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. 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.

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