State v. Heelan

263 N.C.App. 275

823 S.E.2d 106

STATE of North Carolina

v.John Edward HEELAN

No. COA17-1245

Court of Appeals of North Carolina.

Filed: December 18, 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 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

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 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 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.

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 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...