                                 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
                                        -2-
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
                                       -3-
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.
                                             -4-
       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).
                                    -5-
    “[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)).
                                -6-
       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
                                           -7-
             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)
                                          -8-
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.
                                          -9-
      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.
                                       -10-
     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
                                       -11-
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
                                           -12-
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
                                     -13-
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
                                       -14-
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.
