Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/25/2021
E.g., 09/25/2021
State v. Faulk, 200 N.C. App. 118 (Sept. 15, 2009)

In a case charging offenses under G.S. 14-27.7A (statutory rape or sexual offense of person who is 13, 14, or 15 years old), the court held that the trial judge misapplied the “birthday rule” (a person reaches a certain age on his or her birthday and remains that age until his or her next birthday) to the calculation of the age difference between the defendant and the victim. The defendant’s and victim’s ages at the time in question were 19 years, 7 months, and 5 days and 15 years, 2 months, and 8 days respectively. Applying the birthday rule, the trial court concluded that the defendant was 19 at the time in question and that the victim was 15, making the age difference 4 years, when the relevant statute required it to be more than 4 years. The appellate court concluded that the statutory element of more than 4 years but less than 6 years means 4 years 0 days to 6 years 0 days, “or anywhere in the range of 1460 days to 2190 days.”

State v. Hunt, 365 N.C. 432 (Mar. 9, 2012)

(1) Reversing a decision of the court of appeals in State v. Hunt, 211 N.C. App. 452 (May 3, 2011), the court held that expert testimony was not required for the State to establish that the victim had a mental disability for purposes of second-degree sexual offense. In the opinion below, the court of appeals reversed the defendant’s conviction on grounds that there was insufficient evidence as to the victim’s mental disability, reasoning: “where the victim’s IQ falls within the range considered to be ‘mental retardation[,]’ but who is highly functional in her daily activities and communication, the State must present expert testimony as to the extent of the victim’s mental disability as defined by [G.S.] 14-27.5.” The supreme court, however, found the evidence sufficient. First, it noted, there was evidence that the victim was mentally disabled. The victim had an IQ of 61, was enrolled in special education classes, a teacher assessed her to be in the middle level of intellectually disabled students, and she required assistance to function in society. Second, the victim’s condition rendered her substantially incapable of resisting defendant’s advances. The victim didn’t know the real reason why the defendant asked her to come into another room, his initial acts of touching scared her because she didn’t know what he was going to do, she was shocked when he exposed himself, she was frightened when he forced her to perform fellatio and when she raised her head to stop, he forced it back down to his penis. Finally, there was evidence that the defendant knew or reasonably should have known about the victim’s disability. Specifically, his wife testified that she had discussed the victim’s condition with the defendant. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with second-degree sexual offense pursuant to section 14-27.5.” (2) Reversing the court of appeals, the court held that the State presented sufficient evidence of crime against nature. The defendant conceded knowing that the victim was 17 years old. For the reasons discussed above, the court concluded that there was sufficient evidence that the victim’s conditions rendered her substantially incapable of resisting the defendant’s advances. All of this evidence indicates that the sexual acts were not consensual. In addition, the court noted, the record suggests that the acts were coercive, specifically pointing to the defendant’s conduct of forcing the victim’s head to his penis. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with . . . crime against nature.”

State v. Gentle, ___ N.C. App. ___, 817 S.E.2d 833 (July 3, 2018) aff’d per curiam, ___ N.C. ___, 822 S.E.2d 616 (Feb 1 2019)

The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss a crime against nature charge. The defendant asserted that the State failed to offer substantial evidence that the offense was committed in a public place. The court noted that although Lawrence v. Texas limited the circumstances in which a defendant can be prosecuted for crime against nature, the State may prosecute conduct in which a minor is involved, involving nonconsensual or coercive sexual acts, occurring in a public place, or involving prostitution or solicitation. Here, the trial court instructed the jury on the public place theory. The defendant argued that the State failed to prove that the offense occurred in a public place because it occurred well outside of public view in a dark and wooded area. There is no requirement that the prohibited conduct occur in public view. Also, the victim’s description of the dark, wooded area does not foreclose its status as a public place. She consistently testified that the offense occurred at the bottom of the stairs in a parking lot and other evidence supported that testimony. Thus there was sufficient evidence that the defendant unlawfully engaged in sexual acts in a public place.

In re J.F., 237 N.C. App. 218 (Nov. 18, 2014)

(1) In a delinquency case where the petitions alleged sexual offense and crime against nature in that the victim performed fellatio on the juvenile, the court rejected the juvenile’s argument that the petitions failed to allege a crime because the victim “was the actor.” Sexual offense and crime against nature do not require that the accused perform a sexual act on the victim, but rather that the accused engage in a sexual act with the victim. (2) The court rejected the juvenile’s argument that to prove first-degree statutory sexual offense and crime against nature the prosecution had to show that the defendant acted with a sexual purpose. (3) Penetration is a required element of crime against nature and in this case insufficient evidence was presented on that issue. The victim testified that he licked but did not suck the juvenile’s penis. Distinguishing In re Heil, 145 N.C. App. 24 (2001) (concluding that based on the size difference between the juvenile and the victim and “the fact that the incident occurred in the presumably close quarters of a closet, it was reasonable for the trial court to find . . . that there was some penetration, albeit slight, of juvenile’s penis into [the four-year-old victim’s] mouth”), the court declined the State’s invitation to infer penetration based on the surrounding circumstances.

State v. Hunt, 21 N.C. App. 489 (July 17, 2012) aff’d per curiam, 367 N.C. 700 (Dec 19 2014)

The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found that “on the particular facts of Defendant’s case, crime against nature was a lesser included offense of second-degree sexual offense, and entry of judgment on both convictions subjected Defendant to unconstitutional double jeopardy.” [Author’s note: The N.C. Supreme Court has previously held that crime against nature is not a lesser-included offense of forcible rape or sexual offense, State v. Etheridge, 319 N.C. 34, 50–51 (1987); State v. Warren, 309 N.C. 224 (1983), and that a definitional test applies when determining whether offenses are lesser-included offenses, State v. Nickerson, 316 N.C. 279 (2011).].

In Re R.N., 206 N.C. App. 537 (Aug. 17, 2010)

The trial court erred by denying the juvenile’s motion to dismiss a charge of crime against nature; as to a second charge alleging the same offense, defects in the transcript made appellate review impossible. The first count alleged that the juvenile licked the victim’s genital area. The evidence established that the juvenile licked her private, put his mouth on her private area, and "touch[ed] . . . on her private parts." Citing, State v. Whittemore, 255 N.C. 583 (1961), the court held that the evidence was insufficient to establish penetration. As to the second count, alleging that the juvenile put his penis in the victim’s mouth, the evidence showed that the juvenile forced the victim’s head down to his private and that she saw his private area. Under Whittemore, this was insufficient evidence of penetration. However, when a social worker was asked whether there was penetration, she responded: “[the victim] told me there was (Indistinct Muttering) penetration.” The court concluded that because it could not determine from this testimony whether penetration occurred, it could not meaningfully review the sufficiency of the evidence. The court vacated the adjudication and remanded for a hearing to reconstruct the social worker’s testimony.

State v. Smith, 362 N.C. 583 (Dec. 12, 2008)

The trial judge did not commit plain error in the jury instruction on indecent liberties. When instructing on indecent liberties, the trial judge is not required to specifically identify the acts that constitute the charge.

The defendant, a 69 year-old male, wrote a letter to an 11 year-old girl and asked her grandmother to deliver the letter. The grandmother read the letter, in which the defendant asked the girl to have sex with him to make him “feel young again,” and called the police. The defendant was charged and convicted of engaging in indecent liberties with a minor under G.S. 14-202.1(a)(1). A person is guilty of this offense if he “[w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]”

On appeal, the defendant argued that it was error to deny his motion to dismiss at trial because there was insufficient evidence to show that he was ever “with” the minor as contemplated by the statute, or that he took any steps beyond mere preparation sufficient to constitute an “attempt” under the statute. The Court of Appeals rejected both arguments, citing to similar facts and holdings in State v. McClary, 198 N.C. App. 169 (2009). The statute does not require actual physical touching to constitute a taking or attempted taking of indecent liberties, and the delivery of the letter in this case was sufficient evidence of an attempt. Additionally, the letter itself provided adequate circumstantial evidence of the defendant’s unlawful purpose.

The evidence was sufficient to support a conviction of attempting to take indecent liberties with a child. The defendant posted a Craigslist advertisement seeking female companionship. An adult police officer posing as a 14-year-old girl named Brittany responded to the ad. The two exchanged over 100 messages over a period of 15 days, during which the defendant sent her numerous sexually explicit messages and formulated a plan for them to meet for sex. When the defendant arrived at the location, he was met by police and arrested. In his car officers found two Viagra pills and a tube of KY jelly. At trial the defendant asserted that he did not believe Britney to be an actual minor, but rather an adult female he was role-playing with to help live out her sexual fantasy of pretending to be an underage female in pursuit of an older man. The State’s evidence however indicated that when an officer first interviewed the defendant, he admitted that he believed Britney to be only 14 years old. Additionally in a videotaped custodial interview, the defendant expressed remorse for his action and admitted that he believed Britney to be 14 years old. The defendant was found guilty and appealed. On appeal the defendant argued that the trial court erred by denying his pretrial motion to quash the indecent liberties indictment and his later trial motion to dismiss that charge where the evidence showed that Britney was not an actual child. The court disagreed, finding that the statute covers attempts and here the evidence was sufficient to establish that the defendant attempted to engage in indecent liberties with a child. Specifically, the State presented substantial evidence that the defendant believed Britney to be a minor, with whom he was communicating and sexually pursuing.

The trial court did not err by denying the defendant’s motion to dismiss 33 counts of statutory rape, two counts of statutory sex offense, and 17 counts of indecent liberties as to victim F.H. At trial, the victim testified to sexual contact during her relationship with the defendant; she stated that she and the defendant had vaginal intercourse at least once a week beginning the day they met, and that she performed oral sex before, during, and after each occurrence of sexual intercourse. Two additional witnesses testified to observing the defendant and the victim have sexual intercourse during this time, one of whom also testified to observing oral sex. The defendant asserted that because the State failed to provide a specific number of times that the two had sexual intercourse and oral sex and how many times the defendant touched the victim in an immoral way, the total number of counts is not supported and his motion to dismiss should have been granted. The court disagreed, concluding that although the victim did not explicitly state the specific number of times that the two had sexual relations, a reasonable jury could find the evidence sufficient to support an inference for the number of counts at issue. Specifically, the victim testified that she and the defendant had sexual intercourse at least once a week for span of seventy-one weeks.

State v. Phachoumphone, ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

The evidence was sufficient to sustain a conviction for indecent liberties. The defendant challenged only the sufficiency of the evidence with respect to whether he took or attempted to take an indecent liberty with the victim. Having concluded that the State presented substantial evidence that the defendant digitally penetrated the child victim, the court concluded that the same act supports the challenged element of this offense.

The trial court did not err by denying the defendant’s motion to dismiss a charge of taking indecent liberties with a child. The victim testified that the defendant repeatedly raped her while she was a child living in his house and DNA evidence confirmed that he was the father of her child. The defendant argued that there was insufficient evidence of a purpose to arouse or gratify sexual desire; specifically he argued that evidence of vaginal penetration is insufficient by itself to prove that the rape occurred for the purpose of arousing or gratifying sexual desire. The court rejected the argument that the State must always prove something more than vaginal penetration in order to satisfy this element of indecent liberties. The trial court correctly allowed the jury to determine whether the evidence of the defendant’s repeated sexual assaults of the victim were for the purpose of arousing or gratifying sexual desire.

The defendant was properly convicted of two counts of indecent liberties with victim Melissa in Caldwell County. The State presented evidence that the defendant had sex with his girlfriend in the presence of Melissa, performed oral sex on Melissa, and then forced his girlfriend to perform oral sex on Melissa while he watched. The defendant argued that this evidence only supports one count of indecent liberties with a child. The court disagreed, holding that pursuant to State v. James, 182 N.C. App. 698 (2007), multiple sexual acts during a single encounter may form the basis for multiple counts of indecent liberties.

With respect to an indecent liberties charge, the State presented sufficient evidence that the defendant committed the relevant act for the purpose of arousing or gratifying sexual desire. The court noted the defendant’s purpose “may be inferred from the evidence of the defendant’s actions.” Here, the victim stated that the defendant kissed her on the mouth, told her not to tell anyone about what happened, and continued to kiss her even after she asked him to stop. The victim told the police that the defendant made sexual advances while he was drunk, kissed her, fondled her under her clothing, and touched her breasts and vagina. This evidence, along with other instances of the defendant’s alleged sexual misconduct giving rise to first-degree rape charges, is sufficient evidence to infer the defendant’s purpose.

The evidence was sufficient to support five counts of indecent liberties with a minor where the child testified that the defendant touched the child’s buttocks with his penis “four or five times.” The court rejected the defendant’s argument that this testimony did not support convictions on five counts or that the contact occurred during separate incidents. Acknowledging that the child’s testimony showed neither that the alleged acts occurred either on the same evening or on separate occasions, the court noted that “no such requirement for discrete separate occasions is necessary when the alleged acts are more explicit than mere touchings.” The court cited State v. Williams, 201 N.C. App. 161 (2009), for the proposition that unlike “mere touching” “multiple sexual acts, even in a single encounter, may form the basis for multiple indictments for indecent liberties.”

In an indecent liberties case, the evidence was sufficient to establish that the defendant engaged in conduct for the purpose of arousing or gratifying sexual desire. While at a store, the defendant crouched down to look at the victim’s legs, “fell into” the victim, wrapping his hands around her, and kneeled down, 6-8 inches away from her legs. Other evidence showed that he had asked another person if he could hug her legs and that he admitted to being obsessed with women’s legs.

The evidence was sufficient to establish indecent liberties. The child reported being touched in her genital and rectal area by a male. The victim’s mother testified that she found the victim alone with the defendant on several occasions, and the victim’s testimony was corroborated by her consistent statements to others.

In Re A.W., 209 N.C. App. 596 (Feb. 15, 2011)

The court rejected the juvenile’s argument that the evidence was insufficient to establish indecent liberties in that it failed to show that he acted with a purpose to arouse or gratify his sexual desires. The facts showed that: the juvenile was thirteen and the victim was ten years younger; the juvenile told the victim that the juvenile’s private parts “taste like candy,” and had the victim lick his penis; approximately eleven months prior, the juvenile admitted to having performed fellatio on a four-year-old male relative. The court concluded that the juvenile’s age and maturity, the age disparity between him and the victim, coupled with the inducement he employed to convince the victim to perform the act and the suggestion of his prior sexual activity before this event, was sufficient evidence of maturity and intent to show the required element of “for the purpose of arousing or gratifying sexual desire.”

Mistake of age is not a defense to the crime of indecent liberties. The trial court did not err by instructing the jury that the term willfully meant that the act was done purposefully and without justification or excuse. This instruction “largely mirrors” the North Carolina Supreme Court’s definition of willfully, which is “the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.”

The court held that the (1) defendant, who had a custodial relationship with the child, committed an indecent liberty when he watched the child engage in sexual activity with another person and facilitated that activity; and (2) defendant’s two acts−touching the child’s breasts and watching and facilitating her sexual encounter with another person−supported two convictions.

There was sufficient evidence to survive a motion to dismiss where it showed that the defendant gave the child a letter containing sexually graphic language for the purpose of soliciting sexual intercourse and oral sex for money. Additionally, the jury could reasonably infer that the defendant’s acts of writing and delivering the letter to the child were taken for the purpose of arousing and gratifying sexual desire.

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

In a multi-count indecent liberties with a student case, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss because there was insufficient evidence that the victim was a “student.” The trial court instructed the jury that a “student,” for purposes of G.S. 14-202.4(A), means “a person enrolled in kindergarten, or in grade one through 12 in any school.” The court rejected the defendant’s argument that a person is only “enrolled” during the academic year and that since the offenses occurred during the summer, the victim was not a student at the time.

State v. Hunt, 365 N.C. 432 (Mar. 9, 2013)

(1) Reversing a decision of the court of appeals in State v. Hunt, 211 N.C. App. 452 (May 3, 2011), the court held that expert testimony was not required for the State to establish that the victim had a mental disability for purposes of second-degree sexual offense. In the opinion below, the court of appeals reversed the defendant’s conviction on grounds that there was insufficient evidence as to the victim’s mental disability, reasoning: “where the victim’s IQ falls within the range considered to be ‘mental retardation[,]’ but who is highly functional in her daily activities and communication, the State must present expert testimony as to the extent of the victim’s mental disability as defined by [G.S.] 14-27.5.” The supreme court, however, found the evidence sufficient. First, it noted, there was evidence that the victim was mentally disabled. The victim had an IQ of 61, was enrolled in special education classes, a teacher assessed her to be in the middle level of intellectually disabled students, and she required assistance to function in society. Second, the victim’s condition rendered her substantially incapable of resisting defendant’s advances. The victim didn’t know the real reason why the defendant asked her to come into another room, his initial acts of touching scared her because she didn’t know what he was going to do, she was shocked when he exposed himself, she was frightened when he forced her to perform fellatio and when she raised her head to stop, he forced it back down to his penis. Finally, there was evidence that the defendant knew or reasonably should have known about the victim’s disability. Specifically, his wife testified that she had discussed the victim’s condition with the defendant. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with second-degree sexual offense pursuant to section 14-27.5.” (2) Reversing the court of appeals, the court held that the State presented sufficient evidence of crime against nature. The defendant conceded knowing that the victim was 17 years old. For the reasons discussed above, the court concluded that there was sufficient evidence that the victim’s conditions rendered her substantially incapable of resisting the defendant’s advances. All of this evidence indicates that the sexual acts were not consensual. In addition, the court noted, the record suggests that the acts were coercive, specifically pointing to the defendant’s conduct of forcing the victim’s head to his penis. The court emphasized that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts when a defendant is charged with . . . crime against nature.”

In Re A.W., 209 N.C. App. 596 (Feb. 15, 2011)

The evidence was insufficient to sustain an adjudication of delinquency based on a violation of G.S. 14-27.5 (second-degree sexual offense). On appeal, the State conceded that there was no evidence that the victim was mentally disabled, mentally incapacitated, or physically helpless.

In a sexual offense case, there was sufficient evidence that the victim, an adult with 58 I.Q., was mentally disabled and that the defendant knew or should reasonably have known this. (1) Because the parties agreed that the victim was capable of appraising the nature of his conduct and of communicating an unwillingness to submit to a sexual act (he told the defendant he did not want to do the act), the issue on the mentally disabled element was whether the victim was substantially capable of resisting a sexual act. The victim was mildly mentally retarded. He had difficulty expressing himself verbally, was able to read very simple words and solve very simple math problems, and had difficulty answering questions about social abilities and daily tasks. He needed daily assistance with cooking and personal hygiene. Notwithstanding the victim’s communication of his unwillingness to receive oral sex, the defendant completed the sexual act, allowing an inference that the victim was unable to resist. (2) There was sufficient evidence that the defendant knew or should have known that the victim was mentally disabled. An officer testified that within three minutes of talking with the victim, it was obvious that he had some deficits. By contrast, the defendant appeared normal and healthy. While the defendant had a driver’s license, held regular jobs, took care of the victim’s mother, could connect a VCR, and could read “somewhat,” the victim could not drive, never held a regular job, could cook only in a microwave, had to be reminded to brush his teeth, did not know how to connect a VCR, and could not read. Moreover, the defendant had sufficient opportunity to get to know the victim, having dated the victim’s mother for thirteen years and having spent many nights at the mother’s house, where the victim lived.

State v. Baker, 369 N.C. 586 (June 9, 2017)

Reversing the Court of Appeals, the court held that the evidence was sufficient to support the defendant’s conviction for attempted first-degree rape of a child. The Court of Appeals had reversed the defendant’s conviction finding, in part, that the evidence supported only a conviction for completed rape, not an attempted rape. Citing precedent, the Supreme Court held that evidence of a completed rape is sufficient to support an attempted rape conviction. 

The defendant and his longtime friend, Ivy, began dating in 2017. Per Ivy’s clear and constant requests, their sexual contact with each other was limited to kissing and touching above the waist. Whenever the defendant tried to touch her below the waist, she told him to stop.

On August 1, 2017, Ivy visited the defendant at his home and went with the defendant into his bedroom where they began watching television. They then began to engage in “hot and heavy” physical contact, including kissing, touching Ivy’s breasts, and removing Ivy’s shirt, which she was “okay” with. When the defendant attempted to put his hand down Ivy’s shorts, she pushed him away and told him “no.” The defendant removed his hand momentarily but made repeated attempts. Ivy twisted her legs to keep them together, but eventually the defendant was able to remove her shorts. Ivy again told the defendant “no” and to stop because she “wasn’t ready for that.” The defendant then pinned Ivy’s hands over her head, pushed her underwear aside, and penetrated her vagina with his penis. Ivy told the defendant to stop and said “no,” but he continued to penetrate her. Eventually, Ivy gave up because the defendant did not listen.

After the events, Ivy got dressed and left the home. The defendant walked with her outside, asking if she was okay, to which she responded that she was. Ivy then left in her car. The defendant repeatedly texted Ivy after the incident, asking her via text to promise him she was okay and continuing to text her daily. The defendant made continued attempts to talk to and see Ivy, despite her pleas that he leave her alone. Five days after the incident, Ivy reported the incident to police.

The defendant was indicted on charges of second-degree forcible rape and attempted second-degree forcible rape. The defendant testified that he thought Ivy consented to sex although he admitted Ivy stated “she was not ready” that night and conceded that “she may have pushed me a little bit” when he initiated sexual contact. The defendant was found guilty of second-degree forcible rape and not guilty of attempted second-degree forcible rape.

On appeal, the defendant argued that the trial court erred, or plainly erred, by failing to provide a jury instruction on the defense of consent based on the defendant’s “reasonable belief” that Ivy consented to the sexual acts. The Court of Appeals reviewed the argument under the plain error standard because the defendant did not request this instruction at trial. The Court rejected this argument, noting that neither the Court nor the State Supreme Court have recognized a “reasonable belief of consent” defense to rape. The Court cited State v. Moorman, 320 N.C. 387, 389–92 (1987), in which the Supreme Court held “that a defendant could be convicted of rape by force and against the will of the victim, who was incapacitated and asleep at the time, despite the defendant’s testimony that he mistook the victim for someone he knew and believed she consented to vaginal intercourse.” The Court concluded that because a defendant’s knowledge of whether the victim consented is not a material element of rape and mistaken belief in consent has not been recognized as a defense to rape, the trial court did not err in failing to provide an instruction to that effect. The Court contrasted other statutes involving rape and sex offense in which the General Assembly has used reasonableness language, such as with respect to revocation of consent in G.S. 14-27.20(1a)(b).

The defendant alternatively argued that he had been denied his right to effective assistance of counsel because his defense counsel did not request an instruction on the defendant’s reasonable belief of consent defense. The Court rejected that argument based on the conclusion that the defendant was not entitled to the instruction.

In this second-degree rape case, the trial court did not commit plain error by failing to instruct the jury that lack of consent was an element of rape of a physically helpless person. Because lack of consent is implied in law for this offense, the trial court was not required to instruct the jury that lack of consent was an essential element of the crime.

State v. Lawrence, 363 N.C. 118 (Mar. 20, 2009)

The court, per curiam and without an opinion, affirmed the ruling of the court of appeals that there was substantial evidence that the defendant displayed an article which the victim reasonably believed to be a dangerous or deadly weapon. The evidence showed that the defendant grabbed the victim, told her that he was going to kill her and reached into his pocket to get something; although the victim did not see if the item was a knife or a gun, she saw something shiny and silver that she believed to be a knife.

In a case where the defendant was convicted of second-degree rape, breaking or entering, and two counts of attempted second-degree sexual offense, the trial court did not err by denying the defendant’s motion to dismiss one count of attempted second-degree sexual offense. The defendant asserted that the evidence did not show an intent to commit the act by force and against the victim’s will. The court disagreed:

[W]here the request for fellatio is immediately preceded by defendant tricking the victim into letting him into her apartment, raping her, pulling her hair, choking her, flipping her upside down, jabbing at her with a screwdriver, refusing to allow her to leave, pulling her out of her car, taking her car keys, dragging her to his apartment, slapping her so hard that her braces cut the inside of her mouth, screaming at her, and immediately after her denial of his request, raping her again, we hold that this request is accompanied by a threat and a show of force and thus amounts to an attempt. Had [the victim] complied with defendant’s request, thus completing the sexual act, we cannot imagine that the jury would have found that she had consented to perform fellatio. Given the violent, threatening context, defendant’s request and presentation of his penis to [the victim] amounted to an attempt to engage [the victim] in a sexual act by force and against her will.

In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of her she tried to push him away.

The court reversed a unanimous, unpublished decision of the Court of Appeals in this first-degree sexual offense case, holding that the trial court did not err by giving a disjunctive jury instruction. One of the factors that can elevate a second-degree sexual offense to a first-degree sexual offense is that the defendant was aided and abetted by one or more other persons; another is that the defendant used or displayed a dangerous or deadly weapon. Here, the trial court gave a disjunctive instruction, informing the jury that it could convict the defendant of the first-degree offense if it found that he was aided and abetted by another or that he used or displayed a dangerous or deadly weapon. Where, as here, the trial court instructs the jury disjunctively as to alternative acts which establish an element of the offense, the requirement of unanimity is satisfied. However, when a disjunctive instruction is used, the evidence must be sufficient under both theories. In this case it was undisputed that the evidence was sufficient under the dangerous or deadly weapon prong. The defendant contested the sufficiency of the evidence under the aiding and abetting prong. The court found the evidence sufficient, holding that the Court of Appeals erred in concluding that actual or constructive presence is required for aiding and abetting. As the Court stated in State v. Bond, 345 N.C. 1 (1996), actual or constructive presence is no longer required to prove aiding and abetting. Applying that law, the court held that although the defendant’s accomplices left the room before the defendant committed the sexual act, there was sufficient evidence for the jury to conclude that the others aided and abetted him. Among other things, two of the accomplices taped the hands of the residents who were present; three of them worked together to separate the sexual assault victim from the rest of the group; one of the men grabbed her and ordered her into a bedroom when she tried to sit in the bathroom; and in the bedroom the defendant and an accomplice groped and fondled the victim and removed her clothes. Most of these acts were done by the defendant and others. The act of taping her mouth shut, taping her hands behind her back, moving her into the bedroom, removing her clothing and inappropriately touching her equate to encouragement, instigation and aid all of which “readily meet the standards of . . . aiding and abetting.” The court rejected the defendant’s argument that the evidence was insufficient because he was the only person in the room when the sex act occurred.

In this rape case, because the evidence was clear and positive and not conflicting with respect to penetration, the trial court did not err by failing to instruct on attempted rape. Here, among other things, a sexual assault nurse testified that the victim told her she was penetrated, the victim told the examining doctor at the hospital immediately after the attack that the defendant had penetrated her, the defendant’s semen was recovered from inside the victim’s vagina.

On remand by the NC Supreme Court for reconsideration in light of State v. Carter, 366 N.C. 496 (2013) (no plain error occurred in a child sexual offense case when the trial court failed to instruct on attempted sexual offense even though the evidence of penetration was conflicting), the court held that no plain error occurred when the trial court failed to instruct the jury on attempted second-degree rape and attempted incest when the evidence of penetration was conflicting. As in Carter, the defendant failed to show that the jury would have disregarded any portions of the victim’s testimony stating that penetration occurred in favor of instances in which she said it did not occur. Thus, the defendant failed to show a “probable impact” on the verdict.

Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.

State v. Blow, 368 N.C. 348 (Sept. 25, 2015)

For the reasons stated in the dissenting opinion, the court reversed the opinion below, State v. Blow, 237 N.C. App. 158 (Nov. 4, 2014). In this child sexual assault case in which the defendant was convicted of three counts of first-degree rape, the court of appeals had held that the trial court erred by failing to dismiss one of the rape charges. The court of appeals agreed with the defendant that because the victim testified that the defendant inserted his penis into her vagina “a couple” of times, without identifying more than two acts of penetration, the State failed to present substantial evidence of three counts of rape. The court of appeals found that the defendant’s admission to three instances of “sex” with the victim was not an admission of vaginal intercourse because the defendant openly admitted to performing oral sex and other acts on the victim but denied penetrating her vagina with his penis. The dissenting judge believed that the State presented substantial evidence that was sufficient, if believed, to support the jury’s decision to convict of three counts of first degree rape. The dissenting judge agreed with the majority that the victim’s testimony about penetration “a couple” of times would have been insufficient to convict the defendant of three counts, but noted that the record contains other evidence, including the defendant’s admission that he “had sex” with the victim “about three times.”

State v. Banks, 367 N.C. 652 (Dec. 19, 2014)

Because the defendant was properly convicted and sentenced for both statutory rape and second-degree rape when the convictions were based on a single act of sexual intercourse, counsel was not ineffective by failing to make a double jeopardy objection. The defendant was convicted of statutory rape of a 15-year-old and second-degree rape of a mentally disabled person for engaging in a single act of vaginal intercourse with the victim, who suffers from various mental disorders and is mildly to moderately mentally disabled. At the time, the defendant was 29 years old and the victim was 15. The court concluded that although based on the same act, the two offenses are separate and distinct under the Blockburger “same offense” test because each requires proof of an element that the other does not. Specifically, statutory rape involves an age component and second-degree rape involves the act of intercourse with a victim who suffers from a mental disability or mental incapacity. It continued:

Given the elements of second-degree rape and statutory rape, it is clear that the legislature intended to separately punish the act of intercourse with a victim who, because of her age, is unable to consent to the act, and the act of intercourse with a victim who, because of a mental disability or mental incapacity, is unable to consent to the act. . . .

Because it is the General Assembly’s intent for defendants to be separately punished for a violation of the second-degree rape and statutory rape statutes arising from a single act of sexual intercourse when the elements of each offense are satisfied, defendant’s argument that he was prejudiced by counsel’s failure to raise the argument of double jeopardy would fail. We therefore conclude that defendant was not prejudiced.

The trial court did not err by denying the defendant’s motion to dismiss 33 counts of statutory rape, two counts of statutory sex offense, and 17 counts of indecent liberties as to victim F.H. At trial, the victim testified to sexual contact during her relationship with the defendant; she stated that she and the defendant had vaginal intercourse at least once a week beginning the day they met, and that she performed oral sex before, during, and after each occurrence of sexual intercourse. Two additional witnesses testified to observing the defendant and the victim have sexual intercourse during this time, one of whom also testified to observing oral sex. The defendant asserted that because the State failed to provide a specific number of times that the two had sexual intercourse and oral sex and how many times the defendant touched the victim in an immoral way, the total number of counts is not supported and his motion to dismiss should have been granted. The court disagreed, concluding that although the victim did not explicitly state the specific number of times that the two had sexual relations, a reasonable jury could find the evidence sufficient to support an inference for the number of counts at issue. Specifically, the victim testified that she and the defendant had sexual intercourse at least once a week for span of seventy-one weeks.

The trial court did not err by sentencing the defendant for two crimes—statutory rape and incest—arising out of the same transaction. The two offenses are not the same under the Blockburger test; each has an element not included in the other.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of rape of a child by an adult under G.S. 14-27.2A(a). The defendant had argued that there was insufficient evidence to establish that the offense occurred on or after December 1, 2008, the statute’s effective date. (2) The trial court did not err in sentencing the defendant to 300-369 months imprisonment on this charge. The court rejected the defendant’s argument that the trial court had discretion to sentence the defendant to less than 300 months.

State v. Huss, 367 N.C. 162 (Nov. 8, 2013)

The court per curiam, with an equally divided court, affirmed the decision below, State v. Huss, 223 N.C. App. 480 (2012). That decision thus is left undisturbed but without precedential value. In this case, involving charges of second-degree sexual offense and second-degree rape, the court of appeals had held that the trial court erred by denying the defendant’s motion to dismiss. The State proceeded on a theory that the victim was physically helpless. The facts showed that the defendant, a martial arts instructor, bound the victim’s hands behind her back and engaged in sexual activity with her. The statute defines the term physically helpless to mean a victim who either is unconscious or is physically unable to resist the sexual act. Here, the victim was not unconscious. Thus, the only issue was whether she was unable to resist the sexual act. The court of appeals began by rejecting the defendant’s argument that this category applies only to victims who suffer from some permanent physical disability or condition, instead concluding that factors other than physical disability could render a victim unable to resist the sexual act. However, it found that no such evidence existed in this case. The State had argued that the fact that the defendant was a skilled fighter and outweighed the victim supported the conclusion that the victim was physically helpless. The court of appeals rejected this argument, concluding that the relevant analysis focuses on “attributes unique and personal of the victim.” Similarly, the court of appeals rejected the State’s argument that the fact that the defendant pinned the victim in a submissive hold and tied her hands behind her back supported the conviction. It noted, however, that the evidence would have been sufficient under a theory of force. The defendant also was convicted of kidnapping the victim for the purpose of facilitating second-degree rape. The court of appeals reversed the kidnapping conviction on grounds that the State had proceeded under an improper theory of second-degree rape (the State proceeded on a theory that the victim was physically helpless when in fact force would have been the appropriate theory). The court of appeals concluded: “because the State proceeded under an improper theory of second-degree rape, we are unable to find that the State sufficiently proved the particular felonious intent alleged here.”

The evidence was sufficient to support a conviction of second-degree rape. On appeal the defendant argued that there was insufficient evidence showing that the victim was physically helpless. The State presented evidence that the victim consumed sizable portions of alcohol over an extended period of time, was physically ill in a club parking lot, and was unable to remember anything after leaving the club. When the victim returned to the defendant’s apartment, she stumbled up the stairs and had to hold onto the stair rail. She woke up the following morning with her skirt pulled up to her waist, her shirt off, and her underwear on the bed. Her vagina was sore and she had a blurry memory of pushing someone off of her. She had no prior sexual relationship with the defendant. Moreover, the defendant’s actions following the incident, including his adamant initial denial that anything of a sexual nature occurred and subsequent contradictory admissions, indicate that he knew of his wrongdoings, specifically that the victim was physically helpless. There was sufficient evidence that the victim was physically unable to resist intercourse or to communicate her unwillingness to submit to the intercourse.

In this second-degree rape case, the trial court did not commit plain error by failing to instruct the jury that lack of consent was an element of rape of a physically helpless person. Because lack of consent is implied in law for this offense, the trial court was not required to instruct the jury that lack of consent was an essential element of the crime.

State v. Blow, 368 N.C. 348 (Sept. 25, 2015)

For the reasons stated in the dissenting opinion, the court reversed the opinion below, State v. Blow, 237 N.C. App. 158 (Nov. 4, 2014). In this child sexual assault case in which the defendant was convicted of three counts of first-degree rape, the court of appeals had held that the trial court erred by failing to dismiss one of the rape charges. The court of appeals agreed with the defendant that because the victim testified that the defendant inserted his penis into her vagina “a couple” of times, without identifying more than two acts of penetration, the State failed to present substantial evidence of three counts of rape. The court of appeals found that the defendant’s admission to three instances of “sex” with the victim was not an admission of vaginal intercourse because the defendant openly admitted to performing oral sex and other acts on the victim but denied penetrating her vagina with his penis. The dissenting judge believed that the State presented substantial evidence that was sufficient, if believed, to support the jury’s decision to convict of three counts of first degree rape. The dissenting judge agreed with the majority that the victim’s testimony about penetration “a couple” of times would have been insufficient to convict the defendant of three counts, but noted that the record contains other evidence, including the defendant’s admission that he “had sex” with the victim “about three times.”

The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree rape. Because the victim could not remember the incident, she was unable to testify that she had been raped or that the defendant was the perpetrator. The evidence showed that while out with friends one night, the victim met the defendant. Later that evening, two strangers, John and Jean, responded to a woman screaming for help. They found a man straddling the victim. After throwing the man off, John saw him pull up his pants over an erection. The man ran, chased by John and another person. Jean stayed with the victim, who was on the ground with her pants and underwear pulled to her ankles. An officer saw the chase and detained the defendant, whose pants were undone. John and Jean participated in a show up identification of the defendant shortly thereafter; both identified the defendant as the perpetrator. The victim was taken to the emergency room where a nurse found debris and a small black hair consistent with a pubic hair inside the victim’s vagina. The nurse testified in part that debris cannot enter the vagina unless something had opened the vagina; thus the debris could not have entered merely because she was on the ground. The defendant unsuccessfully moved to dismiss, was convicted and appealed. On appeal the defendant argued that the State failed to produce sufficient evidence that penetration occurred and that he was the perpetrator. The court disagreed, succinctly concluding that a reasonable juror could have inferred that the victim was vaginally penetrated against her will and that the defendant was the perpetrator.

State v. Combs, 226 N.C. App. 87 (Mar. 19, 2013)

In a case in which the defendant was convicted of rape of a child under G.S. 14-27.2A, there was substantial testimony to establish that the defendant engaged in vaginal intercourse with the victim. The victim testified that the defendant put his “manhood inside her middle hole.” Although the victim used potentially ambiguous terms, she explained them, noting that a middle hole is where “where babies come from,” a bottom hole is where things come out of that go in the toilet, and a third hole is for urination. She also described the defendant’s manhood as “down at the bottom but on the front” and not a part a woman has.

State v. Gentle, ___ N.C. App. ___, 817 S.E.2d 833 (July 3, 2018) aff’d per curiam, ___ N.C. ___, 822 S.E.2d 616 (Feb 1 2019)

In this rape and sex offense case, the court rejected the defendant’s argument that the trial court committed plain error by instructing the jury that it could find that the victim suffered serious personal injury in the form of mental injury; even if error occurred, it had no probable impact on the verdict. The defendant argued that the jury instruction was improper because the State presented no evidence of mental injury. The court noted that for several decades the appellate courts had held that it was per se error for the trial court to instruct the jury on a theory that was not supported by the evidence. However, in State v. Boyd, 366 N.C. 548 (2013) (per curiam), the Supreme Court shifted away from the per se rule. Now, a reviewing court must determine whether such an instruction constituted reversible error, without being required to assume that the jury relied on the inappropriate theory. Under North Carolina law, evidence of bodily or mental injuries can constitute serious personal injury for the purposes of forcible rape and forcible sex offense. Here, there was substantial evidence that the defendant inflicted bodily harm on the victim, who was seven months pregnant. The victim struggled to protect her stomach while the defendant forcibly dragged her down 33 concrete stairs and into nearby woods. She sustained extensive bruises and abrasions to most of the left side of her body, including her leg, abdomen, back, side, arm, and shoulder. Although some of the wounds were superficial, others were more significant abrasions. A nurse who testified at trial compared her injuries to “road rash” that a person might suffer after falling off a motorcycle traveling at 55 mph. The victim testified that her injuries were painful and she still bore extensive scars at trial. The court concluded that even assuming arguendo that there was no evidence to support the trial court’s instruction on mental injury, the defendant failed to meet his burden of showing that the alleged error had any probable impact on the jury’s verdict.

There was sufficient evidence to support a conviction for first-degree sex offense. The defendant challenged the sufficiency of the evidence with respect to infliction of serious personal injury on the victim. The defendant, a 43-year-old male approximately 5’10” tall with a medium build, physically and sexually assaulted a 22-year-old female, approximately 5’1” tall and weighing only 96 pounds. The defendant unexpectedly grabbed the victim and threw her down a steep, rocky embankment. He punched her face and head numerous times, and straddled her, pinned her down and strangled her. Although he initially ceased his assault when she stopped resisting, he resumed it when she resumed screaming, punching her face and head before forcing her to perform oral sex on him. The victim was diagnosed with a head injury and experienced pain throughout her body for days. She experienced two black eyes, body bruises, and hoarseness in her voice; and she had difficulty concentrating. At trial the victim testified that she continued to have trouble trusting people, opening up to others, and maintaining friendships. Evidence showed that the victim had difficulty concentrating and remembering and suffered from short-term memory loss from the attack, all of which caused her problems at work. This constitutes sufficient evidence of serious personal injury.

 

Where there was evidence to support a finding that the victim suffered serious personal injury, the trial court did not err in instructing the jury on first-degree sexual offense. The trial court’s instructions were proper where an officer saw blood on the victim’s lip and photographs showed that she suffered bruises on her ribs, arms and face. Additionally the victim was in pain for 4 or 5 days after the incident and due to her concerns regarding lack of safety the victim, terminated her lease and moved back in with her family. At the time of trial, roughly one year later, the victim still felt unsafe being alone. This was ample evidence of physical injury and lingering mental injury.

Mistake of age and consent are not defenses to statutory rape.

The State failed to introduce sufficient evidence of sexual battery. The 13-year-old juvenile was adjudicated delinquent in part based on two counts of sexual battery against two 11-year-old female schoolmates. It was alleged that he draped his arms around the girls’ shoulders in order to smear a glowing liquid on them during an evening of Halloween trick-or-treating. The State failed to introduce sufficient evidence that the juvenile touch the tops of the girls’ breasts for a sexual purpose. One girl testified that the juvenile rubbed “this green glow stick stuff” on her leaving glowing liquid on her shirt above her collarbone. The other girl testified that the juvenile reached his arm around her shoulder and “put this weird green glowing stuff” on her arm and back, also touching her “boobs” over her sweatshirt. In criminal cases involving adult defendants the element of acting for the purpose of sexual arousal, sexual gratification, or sexual abuse may be inferred from the very act itself. However, an intent to arouse or gratify sexual desires may not be inferred in children under the same standard. Rather, a sexual purpose does not exist without some evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting. Here, the juvenile denied touching either girl’s breasts, saying that he only put his hand around their shoulders; this account was supported by witnesses. Neither the location nor the alleged manner of the touching was secretive in nature; rather, the incident occurred on a busy public street on Halloween. The evidence was undisputed that the juvenile have been wiping green glowing liquid on trees, signs, and other young people during the evening. Nothing about his attitude suggested a sexual motivation; neither girl said that he made any sexual remarks. And when the girls ran away, he did not try to pursue them.

In re K.C., 226 N.C. App. 452 (Apr. 16, 2013)

There was insufficient evidence to support a delinquency adjudication for sexual battery. Although there was sufficient evidence of sexual contact, there was insufficient evidence of a sexual purpose. When dealing with children, sexual purpose cannot be inferred from the act itself and that there must be “evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting.” It continued, “factors like age disparity, control by the juvenile, the location and secretive nature of the juvenile’s actions, and the attitude of the juvenile should be taken into account.” Evaluating the circumstances, the court found the evidence insufficient.

In a sexual battery case, the evidence was sufficient to establish that the defendant grabbed the victim’s crotch for the purpose of sexual arousal, sexual gratification, or sexual abuse. The defendant previously had asked the victim for her phone number and for a date, and had brushed against her thigh in such a manner that the victim reported the incident to her supervisor and was instructed not to be alone with the defendant.

Assault is not a lesser-included offense of sexual battery.

The trial court did not commit plain error by instructing the jury that it could consider whether or not the use of a bottle constituted a deadly weapon during the commission of a sexual offense. The defendant and his accomplice, after tying the victim’s hands and feet, shoved a rag into his mouth, pulled his pants down, and inserted a bottle into his rectum. The victim thought that he was going to die and an emergency room nurse found a tear in the victim’s anal wall accompanied by “serious drainage.”

The court affirmed a conviction for second-degree sexual offense in a case where the defendant surprised a Target shopper by putting his hand up her skirt and penetrating her vagina. The court rejected the defendant’s argument that because his action surprised the victim, he did not act by force and against her will. 

(1) In a second-degree rape and sexual offense case, the evidence sufficiently established use of force. The victim repeatedly declined the defendant’s advances and told him to stop and that she didn’t want to engage in sexual acts. The defendant pushed her to the ground. When he was on top of her she tried to push him away. (2) Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.

In Re T.W., 221 N.C. App. 193 (June 5, 2012)

Because there was no evidence of threat of force or special relationship there was insufficient evidence of constructive force to support second-degree sexual offense charges. The State had argued that constructive force was shown by (a) the fact that the juvenile threatened the minor victims with exposing their innermost secrets and their participation with him in sexual activities, and (2) the power differential between the juvenile and the victims. Rejecting this argument, the court concluded: for “the concept of constructive force to apply, the threats resulting in fear, fright, or coercion must be threats of physical harm.” Acknowledging that constructive force also can be inferred from a special relationship, such as parent and child, the court concluded that the relationships in the case at hand did not rise to that level. In this case the juvenile was a similar age to the victims and their relationship was one of leader and follower in school.

The defendant became abusive and violent toward his romantic partner, D.C., after finding out that she had engaged in an intimate relationship while he was in prison for a year. The defendant forced D.C. to drive him to his cousin’s house, while telling her that she would be having sex with both the defendant and his cousin. During the drive, the defendant repeatedly beat D.C. and threatened to hit her with grip pliers. Once the cousin got in the car, the defendant instructed D.C. to drive to the cousin’s sister’s house, where the three entered a shed behind the house.

While in the shed, the defendant demanded D.C. to perform oral sex on him while the cousin watched and told the cousin to prepare to have sex with D.C. Throughout the incident, D.C. refused the defendant’s demands several times, which resulted in him beating her with his hands, feet, and pliers. The defendant and the cousin forcibly removed D.C.’s shorts as she continued to object. At one point, and after several beatings, D.C. was able to escape and drive to the police station to report the crimes.

At trial, the jury found the defendant guilty of first-degree kidnapping and first-degree sex offense. On appeal, the defendant argued that the trial court should have given a jury instruction for the lesser included offense of second-degree forcible sex offense. Specifically, the defendant argued that the evidence of the element requiring that the perpetrator be “aided or abetted by one or more persons” supported the instruction on the lesser-included offense. Slip op. at ¶ 22.

The Court of Appeals disagreed, finding that the cousin willingly accompanied and rode in the car with the couple; the cousin followed instructions from the defendant and waited while the defendant forced D.C. to enter the shed; the cousin helped the defendant restrain and remove D.C.’s shorts; and the cousin stated to D.C. she “might as well get it over with,” referring to submission to the sexual assault. The Court determined that the cousin was not a passive bystander and in fact assisted, promoted, and encouraged the defendant in the sexual offense. Thus, the Court held that no contradictory evidence was presented in relation to the element in question to justify an instruction on a lesser-included offense.

Assault on a female is not a lesser-included of first-degree sexual offense.

State v. Hunt, 221 N.C. App. 489 (July 17, 2012) aff’d per curiam, 367 N.C. 700 (Dec 19 2014)

The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found that “on the particular facts of Defendant’s case, crime against nature was a lesser included offense of second-degree sexual offense, and entry of judgment on both convictions subjected Defendant to unconstitutional double jeopardy.” [Author’s note: The N.C. Supreme Court has previously held that crime against nature is not a lesser-included offense of forcible rape or sexual offense, State v. Etheridge, 319 N.C. 34, 50–51 (1987); State v. Warren, 309 N.C. 224 (1983), and that a definitional test applies when determining whether offenses are lesser-included offenses, State v. Nickerson, 316 N.C. 279 (2011).].

In this juvenile case, the trial court erred by denying the respondent’s motions to dismiss charges of second-degree sexual exploitation of a minor and first-degree forcible sexual offense but did not err by accepting his admission of attempted larceny in an incident unrelated to the alleged sex crimes.

The State relied on an acting in concert theory in proceeding against the respondent on the second-degree sexual exploitation of a minor charge because all testimony was that a person other than the respondent made a video recording of the respondent apparently engaging in non-consensual sexual contact with the victim.  The court reviewed the evidence presented at trial and found it insufficient to show that the respondent and the person who recorded the video acted with a common plan or scheme to make the recording.  The court stated that the evidence showed that the respondent “did not wish to be recorded and that [the other person’s] decision to record the incident was of his own volition.”

The evidence of penetration was insufficient to support the first-degree forcible sexual offense charge allegedly based on anal intercourse as the victim unambiguously and explicitly denied that anal penetration occurred and the State did not present sufficient other evidence corroborating the allegation of penetration.  The court rejected the State’s argument that a witness’s description of the incident as the respondent and the victim “doing it” was sufficient evidence of penetration and noted that at the adjudicatory hearing the State had conceded “that there was not evidence of penetration.”

There was a sufficient factual basis to support the respondent’s admission to an unrelated charge of attempted misdemeanor larceny of a bicycle where the respondent was found near the crime scene with two people fitting a witness’s description of the suspects, had bolt cutters in his backpack, and denied committing but expressed some knowledge of the larceny to an investigating officer.  Though the trial court did not err by accepting the respondent’s admission to attempted misdemeanor larceny, the court could not remand the matter for a new disposition hearing to account for its rulings related to the sufficiency of the evidence of the sex crimes because the trial court’s juvenile jurisdiction terminated when the respondent turned eighteen years old while the appeal was pending. 

Justice Newby concurred in part and dissented in part, expressing the view that the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and that the matter should be remanded for entry of an amended adjudication for that offense.

In this Forsyth County case, the defendant was convicted of four counts of statutory sexual offense with a child by an adult and sixteen charges of indecent liberties with a child based on incidents involving an 8-year-old victim. The victim testified that the defendant rubbed his fingers in circles on her vagina, which she described as “where I wipe at” and “the place where I pee.” She also said that nothing had ever gone “inside” her vagina. On appeal, the defendant argued that there was insufficient evidence to support the sexual offense conviction because there was no evidence of penetration. The Court of Appeals disagreed. A “sexual act” for the purposes of a sexual offense includes the penetration, however slight, by any object into the genital or anal opening of another person’s body, G.S. 14-27.20(4), and case law indicates that penetration of the labia is sufficient penetration within the meaning of that definition. Here, the victim’s testimony indicated that the defendant touched her on her urethral opening, which is located within the labia. The Court of Appeals concluded that the State therefore presented sufficient evidence to support the element of penetration.

In this sex offense with a child case, the trial court did not err by prohibiting the defendant from introducing evidence of the immigration status of the victim’s mother, a testifying witness, on the basis that the evidence was irrelevant under Rule 401.  The mother’s immigration status did not have any tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable.  Further, the trial court did not err by overruling the defendant’s objection to the mother testifying that the defendant had refused to be tested for herpes after it was discovered that the child victim had herpes.  This testimony was not unfairly prejudicial under Rule 403.  Finally, the trial court did not err by denying the defendant’s motion to dismiss a charge of first degree statutory sexual offense for insufficient evidence.  The victim testified that the defendant touched her with his fingers “in the inside” in “the place where [she] go[es] pee,” and this testimony was sufficient evidence of a sexual act for purposes of the offense.

Judge Murphy concurred in the result only, writing a separate opinion to discuss when a witness’s immigration status and knowledge of U-Visas may be relevant for cross-examination, as well as other issues in the case.

The evidence was sufficient to support a conviction for sexual offense of a 13, 14 or 15-year-old. On appeal the defendant argued that the evidence was insufficient as to penetration. At trial the prosecutor asked the victim “How far would you say he was able to get with -- did he actually go between your labia? Do you understand my question?” The victim answered, “Yes.” The prosecutor asked again, “Was he able to do that?” The victim responded again, “Yes.” Viewing the victim’s testimony in the light most favorable to the State, reasonable jurors could have concluded that the State presented sufficient evidence that the defendant penetrated the victim’s labia.

State v. Phachoumphone, ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

In this child sexual assault case, the evidence was sufficient to support a conviction for statutory sex offense with a child by an adult. Specifically, the court rejected the defendant’s argument that there was insufficient evidence that he digitally penetrated the victim. Among other things: during the victim’s testimony, she demonstrated what the defendant did to her vagina by inserting her finger into a hole that the interpreter created with her hand; the victim stated that the defendant “put his finger in” her private part; a doctor testified that the six-year-old victim’s hymen was substantially missing, an irregular finding which could only have been caused by a penetrating injury; and the doctor observed redness in the vaginal area behind where the hymen was, which indicated a penetrating injury within the last 48 hours.

In re J.F., 237 N.C. App. 218 (Nov. 18, 2014)

In a sexual offense case involving fellatio, proof of penetration is not required.

There was sufficient evidence of penetration during anal intercourse to sustain convictions for statutory sex offense and sexual activity by a substitute parent. The victim testified that the defendant “inserted his penis . . . into [her] butt,” that the incident was painful, and that she wiped blood from the area immediately after the incident.

State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011) rev’d on other grounds, 366 N.C. 496 (Apr 12 2013)

There was sufficient evidence of anal penetration to support a sexual offense charge. Although the evidence was conflicting, the child victim stated that the defendant’s penis penetrated her anus. Additionally, a sexual assault nurse examiner testified that the victim’s anal fissure could have resulted from trauma to the anal area.

The evidence was sufficient of a sexual offense where the child victim testified that the defendant reached beneath her shorts and touched between “the skin type area” in “[t]he area that you pee out of” and that he would rub against a pressure point causing her pain and to feel faint. A medical expert testified that because of the complaint of pain, the victim’s description was “more suggestive of touching . . . on the inside.”

State v. Huss, 367 N.C. 162 (Nov. 8, 2013)

The court per curiam, with an equally divided court, affirmed the decision below, State v. Huss, 223 N.C. App. 480 (2012). That decision thus is left undisturbed but without precedential value. In this case, involving charges of second-degree sexual offense and second-degree rape, the court of appeals had held that the trial court erred by denying the defendant’s motion to dismiss. The State proceeded on a theory that the victim was physically helpless. The facts showed that the defendant, a martial arts instructor, bound the victim’s hands behind her back and engaged in sexual activity with her. The statute defines the term physically helpless to mean a victim who either is unconscious or is physically unable to resist the sexual act. Here, the victim was not unconscious. Thus, the only issue was whether she was unable to resist the sexual act. The court of appeals began by rejecting the defendant’s argument that this category applies only to victims who suffer from some permanent physical disability or condition, instead concluding that factors other than physical disability could render a victim unable to resist the sexual act. However, it found that no such evidence existed in this case. The State had argued that the fact that the defendant was a skilled fighter and outweighed the victim supported the conclusion that the victim was physically helpless. The court of appeals rejected this argument, concluding that the relevant analysis focuses on “attributes unique and personal of the victim.” Similarly, the court of appeals rejected the State’s argument that the fact that the defendant pinned the victim in a submissive hold and tied her hands behind her back supported the conviction. It noted, however, that the evidence would have been sufficient under a theory of force. The defendant also was convicted of kidnapping the victim for the purpose of facilitating second-degree rape. The court of appeals reversed the kidnapping conviction on grounds that the State had proceeded under an improper theory of second-degree rape (the State proceeded on a theory that the victim was physically helpless when in fact force would have been the appropriate theory). The court of appeals concluded: “because the State proceeded under an improper theory of second-degree rape, we are unable to find that the State sufficiently proved the particular felonious intent alleged here.”

There was sufficient evidence to support a conviction for first-degree sex offense. The defendant challenged the sufficiency of the evidence with respect to infliction of serious personal injury on the victim. The defendant, a 43-year-old male approximately 5’10” tall with a medium build, physically and sexually assaulted a 22-year-old female, approximately 5’1” tall and weighing only 96 pounds. The defendant unexpectedly grabbed the victim and threw her down a steep, rocky embankment. He punched her face and head numerous times, and straddled her, pinned her down and strangled her. Although he initially ceased his assault when she stopped resisting, he resumed it when she resumed screaming, punching her face and head before forcing her to perform oral sex on him. The victim was diagnosed with a head injury and experienced pain throughout her body for days. She experienced two black eyes, body bruises, and hoarseness in her voice; and she had difficulty concentrating. At trial the victim testified that she continued to have trouble trusting people, opening up to others, and maintaining friendships. Evidence showed that the victim had difficulty concentrating and remembering and suffered from short-term memory loss from the attack, all of which caused her problems at work. This constitutes sufficient evidence of serious personal injury.

 

In re J.F., 237 N.C. App. 218 (Nov. 18, 2014)

The court rejected the juvenile’s argument that to prove first-degree statutory sexual offense and crime against nature the prosecution had to show that the defendant acted with a sexual purpose.

The trial court did not err by denying the defendant’s motion to dismiss 33 counts of statutory rape, two counts of statutory sex offense, and 17 counts of indecent liberties as to victim F.H. At trial, the victim testified to sexual contact during her relationship with the defendant; she stated that she and the defendant had vaginal intercourse at least once a week beginning the day they met, and that she performed oral sex before, during, and after each occurrence of sexual intercourse. Two additional witnesses testified to observing the defendant and the victim have sexual intercourse during this time, one of whom also testified to observing oral sex. The defendant asserted that because the State failed to provide a specific number of times that the two had sexual intercourse and oral sex and how many times the defendant touched the victim in an immoral way, the total number of counts is not supported and his motion to dismiss should have been granted. The court disagreed, concluding that although the victim did not explicitly state the specific number of times that the two had sexual relations, a reasonable jury could find the evidence sufficient to support an inference for the number of counts at issue. Specifically, the victim testified that she and the defendant had sexual intercourse at least once a week for span of seventy-one weeks.

State v. Sweat, 216 N.C. App. 321 (Oct. 18, 2011) aff’d in part, rev’d in part, 366 N.C. 79 (Jan 1 2012)

In a case in which there was a dissenting opinion, the court held that the trial court did not err with respect to instructions on two counts because the jury could properly have found either anal intercourse or fellatio and was not required to agree as to which one occurred.

The defendant was properly convicted of two counts of sexual offense when the evidence showed that the victim awoke to find the defendant’s hands in her vagina and in her rectum at the same time.

With respect to a sexual offense charge allegedly committed on Melissa in Burke County, the court held that the State failed to present substantial evidence that a sexual act occurred. The only evidence presented by the State regarding a sexual act that occurred was Melissa’s testimony that the defendant placed his finger inside her vagina. However, this evidence was not admitted as substantive evidence. The State presented specific evidence that the defendant performed oral sex on Melissa—a sexual act under the statute--but that act occurred in Caldwell County, not Burke. Although Melissa also testified generally that she was "sexually assaulted" more than 10 times, presumably in Burke County, nothing in her testimony clarified whether the phrase "sexual assault," referred to sexual acts within the meaning of G.S. 14-27.4A, vaginal intercourse, or acts amounting only to indecent liberties with a child. Thus, the court concluded the evidence is insufficient to support the Burke County sexual offense conviction.

In re J.F., 237 N.C. App. 218 (Nov. 18, 2014)

(1) In a delinquency case where the petitions alleged sexual offense and crime against nature in that the victim performed fellatio on the juvenile, the court rejected the juvenile’s argument that the petitions failed to allege a crime because the victim “was the actor.” Sexual offense and crime against nature do not require that the accused perform a sexual act on the victim, but rather that the accused engage in a sexual act with the victim. (2) The court rejected the juvenile’s argument that to prove first-degree statutory sexual offense and crime against nature the prosecution had to show that the defendant acted with a sexual purpose.

In this child sexual abuse case, the trial court erred by denying the defendant’s motion to dismiss first-degree sex offense charges where there was no substantive evidence of a sexual act; the evidence indicated only vaginal penetration, which cannot support a conviction of sexual offense.

Deciding an issue of first impression, the court held that the defendant’s act of forcing the victim at gunpoint to penetrate her own vagina with her own fingers constitutes a sexual act supporting a conviction for first-degree sexual offense.

There was sufficient evidence that a parent-child relationship existed between the defendant and the victim to sustain a conviction for sexual offense in a parental role. A parental role includes evidence of emotional trust, disciplinary authority, and supervisory responsibility, with the most significant factor being whether the defendant and the minor “had a relationship based on trust that was analogous to that of a parent and child.” The defendant paid for the victim’s care and support when she was legally unable to work and maintain herself and made numerous representations of his parental and supervisory role over her. He indicated to police he was her “godfather,” represented to a friend that he was trying to help her out and get her enrolled in school, and told his other girlfriends the she was his “daughter.” Additionally, while there was no indication that the defendant was a friend of the victim’s family, he initiated a relationship of trust by approaching the victim with references to his daughter, who was the same age, and being “always” present when the two girls were “hanging out” at his house. This was sufficient evidence of the defendant’s exercise of a parental role over the victim.

The evidence was sufficient to sustain the defendant’s convictions for sex offense by a substitute parent. The case involved allegations of digital penetration. On appeal the defendant argued that the evidence was insufficient to establish that he penetrated the victim’s genitals. The only evidence offered by the State that could establish penetration came from an officer who testified to the defendant’s confession that he put his hands “in [the victim’s] genital area”, causing her to become sexually aroused. The officer recounted that the defendant talked about the victim being “wet.” The court concluded that a rational juror, hearing this description of the defendant being “in” the victim’s genital area and feeling that she was “wet” and sexually stimulated could reasonably infer that he at least penetrated her labia. Although the evidence does not conclusively establish penetration, a juror could reasonably infer that it occurred.

There was sufficient evidence of penetration during anal intercourse to sustain convictions for statutory sex offense and sexual activity by a substitute parent. The victim testified that the defendant “inserted his penis . . . into [her] butt,” that the incident was painful, and that she wiped blood from the area immediately after the incident.

The court held that (1) the defendant, who was employed by a corporation at its boys’ group home location was a custodian of the victim, who lived at the corporation’s girls’ group home location; and (2) the State need not prove that the defendant knew that he was the victim’s custodian.

The defendant worked full-time at Knightdale High School, initially as an In-School Suspension teacher and then as a Physical Education teacher. Although not certified as a teacher, he worked the same hours as a certified teacher, which included a regularly scheduled planning period. During his time teaching at the school, the defendant met a minor, D.F., a student at the school. On October 29, 2014, D.F. went to the defendant’s home and later alleged the two engaged in sexual activity.

The defendant was indicted for two counts of engaging in sexual activity with a student pursuant to G.S. 14-27.7. At the close of the State’s evidence, defense counsel made a motion to dismiss based on insufficient evidence, asserting that the State’s evidence was conflicting. The trial court denied the motion. At the end of all the evidence, defense counsel renewed the motion to dismiss, asserting that there was no physical evidence. The trial court again denied the motion, and the defendant was ultimately convicted of two counts of sexual activity with a student.

(1) On appeal, the defendant argued that (1) the evidence at trial did not establish that he was a “teacher” within the meaning of G.S. 14-27.7, and (2) alternatively, there was a fatal variance between the indictment and proof at trial since the indictment alleged that he was a “teacher,” but his status as a substitute teacher made him “school personnel” under G.S. 14-27.7(b). The Court of Appeals concluded that the defendant failed to preserved either argument for appellate review, reasoning that because the defendant’s motions to dismiss “focused on the veracity of D.F.’s testimony and the lack of physical evidence” that sexual conduct had occurred, the defendant preserved a sufficiency of the evidence argument for only that specific element. The Court of Appeals also concluded that the fatal variance argument was not preserved because it was not expressly presented to the trial court.

At the time that the Court of Appeals decided this case, the Supreme Court has not addressed the issue of when a motion to dismiss preserves all sufficiency of the evidence issues for appellate review. Subsequently, in State v. Golder, the Court held that “Rule 10(a)(3) provides that a defendant preserves all insufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.” 374 N.C. 238 (2020). The Court held that because the defendant here made a general motion to dismiss at the appropriate time and renewed that motion to dismiss at the close of the evidence., his motion properly preserved all sufficiency of the evidence issues.

(2) On the merits of the case, the defendant argued that there was no substantial evidence that he was a “teacher” under the statute. G.S. 14-27.7(b) (2013) provides: “For purposes of this subsection, the terms “school”, “school personnel”, and “student” shall have the same meaning as in G.S. 14-202.4(d),” which in turn refers to G.S. 115C-332. The latter statute provides that “school personnel” includes substitute teachers, driving training teachers, bus drivers, clerical staff, and custodians. The Court determined that it was “evident that the General Assembly intended to cast a wide net prohibiting criminal sexual conduct with students by any adult working on school property” and that “a person’s categorization as a ‘teacher’ should be based on a common-sense evaluation of all of the facts of the case, not a hyper-technical interpretation based solely on the individual’s title.”

Despite his lack of certification, defendant was at the school on a long-term assignment, an employee of Wake County Public Schools, and held to the same standards as a certified teacher. Defendant taught at the school daily, had a planning period, and had full access to students as any certified teacher would. The only difference between the defendant and other teachers was his title based on his lack of a teaching certificate at that time. The Court held that the defendant was correctly deemed a teacher in this case and the trial court properly denied the defendant’s motion to dismiss.

The defendant advised or enticed an officer posing as a child to meet the defendant, on the facts presented. The court noted that since the terms advise and entice were not defined by the statute, the General Assembly is presumed to have used the words to convey their natural and ordinary meaning.

The trial court did not err by sentencing the defendant for two crimes—statutory rape and incest—arising out of the same transaction. The two offenses are not the same under the Blockburger test; each has an element not included in the other.

A defendant in a felony indecent exposure case under G.S. 14-190.9(a1) (person at least 18 years of age exposing private parts in the presence of a person less than 16) is not entitled to an instruction requiring the jury to find that the victim could have seen the exposed private part had the victim looked.  Rather, it is sufficient for the instruction to explain that the jury must find beyond a reasonable doubt that the exposure was in the presence of another people.  In this case, the defendant exposed himself to a woman while sitting in the driver’s seat of his car.  Her child was playing nearby and the defendant was charged with felony indecent exposure for exposing himself in the presence of the child.  The trial court refused to give the defendant’s requested jury instruction that for it to find that the defendant exposed himself in the presence of the child it must find that the child “could have seen [the exposure] had [he] looked,” and instead instructed that the element of the offense was satisfied if it found that the exposure “was in the presence of at least one other person.”  Examining its analysis of a prior version of G.S. 14-190.9 in State v. Fly, 348 N.C. 556 (1998) and the plain language of the current statute, the court held: 

[T]he requirement that the exposure be “in the presence of” the victim does not require a jury to find that the victim could have seen the exposed private parts had he or she looked. The statutory requirement that the exposure be in the presence of another focuses on where a defendant places himself relative to others; it concerns what the defendant does, not what the victim does or could do. See, e.g., Fly, 348 N.C. at 561, 501 S.E.2d at 659 (“The statute does not go to what the victim saw but to what defendant exposed in her presence without her consent.”). If a defendant exposes himself in public and has positioned himself so he is sufficiently close to someone under the age of sixteen, the presence element of subsection 14-190.9(a1) is satisfied.

The court went on to find that there was sufficient evidence in this case that the defendant’s exposure was in the presence of the child victim where the child was about twenty feet away from the defendant playing in the yard of the child’s home.

Where in the course of one instance the defendant exposed himself to multiple people, one of which was a minor and one of which was an adult, the defendant could not be found guilty of both misdemeanor indecent exposure under G.S. 14-190.9(a) and felonious indecent exposure under G.S. 14-190.9(a1). The misdemeanor indecent exposure statute provides in part: “Unless the conduct is punishable under subsection (a1) of this section” a person who exposes him or herself “in the presence of any other person or persons” shall be guilty of a class 2 misdemeanor. Subsection (a1) makes it a felony to expose oneself, in certain circumstances, to a person less than 16 years of age. The defendant was convicted of a felony under subsection (a1) because one of the victims was under 16. However, subsection (a), by its terms, forbids conduct from being the basis of a misdemeanor conviction if it is also punishable as felony indecent exposure. The court framed the issue as one of statutory construction, not double jeopardy.

(1) The trial court properly denied the defendant’s motion to dismiss in this felony indecent exposure case. The evidence showed that a neighbor and her 4-year-old daughter saw the defendant masturbating in front of his garage. The court rejected the defendant’s argument that because he was on his own property he was not in a “public place” within the meaning of the statute. The court noted that prior case law has held that a public place includes one that is open to the view of the public at large. Here, the defendant’s garage was directly off a public road and was in full view from the street and from the front of his neighbor’s house. (2) Where the neighbor and her daughter saw the defendant as they exited their car, the trial court did not commit plain error by failing to instruct the jury that the defendant must have been in view of the public with the naked eye and without resort to technological aids. Even if such an instruction may be appropriate in some cases here it was wholly unsupported by the evidence.

(1) The evidence was insufficient to support a conviction under G.S. 14-208.18(a)(1), for being a sex offender on the premises of a daycare. The defendant was seen in a parking lot of a strip mall containing a daycare, other businesses, and a restaurant. Next-door to the daycare was a hair salon; next to the hair salon was a tax business. The three businesses shared a single building as well as a common parking lot. A restaurant in a separate, freestanding building shared the same parking lot. None of the spaces in the parking lot were specifically reserved or marked as intended for the daycare. The daycare, including its playground area, was surrounded by a chain-link fence. The court agreed with the defendant that the State failed to present sufficient evidence that the shared parking lot was part of the premises of the daycare. It stated: “[T]he shared parking lot is located on premises that are not intended primarily for the use, care, or supervision of minors. Therefore, we conclude that a parking lot shared with other businesses (especially with no designation(s) that certain spaces “belong” to a particular business) cannot constitute “premises” as set forth in subsection (a)(1) of the statute.” (2) The defendant’s guilty plea to unlawfully being within 300 feet of a daycare must be vacated in light of a Fourth Circuit’s decision holding G.S. 14-208.18(a)(2) to be unconstitutional. The defendant was indicted and pled guilty to violating G.S. 14-208.18(a)(2), which prohibits certain persons from being within 300 feet a location intended primarily for the use, care, or supervision of minors. While his direct appeal was pending, the Fourth Circuit held that statute to be unconstitutionally overbroad in violation of the First Amendment. Thus the conviction must be vacated.

(1) In a case involving charges under G.S. 14-208.18(a) (sex offender being present at a location used by minors, here a church preschool), where the State was required to prove (in part) that the defendant was required to register as a sex offender and was so required because of a conviction for an offense where the victim was less than 16 years old, the age of the victim was a factual question to which the defendant could stipulate. (2) The trial court did not err by denying the defendant’s motion to dismiss, which had asserted that the State failed to produce substantial evidence that the defendant knew that a preschool existed on the church premises. The evidence showed that the church advertised the preschool with flyers throughout the community, on its website, and with signs around the church. Additionally, the entrance to the church office, where defendant met with the pastor, was also the entrance to the nursery and had a sign explicitly stating the word “nursery.” The court rejected the defendant’s argument that the State was required to show that he should have known children were actually on the premises at the exact time when he was there. It reasoned: “[T]he actual presence of children on the premises is not an element of the crime, and the State needed only to demonstrate that defendant was ‘knowingly’ ‘[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors’ whether the minors were or were not actually present at the time.” (3) The court rejected the defendant’s facial overbreadth challenge to the statute reasoning that because his argument was not based on First Amendment rights, he lacked standing to assert the challenge. (4) The court rejected the defendant’s argument that G.S. 14-208.18(a) was unconstitutionally vague as applied to him, stating: “[G.S.] 14-208.18(a)(2) may be many things, but it is not vague.”

The trial court erred by denying the defendant’s motion to dismiss a charge that the defendant was a registered sex offender unlawfully on premises used by minors in violation of G.S. 14-208.18(a). The statute prohibits registered sex offenders from being “[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors[.]” The charges arose out of the defendant’s presence at a public park, specifically, sitting on a bench within the premises of the park and in close proximity to the park’s batting cage and ball field. The court agreed with the defendant that the State failed to present substantial evidence that the batting cages and ball fields constituted locations that were primarily intended for use by minors. At most, the State’s evidence established that these places were sometimes used by minors.

(1) G.S. 14-208.18(a)(1)-(3) creates three separate and distinct criminal offenses. (2) Although the defendant did not have standing to assert that G.S. 14-208.18(a)(3) was facially invalid, he had standing to raise an as applied challenge. (3) G.S. 14-208.18(a)(3), which prohibits a sex offender from being “at any place” where minors gather for regularly scheduled programs, was unconstitutionally vague as applied to the defendant. The defendant’s two charges arose from his presence at two public parks. The State alleged that on one occasion he was “out kind of close to the parking lot area or that little dirt road area[,]” between the ballpark and the road and on the second was at an “adult softball field” adjacent to a “tee ball” field. The court found that on these facts, the portion of G.S. 14-208.18(a)(3), prohibiting presence “at any place,” was unconstitutionally vague as applied to the defendant because it fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, and it fails to provide explicit standards for those who apply the law. (4) The trial court lacked jurisdiction to rule that G.S. 14-208.18(a)(2) was unconstitutional where the defendant only was charged with a violation of G.S. 14-208.18(a)(3) and those provisions were severable.

North Carolina’s statute, G.S. 14–202.5, making it a felony for a registered sex offender to gain access to a number of websites, including common social media websites like Facebook and Twitter, violates the First Amendment. After the defendant, a registered sex offender, accessed Facebook, he was charged and convicted under the statute. The Court of Appeals struck down his conviction, finding that the statute violated the First Amendment. The N.C. Supreme Court reversed. The U.S. Supreme Court granted certiorari and reversed North Carolina’s high court. Noting the case “is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet,” the Court noted that it “must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” The Court found that even assuming that the statute is content neutral and thus subject to intermediate scrutiny, it cannot stand. In order to survive intermediate scrutiny, a law must be narrowly tailored to serve a significant governmental interest. Considering the statute at issue, the Court concluded:

[T]the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. (citations omitted)

The Court went on to hold that the State had not met its burden of showing that “this sweeping law” is necessary or legitimate to serve its preventative purpose of keeping convicted sex offenders away from vulnerable victims. The Court was careful to note that its opinion “should not be interpreted as barring a State from enacting more specific laws than the one at issue.” It continued: “Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”

State v. Barnett, 368 N.C. 710 (Mar. 18, 2016)

On discretionary review of a unanimous decision of the Court of Appeals, 239 N.C. App. 101 (2015), the court reversed, holding that the evidence was sufficient to sustain the defendant’s conviction to failing to register as a sex offender. Following Crockett (summarized immediately above), the court noted that G.S. 14-208.7(a) applies solely to a sex offender’s initial registration whereas G.S. 14-208.9(a) applies to instances in which an individual previously required to register changes his address from the address. Here, the evidence showed that the defendant failed to notify the Sheriff of a change in address after his release from incarceration imposed after his initial registration.

State v. Crockett, 368 N.C. 717 (Mar. 18, 2016)

On discretionary review of a unanimous decision of the Court of Appeals, 238 N.C. App. 96 (2014), the court affirmed the defendant’s convictions, finding the evidence sufficient to prove that he failed to register as a sex offender. The defendant was charged with failing to register as a sex offender in two indictments covering separate offense dates. The court held that G.S. 14-208.9, the “change of address” statute, and not G.S. 14-208.7, the “registration” statute, governs the situation when, as here, a sex offender who has already complied with the initial registration requirements is later incarcerated and then released. The court continued, noting that “the facility in which a registered sex offender is confined after conviction functionally serves as that offender’s address.” Turning to the sufficiency the evidence, the court found that as to the first indictment, the evidence was sufficient for the jury to conclude that defendant had willfully failed to provide written notice that he had changed his address from the Mecklenburg County Jail to the Urban Ministry Center. As to the second indictment, the evidence was sufficient for the jury to find that the defendant had willfully changed his address from Urban Ministries to Rock Hill, South Carolina without providing written notice to the Sheriff’s Department. As to this second charge, the court rejected the defendant’s argument that G.S. 14-208.9(a) applies only to in-state address changes. The court also noted that when a registered offender plans to move out of state, appearing in person at the Sheriff’s Department and providing written notification three days before he intends to leave, as required by G.S. 14-208.9(b) would appear to satisfy the requirement in G.S. 14-208.9(a) that he appear in person and provide written notice not later than three business days after the address change. Having affirmed on these grounds, the court declined to address the Court of Appeals’ alternate basis for affirming the convictions: that the Urban Ministry is not a valid address at which the defendant could register because the defendant could not live there.

State v. Abshire, 363 N.C. 322 (June 18, 2009)

Rejecting an interpretation of the term “address” as meaning where a person resides and receives mail or other communication, the North Carolina Supreme Court held that the term carries the “ordinary meaning of describing or indicating the location where someone lives”; as such, the court concluded, the word indicates a person’s residence, whether permanent or temporary. The court went on to hold that the state presented sufficient evidence to establish that the defendant changed her address, thus triggering the reporting requirement.

Over a dissent, the court held in this failure to register as a sex offender case that there was insufficient evidence that the defendant willfully failed to timely return an address verification form, deciding as a matter of first impression that the federal holiday Columbus Day is not a “business day” for purposes of G.S. 14-208.9A.  G.S. 14-208.9A requires registrants to return verification forms to the sheriff within “three business days after the receipt of the form.”  The defendant received the address verification form on Thursday, October 9, 2014.  The defendant brought the form to the sheriff’s office on Wednesday, October 15, 2014.  The intervening Monday, October 13, 2014 was Columbus Day.  The defendant was arrested for failing to timely return the form while he was at the sheriff’s office.

Noting that some statutory definitions of the term “business day” exclude Columbus Day while others include it, the court found the term as used in G.S. 14-208.9A ambiguous.  The court looked to the legislative history of the statute and the circumstances surrounding its adoption but was unable to discern a clear meaning of the term in that effort.  Operating under the rule of lenity, the court held that “the term ‘business day,’ as used in Chapter 27A, means any calendar day except Saturday, Sunday, or legal holidays declared in [G.S. 103-4].”  Because Columbus Day is among the legal holidays declared in G.S. 103-4, there was insufficient evidence that the defendant violated G.S. 14-208.9A.  A dissenting judge would have held that Columbus Day is a “business day,” in part because the sheriff’s office actually was open for business on that day and in part because G.S. 103-4 lists as “public holidays” various days “which no one would reasonably expect the Sheriff’s Office to be closed for regular business to the public.”  The dissenting judge identified several such days, including Robert E. Lee’s Birthday and Greek Independence Day.

In this sex offender registration case, double jeopardy barred convictions under both G.S. 14-208.11(a)(2) and (a)(7). The defendant was convicted of two separate crimes: one pursuant to G.S. 14-208.11(a)(2) (failure to notify the last registering sheriff of a change in address) and one pursuant to 14-208.11(a)(7) (failure to report in person to the sheriff’s office as required by, here, G.S. 14-208.9(a) (in turn requiring that a person report in person and provide written notice of an address change)). The court noted that it has previously held that the elements of an offense under G.S. 14-208.11(a)(2) and under G.S. 14-208.9(a) are the same: that the defendant is required to register; that the defendant changed his or her address; and that the defendant failed to notify the last registering sheriff of the change. It concluded: “Because in this case North Carolina General Statute § 14-208.11(a)(2) and (a)(7) have the same elements, one of defendant’s convictions must be vacated for violation of double jeopardy.” The court went on to reject the State’s argument that the legislature intended to allow separate punishment under both subsection (a)(2) and (a)(7).

In this sex offender registration case where the defendant was charged with failing to notify of an address change, there was sufficient evidence that the defendant changed his address. After the defendant registered in 2011, he was incarcerated and then released in 2013. The Supreme Court has clarified that while incarcerated, a registrant’s address is that of the facility or institution in which he is confined and that when he is released from incarceration, his address necessarily changes. The court rejected the defendant’s argument that his incarceration for only a month was not long enough to establish a new address at his place of confinement.

(1) The State presented sufficient evidence to support a conviction for failure to register as a sex offender. The court rejected the defendant’s argument that he was not required to register in connection with a 1994 indecent liberties conviction. The court took judicial notice of the fact that the defendant’s prison release date for that conviction was Sept. 24, 1995 but that he was not actually released until Jan. 24, 1999 because he was serving a consecutive term for crime against nature. Viewing the later date as the date of the defendant’s release from prison, the court held that the registration requirements were applicable to him because they took effect in January 1996 and applied to offenders then serving time for a reportable sexual offense. The court further held that because the defendant was a person required to register when the 2008 amendments to the sex offender registration statute took effect, those amendments applied to him as well. (2) Where there was no evidence that the defendant willfully gave an address he knew to be false, the evidence was insufficient to support a conviction for submitting information under false pretenses to the sex offender registry in violation of G.S. 14-208.9A(a)(1). The State’s theory of the case was that the defendant willfully made a false statement to an officer, stating that he continued to reside at his father’s residence. Citing prior case law, the court held that the statute only applies to providing false or misleading information on forms submitted pursuant to the sex offender law. Here, the defendant never filled out any verification form listing the address in question. It ruled: “An executed verification form is required before one can be charged with falsifying or forging the document.”

In this failure to register case based on willful failure to return a verification form as required by G.S. 14-208.9A, the trial court erred by denying the defendant’s motion to dismiss. To prove its case, the State must prove that the defendant actually received the letter containing the verification form. It noted: “actual receipt could have been easily shown by the State if it simply checked the box marked “Restricted Delivery?” and paid the extra fee to restrict delivery of the … letter to the addressee, the sex offender.” The court also found that there was insufficient evidence that the sheriff’s office made a reasonable attempt to verify the defendant’s address, another element of the offense. The evidence indicated that the only attempt the Deputy made to verify that the defendant still resided at his last registered address was to confirm with the local jail that the defendant was not incarcerated. Finally, the court found that State failed to show any evidence that the defendant willfully failed to return the verification form.

In a failing to register case there was sufficient evidence that the defendant changed his address from Burke to Wilkes County. Among other things, a witness testified that the defendant was at his ex-wife Joann’s home in Wilkes County all week, including the evenings. The court concluded: “the State presented substantial evidence that, although defendant may still have had his permanent, established home in Burke County, he had, at a minimum, a temporary home address in Wilkes County.” (quotation omitted). It explained:

[T]he evidence . . . showed that defendant still received mail, maintained a presence, and engaged in some “core necessities of daily living,” at his home in Burke County. However, the evidence also would allow a jury to reasonably conclude that he temporarily resided at Joann’s in Wilkes County. Specifically, [witnesses] testified that defendant was often at Joann’s all week. Furthermore, [a witness] testified that defendant engaged in activities that only someone living at Joann’s would do. Thus . . . the evidence supported a reasonable conclusion that not only did defendant maintain a permanent domicile in Burke County, but he also had a temporary residence or place of abode at Joann’s in Wilkes County. Although defendant may have considered the house in Burke County his “home,” . . . his subjective belief and even the fact that he was “in and out” of the Burke County house does not prevent him from having a second, temporary residence. (citations omitted).

Falsely stating an address on any verification form required by the sex offender registration program supports a conviction for failing to register as a sex offender. The court rejected the defendant’s argument that the only verification forms that count are the initial verification form and those required to be filed every 6 months thereafter, noting that under G.S. 14-208.9A(b) additional verification may be required. (2) The court rejected the defendant’s argument that his false reporting of his address on two separate verification forms constituted a continuing offense and could support only one conviction. The court concluded that the submission of each form was a distinct violation of the statute.

(1) The court rejected the defendant’s argument that G.S. 14-208.11 (2011) (failure to notify of a change in address) is void for vagueness as applied to him. He argued that because he is homeless, a person of ordinary intelligence person could not know what “address” means in his case. The court noted that in State v. Abshire, 363 N.C. 322 (2009), the N.C. Supreme Court clearly and unambiguously defined the term “address” as used in the statute well before the defendant was released from prison. It further noted that in State v. Worley, 198 N.C. App. 329 (2009), it rejected the defendant’s argument that homeless sex offenders have no address for purposes of the registration statutes. It concluded:

Even assuming that the language of the statute is ambiguous, defendant had full notice of what was required of him, given the judicial gloss that the appellate courts have put on it. Certainly after Abshire and Worley, if not before, a person of reasonable intelligence would understand that a sex offender is required to inform the local sheriff’s office of the physical location where he resides within three business days of a change, even if that location changes from one bridge to another, or one couch to another. Although this obligation undoubtedly places a large burden on homeless sex offenders, it is clear that they bear such a burden under [G.S.] 14-208.9 and that under [G.S.] 14-208.11(a)(2) they may be punished for willfully failing to meet the obligation. Moreover, the fact that it may sometimes be difficult to discern when a homeless sex offender changes addresses does not make the statute unconstitutionally vague or relieve him of the obligation to inform the relevant sheriff’s office when he changes addresses.

(Citations omitted) (2) The evidence was sufficient to convict the defendant for failing to notify of a change in address. Conceding that the State presented evidence that he was not residing at his registered address, the defendant argued that the State failed to presented evidence of where he was actually residing. The court rejected this argument, reasoning that the State is not required to prove the defendant’s new address, only that he failed to register a change of address. It stated: “proof that [the] defendant was not living at his registered address is proof that his address had changed.”

(COA11-273) In a case involving a sex offender’s failure to give notice of an address change, the court held that the evidence was sufficient to establish that the defendant changed his address. Among other things, a neighbor at the new address testified that the defendant stayed in an upstairs apartment every day and evening. Although the defendant claimed that he had not moved from his father’s address, his father told an officer that the defendant did not live there any longer.

The trial court erred by denying the defendant’s motion to dismiss the charge of failing to register as a sex offender by failing to verify his address. In order to be convicted for failure to return the verification form, a defendant must actually have received the form. In this case, the evidence was uncontroverted that the defendant never received the form.

The trial court did not err in denying the defendant’s motion to dismiss a charge of failure to notify of a change of address within 10 days where the evidence showed, at a minimum, that the defendant ceased to reside at his last listed reported address on or before August 10th, but did not submit a change of address form until September 16th. The court noted that individuals required to notify the sheriff of a change address must do so, even if the change of address is temporary; it rejected the defendant’s contention that there may be times when a registered sex offender lacks a reportable address, such as when the person has no permanent abode.

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