Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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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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(1) On discretionary review of a unanimous, unpublished decision of the Court of Appeals in this sexual exploitation of a minor case, the court held that although statements in the prosecutor’s final jury argument were improper, they were not prejudicial. The defendant claimed that the images at issue depicting his penis near the child’s mouth did not show actual conduct and instead had been digitally manipulated to depict the conduct. In closing argument to the jury, the prosecutor argued that the crime of sexual exploitation of a minor could occur if the image was altered or manipulated to show a person engaged in a sexual act with a child. The prosecutor argued that the child does not have to actually be involved in the sexual act itself. The defendant was convicted and he appealed. The court held that the prosecutor’s argument was improper. According to the plain language of the statute, the minor is required to have engaged in sexual activity. When the minor depicted in an image appears to have been shown as engaged in sexual activity as a result of digital manipulation, the defendant has not committed the offense of first-degree sexual exploitation of a minor. Thus, the prosecutor’s argument misstated the applicable law. However, the court went on to hold that although the trial court erred by sustaining the defendant’s objection to the challenge argument, the error did not justify a new trial. It reasoned that when, as here, a misstatement of the law during jury argument is cured by correct jury instructions, no prejudice occurs. Here, the trial court’s instructions to the jury explicitly stated that to find the defendant guilty the jury had to find that the defendant used, induced, coerced, encouraged or facilitated the child victim’s involvement in sexual activity.
(2) In this first-degree sexual exploitation of a minor case, the trial court did not err by denying the defendant’s request that the jury be instructed that the “oral intercourse” element of the offense requires penetration. The court determined that whether the term “oral intercourse” as used in the statute proscribing this crime requires penetration presents an issue of first impression. The court concluded that the General Assembly intended the relevant statutory language to be construed broadly to provide minors with the maximum reasonably available protection from sexual exploitation. The court went on to hold that the term “oral intercourse” was intended as a gender-neutral reference to cunnilingus and fellatio, neither of which require penetration. Thus, the trial court did not err by refusing to instruct the jury in accordance with the defendant’s request.
In this New Hanover county case, defendant appealed his convictions for two counts of first-degree sexual exploitation of a minor, arguing error in (1) denying his motion to dismiss for insufficient evidence, (2) failing to instruct the jury on second-degree exploitation of a minor as a lesser-included offense, (3) allowing a detective to provide testimony regarding the elements of the charged offense, and (4) mistakenly identifying the charge as “sexual assault” one time during the jury instruction. The Court of Appeals found no error.
In 2018, defendant and a group of friends attended a Halloween party with the plan to find a girl and have sex with her while filming it. Several members of the group made recordings of defendant and others having sex with a minor girl from the party, and these videos were discovered by law enforcement during an unrelated traffic stop. Defendant filed a motion to dismiss the charges, but the trial court denied the motion, and defendant was subsequently convicted of both counts.
For (1), defendant argued that there was insufficient evidence that he engaged in the sex with a minor for the purpose of producing material showing their sexual activity, an essential element of the charges. The Court of Appeals explained that defendant was guilty of the offense because he acted in concert with others. Even if defendant was not the principal offender, the court concluded that “substantial evidence demonstrates [defendant] acted in concert with his friends by engaging in the sexual activity which they recorded with the knowledge they were recording it.” Slip Op. at 9.
Moving to (2), the court looked to the statutes creating the relevant offenses, noting that under G.S. 14-190.16(a)(1) “[t]he focus of first-degree sexual exploitation is the direct mistreatment of the minor or the production of material for sale or profit.” Id. at 13. This contrasted with G.S. 14-190.17(a)(1), where second-degree sexual exploitation criminalized the actions of those “involved in the production or after-the-fact distribution of such material,” without the requirement of producing material for sale or gain. Id. The court also pointed to State v. Fletcher, 370 N.C. 313 (2017), where the Supreme Court highlighted that the second-degree sexual exploitation did not involve directly facilitating the involvement of a minor victim. This led the court to conclude that second-degree exploitation of a minor was not a lesser-included offense.
In (3), defendant argued that the officer’s testimony instructed the jury that merely being filmed having sex constituted a violation of G.S. 14-190.16(a)(1), and this testimony confused the jury as to the statute’s requirement that defendant must have intent to produce material. The court disagreed, pointing out that the testimony was during cross-examination related to the questioning of one of the friends who attended the party, and the officer “simply answered why he did not feel compelled to question [one of the friends] regarding the filming of the sexual activity, and he gave a logical, albeit legally incorrect, response.” Id. at 16. The court determined this response made sense in context, and was not improperly instructing the jury as to the elements of the offense.
Arriving at (4), the court explained that the trial court’s mistaken statement that the offense was “sexual assault” only occurred once, during the instruction related to acting in concert. This was inadvertent, and the trial court provided the correct instruction on the elements of first-degree exploitation of a minor, as well as the correct charge when providing a second instruction on acting in concert where the trial court did not make the mistake. As a result, the court found no danger that the jury was confused as to the charge.
The evidence was sufficient to support convictions for first-and second-degree sexual exploitation of a minor. On appeal the defendant argued that a key photograph introduced at trial did not depict the victim engaged in “sexual activity.” The definition of “sexual activity” for purposes of both offenses includes “[t]he lascivious exhibition of the genitals or pubic area.” This prong of the definition of “sexual activity” was the theory on which the State proceeded. The courts have defined the term “lascivious” as “tending to arouse sexual desire.” A reasonable jury could have found that the photograph meets the definition of “lascivious.” The focal point of the picture is the victim’s naked body. She is standing in her father’s bedroom, a setting generally associated with sexual activity, naked except for her socks. The photograph is clearly intended to elicit a sexual response based on the context in which it was taken, which included the defendant’s repeated attempts to touch the victim sexually. The court went on to reject the defendant’s argument that the photograph does not actually contain an exhibition of the victim’s genitals or pubic area. It noted that her fingers are spread far enough apart such that her pubic area is at least partially visible. Viewing the evidence in the light most favorable to the State, reasonable jurors could have determined that the photograph depicted the victim’s pubic area.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of disseminating obscene material to a minor. On appeal the defendant argued that there was insufficient evidence that the material was obscene. At trial the victim testified that the defendant showed her movies involving “a guy and a girl” having sex naked. The State introduced a photograph of three pornographic DVDs found in a search of the premises and the victim’s mother testified that the defendant “had so many” pornographic DVDs. According to the victim’s mother, when the allegations came to light, the defendant disposed of some of his pornography collection and put the rest in a shed. The victim’s mother later found that material and gave it to detectives. At trial various titles from the defendant’s pornography collection were read to the jury. This evidence was sufficient to allow a reasonable jury to infer that the material the defendant showed to the victim was of the same nature of that contained in the defendant’s pornography collection and therefore was obscene material under contemporary community standards.
(2) The trial court’s instructions with respect to multiple counts of indecent liberties with a child, first-degree rape of a child, and sex offense in a parental role did not deprive the defendant of his constitutional right to a unanimous jury verdict. The trial court provided a single instruction for each offense, without describing the details of the conduct underlying each charge. It did however instruct the jury that it must consider each count individually and the verdict sheets identified each count by victim and included a brief description of the particular conduct alleged by reference to the location where it occurred. Additionally jurors were instructed that they all must agree to the verdict, that they could not reach a verdict by majority vote, and that they should indicate on the verdict forms when they agreed upon unanimous verdicts as to each charge. Applying the test from State v. Lawrence, 360 N.C. 368 (2006), the court rejected the defendant’s argument that the jury instructions deprived him of his right to a unanimous jury verdict. The court went on to note that “the instant case is not one in which the risk of a non-unanimous verdict would have arisen by virtue of the trial court’s instructions.” The crimes at issue do not list as elements discrete criminal activities in the disjunctive. Instead, the indecent liberties statute simply forbids any immoral, improper indecent liberties with a child under 13 if taken for the purpose of arousing or gratifying sexual desire. The particular act found to be performed is immaterial to the unanimity inquiry. Thus, even if some jurors were to find that the defendant engaged in one kind of sexual misconduct while others found that he engaged in another, the jury as a whole would still have unanimously found the required sexual misconduct. Here, the defendant was charged with five counts of indecent liberties against the victim. The victim testified to at least five incidents that would have constituted indecent liberties; in fact she testified to 7 such incidents. Similarly, the jury convicted the defendant of four counts of statutory rape and the victim testified to at least four specific incidents that constituted statutory rape and occurred in each of the four locations indicated on the verdict sheet. Therefore there was no danger that the rape verdicts were not unanimous.
(3) The trial court did not err by declining to reopen the case after the defendant reconsidered his decision not to testify. After the close of the State’s evidence, the trial court addressed the defendant regarding his decision whether or not to testify. The defendant informed the trial court that he would not testify. The defense did not present any evidence and rested, and the jury was excused. After the charge conference defense counsel informed the trial court that the defendant had reconsidered his decision and now wished to testify. The trial court declined to reopen the case and bring the jury back in order to allow the defendant to testify. The court found no abuse of discretion in the trial court’s decision to decline to reopen the case to allow the defendant to testify.
In this second-degree sexual exploitation of a minor case, there was sufficient evidence with respect to the knowledge element of the crime. The court disagreed with the defendant’s argument that there was insufficient evidence tending to show that he was aware of the contents of the pornographic files found on his computer. Among other things, the titles of the files clearly indicated that they contained pornographic images of children.
(1) Deciding an issue of first impression the court held that the act of downloading an image from the Internet constitutes a duplication for purposes of second-degree sexual exploitation of a minor under G.S. 14-190.17. (2) The court rejected the defendant’s argument that in third-degree sexual exploitation of a minor cases, the General Assembly did not intend to punish criminal defendants for both receiving and possessing the same images.
The evidence was insufficient to sustain a conviction for first-degree sexual exploitation of a minor. The State’s evidence consisted of photographs of the five-year-old victim but did not depict any sexual activity. The court rejected the State’s arguments that a picture depicting the child pulling up the leg of her shorts while her fingers were in her pubic area depicted masturbation; the court concluded that the photograph merely showed her hand in proximity to her crotch. It also rejected the State’s argument that this picture, along with other evidence supported an inference that the defendant coerced or encouraged the child to touch herself for the purpose of producing a photograph depicting masturbation, concluding that no statutorily prohibited sexual activity took place. Finally, it rejected the State’s argument that a photograph of the defendant pulling aside the child’s shorts depicted prohibited touching constituting sexual activity on grounds that the picture depicted the defendant touching the child’s shorts not her body.
No double jeopardy violation when the defendant was convicted and punished for indecent liberties and using a minor in obscenity based on the same photograph depicting the child and defendant. Each offense has at least one element that is not included in the other offense.
Double jeopardy did not bar conviction and punishment for both second-degree and third-degree sexual exploitation offenses where the third-degree charges were based on the defendant’s possession of the images of minors, and the second-degree charges were based on the defendant’s receipt of those images.