State v. Simpson, 235 N.C. App. 398

Defendant, a registered sex offender (convictions in 1997), was arrested at Cub Creek Park and indicted under N.C. Gen. Stat. § 14-208.18(a) for being within 300 feet of a location intended primarily for minors (batting cage and ball field).
Superseding indictment alleged defendant “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.”
Trial court denied defendant’s motion to dismiss; jury convicted under § 14-208.18(a)(2); habitual felon charge later dismissed; defendant sentenced to 19–23 months.
On appeal by writ of certiorari, defendant argued (1) the indictment was fatally defective for failing to allege the park was on premises not primarily intended for minors, and (2) insufficient evidence that the batting cages and ball field were intended primarily for minors.
Court of Appeals held the indictment was sufficient to confer subject-matter jurisdiction (language “within 300 feet” put defendant on notice he was charged under (a)(2)).
Court reversed the denial of the motion to dismiss because the State failed to present substantial evidence that the batting cages and ball fields were primarily intended for minors; witness testimony showed mixed-use by adults and minors and did not establish the required “intended primarily” element.

Issue	State's Argument	Simpson's Argument	Held
1. Whether the indictment was fatally defective for not specifying which subsection of § 14-208.18(a)	Indictment’s wording ("within 300 feet") tracks (a)(2) and gave sufficient notice of the charged offense	Indictment failed to allege an essential element (that the park premises were not primarily for minors); ambiguous among (a)(1),(a)(2),(a)(3)	Indictment was sufficient; cured notice requirement and conferred jurisdiction (affirmed as to sufficiency)
2. Whether the State produced substantial evidence that the batting cages and ball field were "intended primarily" for minors under § 14-208.18(a)(2)	Witnesses’ testimony that children sometimes used the facilities and park amenities supported that minors used the area	State’s proof was speculative; testimony showed mixed use by adults/teens and did not prove "intended primarily" for minors	Reversed denial of motion to dismiss; evidence insufficient — only suspicion or conjecture that locations were primarily for minors

State v. Coker, 312 N.C. 432 (1985) (indictment’s purpose is to inform defendant with reasonable certainty of the nature of the crime)
State v. Greer, 238 N.C. 325 (1954) (indictment sufficient if it charges offense in words of statute or their equivalent)
State v. Wallace, 351 N.C. 481 (2000) (challenge to facially invalid indictment may be raised at any time)
State v. McKoy, 196 N.C. App. 650 (2009) (de novo review of indictment sufficiency)
State v. Fritsch, 351 N.C. 373 (2000) (standard for opposing a motion to dismiss: State must present substantial evidence of each element)
State v. Denny, 361 N.C. 662 (2007) (definition of substantial evidence and view of evidence in light most favorable to State)