                               NO. COA13-1337

                     NORTH CAROLINA COURT OF APPEALS

                             Filed: 1 July 2014


STATE OF NORTH CAROLINA


    v.                                    Beaufort County
                                          No. 11 CRS 52378, 12 CRS 312
SHAWN CARLOS GODLEY



    Appeal by defendant from judgment entered 1 May 2013 by

Judge W. Russell Duke, Jr. in Beaufort County Superior Court.

Heard in the Court of Appeals 23 April 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Larissa S. Williamson, for the State.

    William D. Spence, for defendant.


    ELMORE, Judge.


    On 1 May 2013, a jury found Shawn Carlos Godley (defendant)

guilty of indecent liberties with a child, and defendant pled

guilty to being a habitual felon.          Judge W. Russell Duke, Jr.

consolidated   the   convictions   into    one   judgment      and   sentenced

defendant to 84-110 months of active imprisonment.                   Defendant

appeals and raises as error the trial court’s decision to: 1.)

grant the State’s motion to close the courtroom doors during the

victim’s   testimony   and   2.)   deny   his    motion   to    dismiss   the
                                             -2-
indecent liberties charge.              After careful consideration, we hold

that the trial court did not err.

                                             I. Facts

      On 26 September 2011, a twelve-year-old female (the victim)

and   her    grandmother       went     to    the   City   of    Washington   Police

Department to report a series of four alleged sexual                          events

between the victim and defendant.                   Defendant was the boyfriend

of the victim’s aunt and lived in the same residence as the

victim     during    the     alleged    acts.       The    reported   instances      of

sexual      activity    occurred       between      June   and   August    2011     and

included kissing, fondling, masturbation, and intercourse.                         As a

result, defendant was charged with three counts of first-degree

rape of a child and taking indecent liberties with a child.

      At    trial,     the    State    made    an   oral    motion    to   close    the

courtroom doors during the testimony of its first witness, the

victim.      Over defendant’s objection, the trial court granted the

State’s motion.            Following the victim’s testimony, the State

called Detective Dean Watson of the City of Washington Police

Department as a witness and subsequently presented no further

evidence.      Four witnesses testified for defendant: defendant’s

cousin, the legal assistant for defendant’s attorney, and the

victim’s father and aunt.              At the close of the State’s evidence,
                                        -3-
defendant made a motion to dismiss the indecent liberties charge

for insufficiency of the evidence, which was denied by the trial

court.     The jury returned a verdict of not guilty as to the

three counts of first-degree rape but guilty of taking indecent

liberties with a child.

      On 30 April 2014, this Court entered an order remanding

this matter to the trial court to conduct a hearing and make

appropriate findings of fact and conclusions of law regarding

the temporary closure of the courtroom in accordance with Waller

v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216-17, 81 L.Ed.2d

31, 39 (1984), as interpreted by this Court in State v. Rollins

(Rollins    I),    ___    N.C.   App.   ___,    ___,     729   S.E.2d   73,   77-79

(2012).     Defendant’s appeal was held in abeyance pending this

Court’s receipt of the trial court’s order containing these new

findings.

     A hearing was held by the trial court on 22 May 2014.                       On

28   May   2014,    the    trial   court       entered    an   order    containing

findings of fact and conclusions of law as directed by this

Court.

                                    II. Analysis

a.) Closing the Courtroom
                                        -4-
      Defendant argues that the trial court erred in closing the

courtroom      during     the     victim’s         testimony.           Specifically,

defendant avers that his constitutional right to a public trial

was   violated     because      the   State    failed      to    present        evidence

sufficient to support the trial court’s decision to close the

courtroom.      We disagree.

      “In reviewing a trial judge’s findings of fact, we are

‘strictly      limited    to    determining        whether      the    trial     judge’s

underlying findings of fact are supported by competent evidence,

in which     event they are conclusively binding on appeal, and

whether    those   factual       findings     in    turn     support      the   judge’s

ultimate conclusions of law.’”           State v. Williams, 362 N.C. 628,

632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d

429, 434 (2010) (“‘[F]indings of fact made by the trial judge

are conclusive on appeal if supported by competent evidence,

even if . . . there is evidence to the contrary.’”                              (quoting

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,

655   S.E.2d    362,     369    (2008))).      This     court         reviews   alleged

constitutional violations de novo.                 State v. Tate, 187 N.C. App.

593, 599, 653 S.E.2d, 892, 897 (2007).
                                            -5-
      Pursuant    to    the     Sixth      Amendment       of    the   United       States

Constitution,     a    criminal      defendant     is      entitled        to   a   “public

trial.”    U.S. Const. amend. VI.

            The requirement of a public trial is for the
            benefit of the accused; that the public may
            see he is fairly dealt with and not unjustly
            condemned,   and    that  the     presence   of
            interested spectators may keep his triers
            keenly   alive    to   a    sense    of   their
            responsibility and to the importance of
            their functions.     In addition to ensuring
            that judge and prosecutor carry out their
            duties    responsibly,    a     public    trial
            encourages witnesses to come forward and
            discourages perjury.

Waller,    467   U.S.    at    46,     104    S.Ct.     at      2215   (citations       and

quotations omitted).           However, “the right to an open trial may

give way in certain cases to other rights or interests, such as

the   defendant’s      right    to     a    fair   trial        or   the    government’s

interest   in    inhibiting      disclosure        of      sensitive       information.”

Id.   at   45,   104    S.Ct.     at       2215.      In     accordance         with   this

principle, N.C. Gen. Stat. § 15-166 (2013) permits the exclusion

of certain persons from the courtroom in cases involving rape

and other sexually-based offenses:

            In the trial of cases for rape or sex
            offense or attempt to commit rape or attempt
            to commit a sex offense, the trial judge
            may, during the taking of the testimony of
            the prosecutrix, exclude from the courtroom
            all persons except the officers of the
            court, the defendant and those engaged in
                                             -6-
               the trial of the case.

       Before a trial court may allow a courtroom closure, it must

comply with the rule set forth in Waller.                       State v. Comeaux, ___

N.C. App. ___, ___, 741 S.E.2d 346, 350 (2012).                              The State

carries the burden “to present sufficient evidence, either in

its case in chief or by voir dire, to permit the trial court to

satisfy the Waller test[.]”               State v. Rollins (Rollins II), ___

N.C. App. ___, ___, 752 S.E.2d 230, 233 (2013).                         The trial court

must    balance       the    interests        of   the    State     with    defendant’s

constitutional right to a public trial through use of a four-

part test: “(1) the party seeking to close the hearing must

advance an overriding interest that is likely to be prejudiced,

(2) the closure must be no broader than necessary to protect

this    interest,      (3)    the     trial    court     must    consider    reasonable

alternatives to closing the proceeding, and (4) it must make

findings adequate to support the closure.”                       Rollins I, ___ N.C.

App. at ___, 729 S.E.2d at 77 (internal quotations and citations

omitted).        In making its findings, “[t]he trial court’s own

observations can serve as the basis of a finding of fact as to

facts    which    are       readily    ascertainable        by    the    trial   court’s

observations of its own courtroom.”                      Rollins II, ___ N.C. App.

___,    ___,    752   S.E.2d     at    235    (citation     omitted).        When   this
                                           -7-
Court, on remand, directs a trial court to conduct a rehearing

to make supplemental findings of fact and conclusions of law

regarding the temporary closure of a courtroom, the trial court

may base its supplemental findings of fact on evidence presented

after the State’s original motion.                 See id. at ___, 752 S.E.2d

at 233-34 (rejecting defendant’s contention that on remand “the

trial judge ought to place himself back at that point in time in

the   trial    when    he    heard   the    State’s     initial      motion,    and   to

consider only those facts he (the trial judge) knew at the time”

and   acknowledging         that   findings      can   “be   based    upon     evidence

presented      .   .   .     after   the     ruling     upon    the     motion    [for

closure]”).

      Here, the State made its original oral motion to close the

courtroom before any evidence had been presented, as the motion

was made immediately after opening statements and before any

witness     testified.         In    support      of   the     motion,    the     State

presented no evidence through voir-dire or its case-in-chief but

merely offered an argument and referenced the charging documents

to convince the trial court to close the courtroom:

              PROSECUTOR: Judge, at this time, the State
              is making a motion to close the courtroom to
              any   non-essential  personnel  during   the
              testimony of the next witness . . . who is
              alleged as the victim in the indictment. I
              would assert that there’s a compelling
                               -8-
         interest, that given her age at the time of
         the offense and her age now, that the
         presence of non-necessary personnel would
         create a hardship on her and make it
         difficult in testifying and her testimony is
         essential and that it’s not available to be
         admitted from any other source. So, for
         those reasons, I would ask to have non-
         essential   personnel  removed  during   her
         testimony only. . . .    Judge, you know by
         the nature of the charges, and even though I
         guess it’s not evidence, what you’ve heard
         from both counsel’s opening statements of
         what the allegations are in regard to a
         quasi family relationship, and, of course,
         Your Honor has enough experience to know
         what the testimony generally is -- I mean,
         that and it involves minor child and there’s
         not an available alternative that I’m aware
         of.

    Based on the above colloquy, the trial court        originally

made the following findings of fact:

         1. The crimes alleged in the case at trial
         are of a sexual nature, 2. The crimes
         alleged in the case at trial involve an
         alleged victim [sic] is a minor child who is
         13 years old now and crimes that took place
         in July and August of 2011. 3. The facts
         involve a relationship between the alleged
         victim and the defendant that are of a
         quasi-family nature.   4. The state contends
         that the evidence that would come from the
         minor child is not admissible by non-hearsay
         means from another reliable source. 5. The
         [d]efendant objected to any closure of the
         courtroom on 6th Amendment grounds of due
         process, fundamental fairness, and right to
         confront his accuser in a public trial.
                              -9-
    While the trial court’s findings of fact were not supported

by competent evidence in its original order, the trial court

reevaluated the State’s motion to close the courtroom on 22 May

2014, pursuant to our remand instructions.   The trial court made

numerous supplemental findings of fact, including:

         1.    The Court, prior to and during the
         selection of the jury and prior to the
         impaneling of the jury, made an extensive
         and exhaustive examination of the Clerk of
         Court’s criminal file and the indictments
         herein and readily recognized that the
         crimes alleged . . . are of a sexual nature,
         that the alleged victim is a minor child who
         is 13 years of age at the time of trial and
         that the crimes allegedly took place in July
         and August of     2011, almost two years
         earlier.

         2.   [T]he right side of the Courtroom [is]
         occupied . . . with people charged with
         various   misdemeanors   and  felonies   and
         possibly their witnesses . . . and one
         reporter with the local newspaper who the
         Court   did   not  recognize,  and   various
         attorneys of those persons, seated against
         the right wall of the Courtroom within the
         Bar.

         3. During the calling of the case for trial
         and during the selection of the jury, the
         Court has had the opportunity to observe the
         alleged victim, a teenager of 13 years of
         age, the defendant, a man with a criminal
         record allowing him to be charged as an
         habitual felon, and those people seated on
         the right side of the Courtroom and the
         attitude and demeanor of the victim and the
         defendant   and  the   general  nature   and
         character of the audience seated on the
                    -10-
right side of the Courtroom.

4.   Upon the jury being selected and . . .
having been informed by the State in open
court and at a bench conference, with
defendant’s counsel present, of the quasi-
familial nature of the relationship of the
defendant and the alleged victim and that
the testimony of the alleged victim is
essential   and    uncorroborated   and  not
available from any other source and would
take only the remaining one hour and 15
minutes of the Court day (all of such
representations were subsequently supported
by the evidence proffered by the State), and
the Court having considered the demeanor of
the victim, the defendant and the nature and
character of the remaining audience situated
on the right side of the Courtroom, the
Court ordered those people who were not
members of the defendant’s family, defense
counsel seated against the right hand side
of the wall of the Courtroom inside the Bar,
witnesses in this case, other prosecutors
and    not   other    court   personnel,  to
temporarily leave the Courtroom[.]

. . .

5.   Having presided from time to time in
Beaufort County Superior Court for over
twenty years, the Court is well aware that a
video feed or other technology that might
allow remote testimony is not available . .
. and no alternative method that would allow
the victim to testify in front of the
defendant or where the defendant would have
the opportunity to view the testimony of the
victim and where the jury could consider the
evidence and the public could be present, is
available so as for the trial to proceed in
the Beaufort County Courthouse.
                                    -11-
      These   supplemental     findings     are    supported        by   competent

evidence in light of the 1.) trial court’s own observations of

the     criminal   file,    indictments,     and        personnel    inside      the

courtroom;     2.) bench conference; 3.)           trial court’s experience

in    Beaufort     County’s    courthouse;        and     4.)   trial     court’s

consideration of the evidence presented during the State’s case-

in-chief.     Moreover, the young age of the victim, nature of the

charges,    quasi-familial    relationship        with    defendant,      type    of

other    persons    present   in   the     courtroom,       necessity     of     the

victim’s non-hearsay testimony, limited time and scope of the

courtroom closure, and lack of any reasonable alternatives to

closing the courtroom are findings sufficient to support the

courtroom closure.         Accordingly,       defendant’s constitutional

right to a public trial was not violated.

b.) Motion to Dismiss

      Defendant also argues that the trial court erred in denying

his motion to dismiss the charge of indecent liberties with a

child.     Specifically, defendant contends that the State failed

to demonstrate sufficient substantial evidence that he committed

indecent liberties for the purpose of arousing or gratifying

sexual desire pursuant to N.C. Gen. Stat. § 14-202.1(a)(1).                       We

disagree.
                                        -12-
    “A motion to dismiss for insufficiency of the evidence is

properly denied if substantial evidence exists to show: (1) each

essential element of the offense charged; and (2) that defendant

is the perpetrator of such offense.” State v. Fuller, 166 N.C.

App. 548, 554, 603 S.E.2d 569, 574 (2004) (internal citation

omitted).       “The trial court’s function is to test whether a

reasonable   inference     of     the    defendant’s     guilt      of    the   crime

charged may be drawn from the evidence.                The evidence is to be

considered   in    the   light    most    favorable     to    the   State.”        Id.

(internal citations and quotations omitted).

    The following elements are necessary to establish indecent

liberties with a child under N.C. Gen. Stat. § 14-202.1(a)(1):

“(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.

Rhodes,   321     N.C.   102,    104-05,       361   S.E.2d    578,      580    (1987)

(internal citation omitted).            “Indecent liberties are defined as

such liberties as the common sense of society would regard as

indecent and improper.”          State v. Every, 157 N.C. App. 200, 205,
                                                -13-
578 S.E.2d 642, 647 (2003) (citations and internal quotations

omitted).       Moreover, “[t]hat the action was for the purpose of

arousing or gratifying sexual desire, may be inferred from the

evidence of the defendant’s actions.”                             State v. Sims, 216 N.C.

App.    168,    171,        720        S.E.2d    398,       400    (2011)       (citation         and

quotation omitted).

       Defendant’s indecent liberties with the victim in June 2011

are illustrated by the State’s witnesses.                                 The victim stated

that while at her grandmother’s house, defendant kissed her on

the mouth, told her not to tell anyone about what transpired,

and continued to kiss her even after she asked him to stop.

Detective Watson testified that when the victim spoke to police

officers on 26 September 2011 about the sexual activity at her

grandmother’s house, she indicated that defendant “made sexual

advances on her while he was drunk[,]” kissed her, fondled her

“under her clothing,” “touch[ed] her breasts and vagina, but did

not    penetrate      her.”            Such     testimony         constitutes      substantial

evidence       of     taking           indecent     liberties            with     the    victim.

Moreover, this testimony coupled with the other instances of

defendant’s         alleged       sexual      misconduct          that   gave     rise       to   the

first-degree         rape     charges         are   sufficient           evidence       to    infer

defendant’s         purpose       of    arousing       or   gratifying          sexual       desire.
                                         -14-
See State v. Minyard, ___ N.C. App. ___, ___, 753 S.E.2d 176,

182-188     (2014)    appeal    dismissed,       disc.       review    denied,    50P14,

2014 WL 1512491 (2014) (holding that the victim’s statements

that the defendant used his penis to touch the victim’s buttocks

and penis multiple times “provide[d] ample evidence to infer

[the] [d]efendant’s purpose of obtaining sexual gratification”);

see also State v. Creech, 128 N.C. App. 592, 599, 495 S.E.2d

752,    756-57     (1998)    (holding    that        “the    jury    could    reasonably

conclude” that the defendant’s acts “were committed to arouse

defendant’s sexual desire” where he gave the victim massages

while only wearing “his underwear while [the victim] wore only

his shorts[,]” and the State offered testimony “concerning [the]

defendant’s      similar     pattern    of   behavior         during       massages   with

other young males”).           Accordingly, the trial court did not err

in     denying     defendant’s     motion       to    dismiss        for    insufficient

evidence.

                                  III. Conclusion

       In   sum,    the   trial    court     neither        erred    in    granting    the

State’s motion to close the courtroom doors during the victim’s

testimony     nor    in     denying    defendant’s          motion    to    dismiss   the

indecent liberties charge for insufficient evidence.

       No error.
                         -15-
Judges McCULLOUGH and DAVIS concur.
