State v. Coleman

• Decision Date: 03 November 2009
• Docket Number: No. COA09-307.,COA09-307.
• Citation: 684 S.E.2d 513
• Parties: STATE of North Carolina v. Darryl William COLEMAN.
• Court: North Carolina Court of Appeals

684 S.E.2d 513

STATE of North Carolina v. Darryl William COLEMAN.

No. COA09-307.

Court of Appeals of North Carolina.

November 3, 2009.

Appeal by defendant from judgments entered 22 May 2008 by Judge Jesse B. Caldwell, III, in Lincoln County Superior Court.

Heard in the Court of Appeals 15 September 2009.

Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.

Parish, Cooke & Condlin, by James R. Parish, Fayetteville, for defendant-appellant.

CALABRIA, Judge.

Darryl William Coleman ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of one count of statutory sex offense, one count of a sex act by a custodian, and four counts of indecent liberties with a minor. We find no error.

I. BACKGROUND

In June 2006, defendant was employed by Kingspoint Academy ("Kingspoint") at a boys' group home ("the boys' home") in Lincolnton, North Carolina. Kingspoint also operated a girls' group home ("the girls' home") in Shelby, North Carolina. Defendant, who was 40 years old at the time, worked at the boys' home on the weekends.

On 25 and 26 June 2006, "Allen"¹, who was 15 years old, and "Jordan," who was under 16 (collectively "the boys") lived in the boys' home along with five other boys. During the same time period, defendant worked the 8:00 p.m. to 8:00 a.m. shift and "Kelsey," "Dana," and "Taylor" (collectively "the girls") lived at the girls' home. Kelsey was 14 years old and Dana was 15 years old. On 25 June 2006, the girls left the girls' home without permission. The girls previously met Allen and some of the other boys from the boys' home at a Kingspoint summer camp. The girls called Jordan on the telephone, told him they were coming over to the boys' home, and defendant was informed of the girls' plans.

When the girls arrived at the boys' home, Allen and Jordan were outside playing basketball. Defendant was also present and told the girls to return when the rest of the staff was asleep. The girls went to a friend's house and got drunk. Later that evening, the girls, still intoxicated, returned to the boys' home. After the girls entered the boys' home through the downstairs windows, defendant told them they could spend the night but that they had to be quiet so they would not awaken the staff. Defendant, Kelsey, and Allen stayed in Allen's room on the first floor of the home.

During the evening, defendant told Dana that she had nice breasts and then touched her breasts. Defendant told Kelsey she had to show him her breasts if she wanted to spend the night. Defendant then touched her breasts. Next, he told Allen to leave the room and when Allen returned, Kelsey was naked. Kelsey performed fellatio on defendant. Subsequently, Allen had sexual intercourse with Kelsey in Allen's room. During the course of Allen and Kelsey's sexual activity with each other, defendant left and re-entered the room repeatedly and watched them having sex. Defendant told Allen, referencing Kelsey, "that's my baby[,] don't hurt her, ... do her right...."

Early in the morning of 26 June 2006, the girls left the boys' home by climbing out the back window. Taylor called her mother, who picked up the girls. When the girls returned to the girls' home, they went to the office. Dana eventually revealed that they went to the boys' home and described the sexual activity that took place between defendant and Kelsey and between the boys and girls.

Officers of the Lincolnton Police Department ("officers") interviewed the boys and girls. Kelsey admitted she had sex with Allen while defendant watched, that defendant fondled her breasts and that defendant asked for fellatio, which she performed on him. Dana told the officers that defendant told the girls to leave the boys' home and return after the staff was asleep. She further stated defendant felt her breasts, that she saw Kelsey and Allen having sex, and saw Kelsey perform fellatio on defendant and on Jordan. Allen admitted he had sex with Kelsey while defendant watched, and that he also saw defendant grab Kelsey's breast.

On 30 June 2006, defendant voluntarily contacted the officers to give a statement. He was advised of his Miranda rights and signed a written waiver. Defendant admitted that on the evening in question, he saw both Jordan and Allen each having sex with one of the girls in the boys' group home. Defendant added that after Allen finished having sex with one girl, defendant touched her breast and she performed fellatio on him. Defendant then stated he touched another girl's breast.

Defendant was arrested and charged with statutory rape, statutory sex offense, engaging in a sex act by a custodian, and four counts of indecent liberties with a minor. He was subsequently indicted on all charges except statutory rape. Defendant filed a motion to suppress his statement to the police. The trial court denied the motion.

All charges were joined for trial, which commenced on 19 May 2008 in Lincoln County Superior Court. At the close of the State's evidence and at the close of all the evidence, defendant moved to dismiss each of the charges due to the insufficiency of the evidence. The trial court denied both motions.

On 22 May 2008, the jury returned verdicts of guilty to statutory sex offense, engaging in a sex act by a custodian, and four counts of indecent liberties with a minor. On the statutory rape charge, the trial court sentenced defendant to a minimum term of 230 months and a maximum term of 285 months in the custody of the North Carolina Department of Correction. On the charge of engaging in a sex act by a custodian, defendant received a minimum term of 29 months and a maximum term of 44 months in the custody of the North Carolina Department of Correction, to begin at the expiration of the sentence imposed in the case above. Two of the indecent liberties convictions were consolidated for judgment with the statutory sex offense conviction. For the other two indecent liberties convictions, defendant received a minimum term of 15 months and a maximum term of 18 months in the custody of the North Carolina Department of Correction. The sentence was suspended, and defendant was placed on supervised probation for 36 months upon his release. The trial court also ordered defendant to provide a DNA sample and to pay court costs. Defendant appeals.

II. MOTION TO DISMISS—SEX OFFENSE BY A CUSTODIAN

Defendant first argues the trial court erred in denying his motion to dismiss the charge of sex offense by a custodian. We disagree.

"This Court reviews a trial court's denial of a motion to dismiss criminal charges de novo, to determine `whether there is 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. Davis, ___ N.C.App. ___, ___, 678 S.E.2d 385, 388 (2009) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion." State v. Hargrave, ___ N.C.App. ___, ___, 680 S.E.2d 254, 261 (2009). "The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom[.]" Powell, 299 N.C. at 99, 261 S.E.2d at 117.

The charge of sex offense by a custodian is defined in pertinent part as:

If ... a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class E felony. Consent is not a defense to a charge under this section.

N.C. Gen.Stat. § 14-27.7(a) (2007). In the instant case, the State presented substantial evidence on each and every element of N.C. Gen.Stat. § 14-27.7(a) and that defendant was the perpetrator. During the relevant period, defendant was employed by Kingspoint, a corporation, at a boys' group home. At that time, Kelsey was living at a girls' group home operated by Kingspoint. Kelsey performed fellatio on defendant while he worked at his job with Kingspoint.

Defendant further argues the trial court erred in denying his motion to dismiss because the State failed to show defendant knew or should have known Kelsey was in Kingspoint's custody. Defendant believes that knowledge that he was the custodian should be a requirement of the charge of sex offense by a custodian. We disagree.

In construing a statute, it is the duty of the court to "carry out the intent of the legislature." State v. Ward, 46 N.C.App. 200, 206, 264 S.E.2d 737, 741 (1980); State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768, 771 (1961); State v. Hudson, 11 N.C.App. 712, 182 S.E.2d 198 (1971); United States v. Jones, 471 F.3d 535, 539 (4th Cir.2006) (determining the mental state required for the commission of a crime requires construction of the statute and inferring the intent of the legislature). "The first step in determining a statute's purpose is to examine the statute's plain language." State v. Hooper, 358 N.C. 122, 125, 591 S.E.2d 514, 516 (2004). "As a cardinal principle of statutory interpretation, `[i]f the language of the statute is clear and is not ambiguous, we must conclude that the legislature intended the statute to be implemented according to the plain meaning of its terms.'" State v. Watterson, ___ N.C.App. ___, ___, 679 S.E.2d 897, 900 (2009) (quoting Hyler v. GTE Prods. Co., 333 N.C. 258, 262, 425 S.E.2d 698, 701 (1993)).

The legislature's purpose in enacting N.C. Gen.Stat. § 14-27.7 was "prevention of sexual abuse by institutional personnel of persons in an institution's care." State v. Raines, 319 N.C. 258, 262, 354 S.E.2d 486, 489 (1987); see also Outmezguine v. State, 97 Md.App. 151, 166, 627 A.2d 541, 548 (1993) (hold...