Criminal Practice – Indecent Liberties with a Minor – Sexual Gratification

Defendant’s actions of isolating the child, tickling, and reaching underneath the child’s waistband and touching her mid-buttock are substantial evidence from which a jury may conclude Defendant’s actions were done for the purpose of arousing or gratifying sexual desire.

The trial court did not err in dismissing Defendant’s motion to dismiss.

Defendant appealed his conviction for Indecent Liberties with a Child, arguing the trial court erred when it denied his motion to dismiss for insufficient evidence that he acted for the purpose of arousing or gratifying sexual desire.

Because the standard for what constitutes action for the purpose of arousing or satisfying sexual desire is subjective, we turned to caselaw to further our analysis. In State v. Slone, the defendant led his victim away during a game of hide-and-go-seek, to a dark and isolated dog shed. 76 N.C. App. 628, 631, 334 S.E.2d 78, 80 (1985). While hiding there, the defendant “put his arm around the victim, placed his hand between her legs and underneath her softball shorts[.]” This Court held the intentional isolation in a dark place was sufficient evidence to warrant an inference that the defendant’s actions had been for the purpose of arousing or satisfying sexual desire. In State v. Bruce, the defendant and victim were “just playing” when the defendant “went up and under [the victim’s] blouse” and rubbed her breast. 90 N.C. App. 547, 551, 369 S.E.2d 95, 98 (1988). The defendant locked the back screen door of the mobile home and did not stop rubbing the victim’s breast until the victim’s brother tried to enter the locked back door. We held this was sufficient evidence for a jury to infer that the defendant’s actions were for the purpose of arousing or satisfying sexual desire. In State v. Shue, the defendant followed a minor into a bathroom stall and tried to grab the minor’s arm, but the minor jerked his arm away. 163 N.C. App. 58, 62, 592 S.E.2d 233, 236 (2004). The defendant then exited the stall without further action. This Court held this was not sufficient evidence that the defendant had acted for the purpose of arousing or satisfying sexual desire.

In our present case, the Defendant parked the car, facing away from the building, and entered the backseat of his vehicle with the child. Defendant told the child he was “tickling” her and proceeded to reach under her pants and underpants to touch her upper-mid buttock. Defendant did not stop until the child fought back and left marks on Defendant’s neck. Like the defendant in Sloane, Defendant used a child’s game to isolate the child in a small space and physically touch her in a manner that was inappropriate by reaching underneath her waistband and touching her upper-mid buttock. Further, similar to the defendant in Bruce, Defendant claimed he was just “tickling” the child when he tried to isolate Carrie into the backseat of the vehicle. Although Defendant did not lock any doors as the defendant in Bruce had done, Defendant used a much smaller space to isolate the child. Unlike the defendant in Stanford, Defendant’s action of touching was not an “accidental grazing” as Defendant intentionally reached underneath the child’s waistband to touch her upper-mid buttock. Additionally, the present case is different from Shue because Defendant did not stop “tickling” the child after she tried to get away; instead, Defendant stopped only after the child grabbed his neck and left marks.

The facts that Defendant had isolated the child in the backseat and that Defendant reached underneath her waistband during the guise of a child’s game of tickling to touch her upper-mid buttock act as substantial evidence to infer that Defendant’s actions were for the purpose of arousing or gratifying sexual desire.

No error.

State v. Luis Fernando Ospina (Lawyers’ Weekly No. 012-129-24, 11 pp.) (Julee Flood, J.) Appealed from Union County Superior Court (David T. Lambeth Jr., J.) Attorney General Joshua H. Stein, by Special Deputy Attorney General Colleen M. Crowley, for the State; The Sweet Law Firm, PLLC, by Kaelyn N. Sweet, for defendant. North Carolina Court of Appeals Unpublished