State v. Ligon, 206 N.C. App. 458 (Aug. 17, 2010)

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.