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 
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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, 
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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
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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).
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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 
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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 fourpart 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 
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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 
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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 nonessential 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. 
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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 
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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 quasifamilial 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. 
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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 casein-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. 
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“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, 
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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. 
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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. 
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Judges McCULLOUGH and DAVIS concur.