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., 09/22/2021
E.g., 09/22/2021

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.”

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