Where defendant failed to raise constitutional arguments at trial, we will not review them on appeal. Where evidence was presented that defendant was involved in three separate incidents at a Target store with the victim, that another individual had a similar experience with defendant, and defendant admitted to having an obsession with women’s legs, the trial court did not err in holding that the State had presented sufficient evidence for the charge of indecent liberties with a child to be submitted to the jury. N.C. Gen. Stat. § 14-208.40A conferred subject matter jurisdiction upon the trial court to consider whether defendant should be enrolled in satellite-based monitoring. Defendant qualified for lifetime satellite-based monitoring because he committed a “sexually violent offense” as defined in N.C. Gen. Stаt. § 14-208.6(5), and was a recidivist.
I. Factual and Procedural History
On 20 July 2009, C.G. and her mother were shopping in a Target store. C.G. was looking at Band-Aids on the clearance aisle when she noticed Christopher Michael Sims (defendant) crouched down a couple of feet away looking at her legs. C.G. begаn to feel uneasy and left and went to another aisle with her mother. Defendant approached her again, fell into her, touched her belt area, and wrapped his hands around her. After defendant grabbed C.G. he immediately let go and said “Sorry, Sorry.” As defendant walked away, C.G. told her mother
At trial, Amy Mclllwain (Mclllwain) testified she encountered defendant at a Target store in the summer of 2009. Mclllwain was leaving Target walking along the sidewalk when defendant pulled up next to her in his car, and asked if he could pay her a compliment. He then stated that she had the best lоoking legs he had seen all day. Mclllwain was concerned that if she went to her car defendant might follow her, so she went into another store. Defendant followed her into the store and approached Mclllwain several times inside the store, finally cornering her and asking her if he could hug her legs. At that point Mclllwain told defendant to back off, and he left the store. Mclllwain saw defendant’s car the next day, took a picture of his license plate, and reported the incidents to police. Mclllwain also identified defendant from a photo located on a government-regulated website.
Anne Benjamin, a detective with the Buncombe County Sheriff’s Office, testified that she interviewed defendant as part of her investigation of the incident involving C.G. During this interview, defendant statеd that he had admitted to his mom, his dad, and his wife that he had an obsession with women’s legs.
On 11 August 2010, a jury found defendant guilty of taking incident liberties with a child. Defendant was sentenced to an active term of nineteen to twenty-three months imprisonment. Based upon defendant being a recidivist, he was required to enroll in satellite-based monitoring (SBM) for the remainder of his natural life, upon his release from prison.
Defendant appeals.
In his first argument, defendant contends the trial court’s denial of his motions to dismiss the charge of indecent liberties with a child at the close of the State’s evidence and at the close of all the evidence violated his rights pursuant to the Fifth Amendment of the United States Constitution, as applied to the States through the Fourteenth Amendment thereto, and also pursuant to Article I, Section 19 of the North Carolina Constitution. We disagree.
A. Constitutional Argument
The North Carolina Supreme Court has held that “[a] constitutional issue not raised at trial will generally not be considered for the first time on appeal. Because defendant did not raise [this] constitutional issue[] below, we decline to address [it] now.” State v. Maness,
The constitutional portion of this argument is dismissed.
B. Non-Constitutional Argument
Defendant’s non-constitutional argument focuses entirely upon whether the State produced sufficient evidence that the conduct was “for the purpose of arousing or gratifying sexual desire,” an element of the offense of taking indecent liberties with a child under N.C. Gen. Stat. § 14-202.1 (2009). “[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. Rhodes,
Considering the evidence in the light most favorable to the State, there were three separate incidents at the Target store: (1) defendant was crouched down looking at the juvenile’s legs; (2) defendant “fell into” the juvenile, wrapping his hands around her; and (3) defendant kneeled down, six to eight inches away from the juvenile’s legs. The State also presented the testimony of Mclllwain, pursuant to Rule 404(b) of the Rules of Evidence which was relevant to defendant’s intent and purpоse.
Defendant relies upon this Court’s decision in State v. Brown,
We held that “the cоnversations were neither sexually graphic and explicit nor were they accompanied by other actions tending to show defendant’s purpose was sexually motivated. [N]othing in the record indicate [d] defendant’s actions emanated from a desirе or purpose to arouse or gratify sexual desire.” Id. at 338,
Based upon all of the above-cited tеstimony, there was sufficient evidence presented by the State of defendant’s conduct from which the jury could infer that this conduct was for the purpose of arousing or gratifying sexual desire.
This argument is without merit.
III. Subject Matter Jurisdiction
In his second argument, defendant contends the trial court did not have subjeсt matter jurisdiction to enter the order requiring defendant to enroll in the SBM program because no complaint was filed and no summons was issued. We disagree.
The North Carolina Supreme Court held in, State v. Bowditch,
Jurisdiction is “[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it.” Black’s Law Dictionary 869 (8th ed.2004). The court must have subject matter jurisdiction, or “jurisdiction over the nature of the casе and the type of relief sought,” in order to decide a case. Id. at 870. “A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.” Burgess v. Gibbs,262 N.C. 462 , 465,137 S.E.2d 806 , 808 (1964).
The General Assembly “within constitutional limitations, can fix and circumsсribe the jurisdiction of the courts of this State.” Bullington v. Angel,220 N.C. 18 , 20,16 S.E.2d 411 ; 412 (1941). “Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of thе Court beyond these limits is in excess of its jurisdiction.” Eudy v. Eudy,288 N.C. 71 , 75,215 S.E.2d 782 , 785 (1975), overruled on other grounds by Quick v. Quick,305 N.C. 446 ,290 S.E.2d 653 (1982).
State v. Wooten,
The trial court exercised its jurisdiction pursuant to and in accordance with the procedures set forth in N.C. Gen. Stat. § 14-208.40A (2009). N.C. Gen. Stat. § 14-208.40A requires that when an offender is convicted of a reportable conviction under N.C. Gen. Stаt. § 14-208.6(4) “during the sentencing phase, the district attorney shall present to the court” evidence relating to the offender’s qualification for SBM, the offender shall have an opportunity to refute this evidence, and if the court finds the defendant meets the qualifications for SBM the court shall order the offender to enroll in SBM. The trial court exercised the jurisdiction conferred upon it by N.C. Gen. Stat. § 14-208.40A, and followed the procedures set forth therein.
IV. Satellite-Based Monitoring
In his third and fourth arguments, defendant contends that the trial court’s finding of fact number 1(a) in the “Judiciаl Findings and Order for Sex Offenders;” that defendant was convicted of a reportable conviction because defendant was convicted of an “offense against a minor” was not supported by competent evidence, and the trial court’s order аnd conclusion of law requiring defendant to enroll in SBM was not supported by the competent findings of fact. We disagree.
A. Standard of Review
This Court stated the standard of review for orders as to SBM in State v. Kilby: “[w]e review the trial court’s findings of fact to determine whether they are supported by сompetent record evidence, and we review the trial court’s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found.”
State v. Singleton,
B. Analysis
The trial court mаde the following oral finding during the SBM hearing, “the court having entered judgment in the above-captioned action, finds that the defendant — in addition, the court finds that the defendant has been convicted of a reportable conviction under GS 14-208.6. And, Madam Clerk, this will be an offеnse against a minor . . . .” This finding was incorporated into the trial court’s order requiring defendant to be enrolled in SBM for his natural life. Box 1(a) was marked on the order finding the defendant to have been convicted of a reportable conviction under N.C. Gen. Stat. § 14-208.6, spеcifically an “offense against a minor” under N.C. Gen. Stat. § 14-208.6(li).
N.C. Gen. Stat. § 14-208.6(lm) defines “offense against a minor” as:
any of the following offenses if the offense is committed against a minor, and the person committing the offense is not the minor’s parent: G.S. 14-39 (kidnapping), G.S. 14-41 (abduction of children), and G.S. 14-43.3 (felonious restraint). The term also includes the following if the person convicted of the following is not the minor’s parent: a solicitatiоn or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.
Defendant’s conduct in this case does not fall within the above definition of an “offense against a minor.”
The State further argues that this case is controlled by our decision in State v. Williams, _ N.C. App. _,
We hold that the instant case is indistinguishable from Williams. The defendant in this case was convicted of indecent liberties. The trial court erroneously found that this was an “offense against a minor.” As in Williams, the crime of indecent liberties explicitly is a “sexually violent offense” as defined by N.C. Gen. Stat. § 14-208.6(5).
While we question the wisdom of appellate courts engaging in fact-finding we are bound by the indistinguishable holding in Williams. In re Civil Penalty,
This argument is without merit.
NO ERROR, in part, AFFIRMED, in part.
Notes
. The statute number defining an offense against a minor has been сhanged to N.C. Gen. Stat. § 14-208.6(lm).
Further, this statute was amended by 2011 North Carolina General Assembly Session Law 145, House Bill 200. However, this amendment pertained strictly to the way in which the Department of Corrections was referred to, and did not affect the substance of the statute in any way.