              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
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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



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      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



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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



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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.



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      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



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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



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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



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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



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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



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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]


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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


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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.



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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




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      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



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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


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             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,


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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.



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             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


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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



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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.




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