the State attempted to impeach defendant’s credibility by
referencing his prior custodial statement and then questioning him about his alleged
prior sexual assault of his then-minor daughter, however, defendant flatly denied the
allegations, and the State ceased its line of questioning.
At the close of evidence, defendant renewed his motions to dismiss both
charges for insufficiency of the evidence, which the trial court denied. After the trial
court charged the jury on taking indecent liberties with a child and on child
solicitation by computer, the jury during its deliberations sent a note to the trial court
asking whether someone can be found guilty of taking or attempting to take indecent
liberties with a child if no actual child victim existed. In response to the jury’s
question, and over defendant’s objection, the trial court instructed the jury on the
criminal liability theory of attempt.
On 14 June 2017, the jury found defendant guilty of both charges. The trial
court entered judgments imposing a thirteen to twenty-five month prison sentence
-8-
STATE V. HEELAN
Opinion of the Court
for the solicitation conviction, and a consecutive prison sentence of sixteen to twenty-
nine months for the indecent-liberties conviction. Additionally, the trial court
ordered that, defendant upon his release from prison, be enrolled in SBM for a period
of ten years. Defendant appeals.
II. Analysis
On appeal, defendant contends the trial court erred by (1) denying his motions
to quash or dismiss the indecent-liberties indictment on the ground that a charge or
conviction for indecent liberties with a child cannot be sustained without an actual
child victim; (2) denying his motions to dismiss both charges for insufficiency of the
evidence on the grounds that the State failed to present any evidence of the indecent-
liberties element of an actual minor victim, and failed to present substantial evidence
of the solicitation element that defendant reasonably believed Brittany to be an
actual minor; (3) permitting the State, over his objection, to cross-examine him about
the alleged prior sexual assault of his then-minor daughter on the grounds that the
State impermissibly repackaged its Rule 404(b) evidence of sexual misconduct as
impeachment evidence; and (4) ordering that he enroll in SBM because the trial
court’s findings were insufficient to support the order.
A. Motions to Quash or Dismiss the Indecent-Liberties Charge
Defendant first asserts the trial court erred by denying his pretrial motion to
quash the indecent-liberties indictment and his later trial motion to dismiss that
-9-
STATE V. HEELAN
Opinion of the Court
charge. He argues the charge alleged, and the trial evidence proved, Brittany Duncan
was not an actual child, and “[w]ithout an actual child, there can be no taking
indecent liberties with a child.” We disagree.
1. Review Standard
We review statutory interpretation issues de novo. See State v. Davis, 368 N.C.
794, 797, 785 S.E.2d 312, 315 (2016). “Where the language of a statute is clear and
unambiguous, there is no room for judicial construction and the courts must construe
the statute using its plain meaning.” Burgess v. Your House of Raleigh, Inc., 326 N.C.
205, 209, 388 S.E.2d 134, 136 (1990) (citation omitted). “[I]t is our duty to give effect
to the words actually used in a statute and not to delete words used or to insert words
not used.” Lunsford v. Mills, 367 N.C. 618, 623, 766 S.E.2d 297, 301 (2014) (citations
omitted). Additionally, “[t]he Legislature is presumed to know the existing law and
to legislate with reference to it.” State v. Davis, 198 N.C. App. 443, 451–52, 680
S.E.2d 239, 246 (2009) (quoting State v. S. Ry. Co., 145 N.C. 495, 542, 59 S.E. 570,
587 (1907)).
2. Discussion
Defendant contends the plain language and statutory structure of N.C. Gen.
Stat. § 14-202.1, our taking indecent-liberties-with-a-child statute; in conjunction
with an in pari materia interpretation of N.C. Gen. Stat. § 14-202.3, our child-
solicitation-by-computer statute; as well as a consideration of the legislative histories
- 10 -
STATE V. HEELAN
Opinion of the Court
of both statutes, “compel the conclusion that the General Assembly intended § 14-
202.1 to require that a defendant take or attempt to take an indecent liberty with an
actual child in order . . . to be convicted.”
Our indecent-liberties statute provides in pertinent part:
(a) A person is guilty of taking indecent liberties with
children if, being 16 years of age or more and at least five
years older than the child in question, he . . . :
(1) Willfully 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[.]
N.C. Gen. Stat. § 14-202.1(a), –(a)(1) (2017). North Carolina courts have interpreted
the elements of taking indecent liberties with a child as follows:
“(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. Cowan, 207 N.C. App. 192, 201, 700 S.E.2d 239, 245 (2010) (quoting State v.
Rhodes, 321 N.C. 102, 104–05, 361 S.E.2d 578, 580 (1987)).
However, a defendant “may be convicted of an attempt to commit [a] crime[,]”
when he or she “has the specific intent to commit [the] crime and under the
circumstances as he [or she] reasonably saw them did the acts necessary to
consummate the substantive offense, but, because of facts unknown to him [or her]
- 11 -
STATE V. HEELAN
Opinion of the Court
essential elements of the substantive offense were lacking[.]” State v. Hageman, 307
N.C. 1, 13, 296 S.E.2d 433, 441 (1982) (emphasis added). “The elements of an attempt
to commit a crime are: (1) the intent to commit the substantive offense, and (2) an
overt act done for that purpose which goes beyond mere preparation, but (3) falls
short of the completed offense.” State v. Baker, 369 N.C. 586, 595, 799 S.E.2d 816,
822 (2017) (internal quotation marks omitted) (quoting State v. Coble, 351 N.C. 448,
449, 527 S.E.2d 45, 46 (2000)).
Here, the indictment charging defendant with taking indecent liberties with a
child alleged in relevant part that defendant
did take and attempt to take immoral, improper, and
indecent liberties with “Brittany Duncan,” the name of the
alias used by Detective Jason Reid of the Boone Police
Department, a child the defendant believed to be under the
age of 16 years at the time of the offense, for the purpose of
arousing and gratifying sexual desire.
(Emphasis added.) The undisputed trial evidence showed defendant sent numerous
sexually explicit messages to “Brittany Duncan,” who identified herself to defendant
as a fourteen-year-old female, but who was actually an adult undercover officer. The
disputed issue at trial was whether defendant actually believed Brittany to be a child
or, as he testified in his defense, he believed Brittany to be an adult role-playing her
sexual fantasy of pretending to be a child. Although the essential element of the
child’s age was missing, we conclude the indictment and trial evidence here were
sufficient to support a charge and conviction of attempted taking indecent liberties
- 12 -
STATE V. HEELAN
Opinion of the Court
with a child. Cf. State v. Ellis, 188 N.C. App. 820, 825–26, 657 S.E.2d 51, 54–55
(2008) (relying on Hageman’s instruction on the criminal liability theory of attempt
to opine in dicta that a defendant may be convicted of attempted taking indecent
liberties with a child based upon inappropriate messaging with an adult undercover
officer posing as a child).
Given N.C. Gen. Stat. § 14-202.1’s unambiguous inclusion of “attempt[ ]”
within the definition of the crime, we need not resort to other canons of judicial
interpretation. Including “attempt” indicates the General Assembly envisioned
something less than the actual taking of indecent liberties with a child may sustain
a conviction, and underscores legislative intent to impose criminal liability regardless
of whether a defendant succeeds in committing the crime. Cf. State v. Curry, 203
N.C. App. 375, 393, 692 S.E.2d 129, 142 (2010) (“The crime of robbery with a
dangerous weapon, as defined by N.C. Gen. Stat. § 14-87, includes within the
definition of the crime an attempt to commit the crime; that is, the State may present
evidence that defendant either completed the crime or that he attempted the crime,
but either way the evidence would be sufficient that defendant may be found guilty
of robbery with a dangerous weapon.” (citing N.C. Gen. Stat. § 14-87 (2005)).
Accordingly, we hold that an actual child victim is not required to sustain a
charge or an attempt conviction under N.C. Gen. Stat. § 14-202.1. Therefore, the trial
court properly denied the motions to quash or dismiss the charge on this basis.
- 13 -
STATE V. HEELAN
Opinion of the Court
B. Motions to Dismiss Both Charges for Insufficiency of Evidence
Defendant next contends the trial court erred by denying his motions to
dismiss both charges for insufficient evidence. We disagree.
1. Review Standard
Our review standard of a trial court’s denial of a motion to dismiss a criminal
charge for insufficient evidence is de novo. State v. Barnett, 368 N.C. 710, 713, 782
S.E.2d 885, 888 (2016) (citing State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649,
652 (1982)). Our review scope is “whether the State presented substantial evidence
in support of [the challenged] element of the charged offense.” State v. Jones, 367
N.C. 299, 304–05, 758 S.E.2d 345, 349 (2014) (quoting State v. Hunt, 365 N.C. 432,
436, 722 S.E.2d 484, 488 (2012)). “Substantial evidence is relevant evidence that a
reasonable person might accept as adequate, or would consider necessary to support
a particular conclusion.” Id. “[A]ll evidence is considered in the light most favorable
to the State, and the State receives the benefit of every reasonable inference
supported by that evidence.” Id. “If there is substantial evidence—whether direct,
circumstantial, or both—to support a finding that the offense charged has been
committed and that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied.” Id. (brackets omitted).
2. Discussion
- 14 -
STATE V. HEELAN
Opinion of the Court
Defendant argues the indecent-liberties charge should have been dismissed
because the State failed to present any evidence to support the element of an actual
child victim, and the solicitation charge should have been dismissed because the State
failed to present substantial evidence of the element that defendant reasonably
believed he was soliciting an actual child. Having concluded an actual child victim is
not required to sustain a charge or attempt conviction of taking indecent liberties
with a child, the issue presented for both charges is whether the State presented
substantial evidence that defendant believed Brittany to be an underage minor.
At trial, the State introduced a binder of 426 pages of emails between
defendant and Brittany, a person who directly identified herself twice as a fourteen-
year-old minor, and who made numerous references implying she was a minor. For
example, Brittany reference to being homeschooled, doing homework, living with her
mother, not being allowed out of her house without her mother’s permission, being
unable to drive, engaging in activities common for minors, her friends discussing
relationship experiences with teenage boys, and her being embarrassed that she only
ever kissed a boy. In response, defendant encouraged Brittany to keep up with her
homework, expressed concern about her mother reading their messages, gave
Brittany advice on ways not to raise her mother’s suspicions about them
communicating, formulated a plan for how they could meet up for a sexual encounter
without Brittany’s mother knowing, described his experience losing his virginity at
- 15 -
STATE V. HEELAN
Opinion of the Court
age fourteen, explained how being with an older man like himself would be more
enjoyable for Brittany’s first sexual experience than being with a teenage boy,
described to Brittany what she could expect during her first sexual encounter,
suggested meeting in public since “father-daughter” time would not raise suspicions,
and expressed to Brittany how “it’s real cool to feel a young girl squiggle and squirm
when you hit all the right spots[.]” In sum, these numerous communications
portrayed Brittany as a fourteen-year-old girl, under close maternal supervision, and
nothing about them indicates defendant believed otherwise or that Brittany was
engaging in a role-playing fantasy. Several of these relevant and graphic exchanges
were read to the jury, which we decline to repeat.
Moreover, Detective Reid testified that when he first approached defendant at
the Panera Bread parking lot, although defendant initially denied knowing Britany,
he eventually admitted that “he, in fact, did know that Brittany was a 14-year-old
girl.” Additionally, during his later videotaped custodial interview that was
published to the jury, the following relevant exchanges occurred:
Q: . . . The bottom line . . . is that you knew [Brittany] was
fourteen, and she said okay and you tried to blow her off,
but you kept talking to her. . . . [D]id you not process that
and think there was something wrong with that?
A: Yes I did.
Q: What did you think?
A: I thought I was making a mistake but I was enjoying
- 16 -
STATE V. HEELAN
Opinion of the Court
the companionship.
....
Q: Well understand something, you were corresponding
with a 14 year old girl. Okay.
A: I understand.
Viewed in the light most favorable to the State, it presented substantial
evidence that defendant believed Brittany to be a minor, with whom he was
communicating with and sexually pursuing. Accordingly, the trial court properly
denied defendant’s motion to dismiss both charges for insufficiency of the evidence.
C. Allowing the State to Impeach Defendant during Cross-Examination
Defendant next contends the trial court erred by allowing the prosecutor, over
his objection, to cross-examine him for impeachment purposes about the alleged prior
sexual assault of his then-minor daughter. He argues the State impermissibly
repackaged its Rule 404(b) prior-sexual-misconduct evidence as impeachment
evidence and, because the State introduced during its case-in-chief the statement it
sought to impeach, our Rules of Evidence prohibited it from doing so.
Before trial, defendant filed a motion in limine seeking to exclude anticipatory
Rule 404(b) prior sexual misconduct evidence concerning an incident in 2000 in which
he was charged with sexually molesting his then twelve-year-old daughter, a charge
that was later dismissed. The State replied that it would not present that evidence
for Rule 404(b) purposes because defendant’s daughter declined to testify. However,
- 17 -
STATE V. HEELAN
Opinion of the Court
during defendant’s cross-examination, the State disclosed it intended to use that
evidence to impeach his credibility as a witness, since defendant stated during the
videotaped custodial interview it had previously published to the jury during its case-
in-chief that he “never had sex with a minor.” Over defendant’s objection, the trial
court ruled that it would allow the questioning solely for credibility purposes.
During defendant’s cross-examination, after the prosecutor referenced his
prior videotaped custodial statement, the following relevant exchange occurred:
Q. [Your daughter] spent New Year’s Eve with you,
December 31st, 1999; did she not?
A. That is correct.
Q. And on that New Year’s Eve she was 12 years old; is that
right?
A. She would’ve been 12.
....
Q. And so she at that time was two years younger than
Brittany was in these messages.
A. That is correct.
Q. And you went into her room on New Year’s Eve and you
made her perform oral sex on you, didn’t you?
[DEFENSE]: Objection.
A. That’s incorrect.
THE COURT: Overruled.
- 18 -
STATE V. HEELAN
Opinion of the Court
Q. ([STATE]) And you also digitally penetrated your 12-
year-old daughter?
[DEFENSE]: Objection.
A. That is incorrect.
THE COURT: Overruled.
Assuming, arguendo, the trial court erred by allowing this prosecutorial
questioning for impeachment purposes, “questions asked by an attorney are not
evidence.” State v. Taylor, 344 N.C. 31, 41, 473 S.E.2d 596, 602 (1996). Additionally,
“a question in which counsel assumes or insinuates a fact not in evidence, and which
receives a negative answer, is not evidence of any kind.” State v. Richardson, 226
N.C. App. 292, 303, 741 S.E.2d 434, 442 (2013) (quoting State v. Smith, 289 N.C. 143,
157, 221 S.E.2d 247, 255 (1976)). No evidence was generated by the challenged
questioning other than defendant’s conclusive denials of the alleged prior sexual
misconduct, which rendered the challenged prosecutorial questioning harmless. See
State v. McClintick, 315 N.C. 649, 659, 340 S.E.2d 41, 47 (1986) (finding prosecutorial
questioning harmless where “the [S]tate’s query into each matter ended upon the
defendant’s flat denial” and the “defendant’s denials were conclusive” (citations
omitted)); State v. Black, 283 N.C. 344, 350, 196 S.E.2d 225, 229 (1973) (“Defendant’s
negative answers were conclusive and rendered the questions harmless.” (citations
omitted)); see also State v. Davis, 349 N.C. 1, 40, 506 S.E.2d 455, 476 (1998) (“No
improper testimony was admitted, and the jurors heard defendant’s sister deny any
- 19 -
STATE V. HEELAN
Opinion of the Court
knowledge of such conversation.”). While we do not go so far as to hold that reversible
error could never occur from improper questioning on cross-examination of a criminal
defendant where the defendant denies the allegations contained in the questions,
based on the facts of this case we conclude no prejudicial error occurred. Accordingly,
we overrule this argument.
D. SBM Order
Finally, defendant argues, and the State concedes, the trial court reversibly
erred by ordering that he enroll in SBM. The Division of Adult Correction’s (“DOC”)
STATIC-99R risk assessment of “Moderate-Low,” without additional findings by the
trial court, was insufficient to support the trial court’s conclusion that defendant
“requires the highest possible level of supervision and monitoring” necessary to
impose SBM. See State v. Kilby, 198 N.C. App. 363, 370, 679 S.E.2d 430, 434 (2009)
(“The findings of fact are insufficient to support the trial court’s conclusion that
‘defendant requires the highest possible level of supervision and monitoring’ based
upon a ‘moderate’ risk assessment from the DOC.”). Because the State failed to
present evidence at sentencing to support findings that would support this
determination, we reverse the SBM order. Id. at 370–71, 679 S.E.2d at 434.
III. Conclusion
Because we conclude that an actual child victim is not necessary to sustain a
charge or conviction of attempted taking indecent liberties with a child in violation of
- 20 -
STATE V. HEELAN
Opinion of the Court
N.C. Gen. Stat. § 14-202.1, we hold the trial court properly denied defendant’s
motions to quash or dismiss the indecent-liberties charge on that basis. Viewed in
the light most favorable to the State, it presented substantial evidence of the
challenged elements of both charges, and thus the trial court properly denied
defendant’s motions to dismiss those charges for insufficiency of the evidence.
Assuming, arguendo, the trial court erred by allowing the State to cross-examine
defendant for impeachment purposes about the alleged prior sexual assault of his
then-minor daughter, defendant’s conclusive denials that the incident ever occurred
rendered that questioning harmless. Accordingly, we hold defendant received a fair
trial, free of prejudicial error. Finally, as the State concedes, because the trial court’s
findings were inadequate to support its order imposing SBM, we reverse the SBM
order.
NO PREJUDICIAL TRIAL ERROR; SBM ORDER REVERSED.
Judges DILLON and DAVIS concur.
- 21 -