Appeal by defendant from judgment entered 20 March 2003 by
Judge Dennis J. Winner in Alamance County Superior Court. Heard in
the Court of Appeals 21 September 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Diane G. Miller, for the State.
Don Willey for defendant-appellant.
HUNTER, Judge.
Kenneth Michael Oakley (“defendant”) appeals from a judgment
dated 20 March 2003 entered consistent with a jury verdict finding
him guilty of two counts of sexual activity by a substitute parent.
For the reasons stated within, we find no error. The evidence tends to show that at the time of the occurrence,
defendant was a twenty-three-year-old police officer employed by
the Mebane Police Department and later the Alamance County
Sheriff's Office. Defendant met sixteen-year-old Kevin W. O'Dell
(“O'Dell”) in 2000 while responding to a call at the home of
O'Dell's mother, Janie Rook (“Rook”). Defendant was involved in a
sexual relationship with Rook for approximately one year. During
that time, defendant also spent time with O'Dell, buying him
clothing, taking him on a weekend trip to a North Carolina beach,
and on occasion letting O'Dell stay with him at the home he shared
with another officer while O'Dell was having difficulty with Rook.
During this time, O'Dell was arrested on a number of charges and
was on juvenile, and later adult, probation for breaking and
entering and various drug and alcohol related crimes.
On 1 January 2002, Rook had O'Dell, seventeen-years-old at
that time, arrested for underage drinking and asked family members
not to post bail for him. Defendant posted O'Dell's bond, signed
the release forms as his temporary custodian, and took O'Dell home
to stay with him. Defendant also obtained permission from O'Dell's
parole officer for O'Dell to live with him. During and prior to
the time O'Dell resided with defendant in January of 2002,
defendant provided him food, clothing, and shelter, as well as gave
him gifts. Defendant also had O'Dell tested for drugs. After a
confrontation between O'Dell and defendant, defendant called the
police and had O'Dell arrested for underage drinking on 27 January
2002. Defendant then filed a petition to have O'Dell involuntarilycommitted on 30 January 2002 for substance abuse treatment, again
representing himself as O'Dell's temporary custodian.
O'Dell testified that he engaged in sexual activities with
defendant in exchange for money during and prior to the time he
resided with defendant. Defendant testified that he engaged in
oral and anal sex with O'Dell while he resided with defendant.
Defendant was charged with and convicted of two counts of
sexual activity by a substitute parent. Defendant was given a
suspended sentence of a term of twenty-four to thirty-eight months,
and placed on supervised probation for thirty-six months.
Defendant appeals.
I.
[1] By his first assignment of error, defendant contends the
trial court erred in admitting certain photographs found in
defendant's home, as the evidence was irrelevant to the charge and
improperly prejudiced defendant in placing his sexual orientation
on trial. We disagree.
The State, over defendant's objection, admitted a series of
fifteen photographs that depicted a number of unidentified white
males. Several of the photographs were identified as DMV
photographs which could be downloaded from the Internet, some were
photographs of inmates from a police lineup, and others were
unidentified young, white males. Some of the photographs depicted
males shirtless, some showed males in uniform and others showed
males handcuffed. Defendant contends that admission of these
photographs was irrelevant, immaterial, and grossly prejudicial as
it improperly put defendant's sexual orientation on trial inviolation of the Fifth and Fourteenth Amendments of the United
States Constitution and Article I, Section 19 of the North Carolina
Constitution.
Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable than it would without the evidence.
N.C. Gen. Stat. § 8C-1, Rule 401 (2003). Relevant evidence is
generally admissible except where its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
consideration of undue delay, waste of time, or needless
presentation of cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule
403 (2003). “[E]ven though a trial court's rulings on relevancy
technically are not discretionary and therefore are not reviewed
under the abuse of discretion standard applicable to Rule 403, such
rulings are given great deference on appeal.”
State v. Wallace,
104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991).
In
State v. Creech, the defendant was charged with multiple
counts of indecent liberties with a minor and one count of crimes
against nature.
See Creech, 128 N.C. App. 592, 595, 495 S.E.2d
752, 754,
disc. review denied, 348 N.C. 285, 501 S.E.2d 921 (1998).
The victims in
Creech were adolescent males.
Id. at 593-94, 495
S.E.2d at 753. The State submitted evidence of photographs found
in the defendant's possession of male models and men in brief
clothing.
Id. at 596, 495 S.E.2d at 755. The defendant contended
such admissions were unfairly prejudicial and that he was convicted
because the jury viewed him as a homosexual after seeing thephotographs.
Id. The
Creech Court found no prejudicial error in
the introduction of the photographs, however, as defendant
testified at trial as to his sexual encounters with men.
Id. The
Court also noted in
Creech that other witnesses had referred to the
defendant's sexual orientation before the photographs were entered,
and that the photographs served to corroborate the testimony of
other witnesses.
Id. As a result, the Court found the probative
value of the photographs substantially outweighed the danger of
unfair prejudice to defendant's case.
Id.
As in
Creech, the State here contends that the photographs
were offered to corroborate O'Dell's testimony regarding the sexual
nature of his relationship with defendant. Further, defendant
admitted to engaging in sexual intercourse with O'Dell at trial and
other State witnesses had referred to defendant's sexual
orientation prior to the introduction of the photographs.
Therefore, we find no error in the trial court's ruling that the
probative value of the photographs outweighed the danger of unfair
prejudice to defendant by introduction of such evidence.
Defendant contends that the United States Supreme Court's
recent decision in
Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d
508 (2003), overturning its prior holding in
Bowers v. Hardwick,
478 U.S. 186, 92 L. Ed. 2d 140 (1986), established constitutional
protection for decisions of personal autonomy which extends to
homosexual relationships, and therefore admission of evidence which
showed defendant to be homosexual was grossly prejudicial.
See
Lawrence, 539 U.S. at 578, 156 L. Ed. 2d at 525-26. However, a close review of
Lawrence shows the decision
specifically noted that, unlike more recent same-sex sodomy
statutes, the historical record supports enforcement of sodomy
statutes in situations involving adults and minors.
Laws prohibiting sodomy do not seem to
have been enforced against consenting adults
acting in private. A substantial number of
sodomy prosecutions and convictions for which
there are surviving records were for predatory
acts against those who could not or did not
consent, as in the case of a minor or the
victim of an assault. As to these, one
purpose for the prohibitions was to ensure
there would be no lack of coverage if a
predator committed a sexual assault that did
not constitute rape as defined by the criminal
law. Thus the model sodomy indictments
presented in a 19th-century treatise addressed
the predatory acts of an adult man against a
minor girl or minor boy.
Lawrence, 539 U.S. at 569, 156 L. Ed. 2d at 519-20 (citation
omitted). The Court further noted the narrow scope of its ruling
by stating that, “[t]he present case does not involve minors. It
does not involve persons who might be injured or coerced or who are
situated in relationships where consent might not easily be
refused.”
Id. at 578, 156 L. Ed. 2d at 525. Thus, Lawrence's
recognition of autonomy and personal choice within consensual adult
relationships does not offer constitutional protection to evidence
presented in a charge of criminally prohibited activity with
minors, as is the case
sub judice.
See State v. Clark, 161 N.C.
App. 316, 321, 588 S.E.2d 66, 68-69 (2003). Therefore, we find no
prejudicial error in the trial court's admission of the
photographs.
II.
[2] Defendant next contends the trial court erred in denying
defendant's motions to dismiss and to set aside the verdict for
insufficient evidence that defendant has assumed the position of a
parent in the victim's home. We disagree.
When reviewing challenges to the sufficiency of the evidence
in criminal trials, the evidence must be reviewed in the light most
favorable to the State.
See State v. Benson, 331 N.C. 537, 544,
417 S.E.2d 756, 761 (1992). The State receives the benefit of all
reasonable inferences, and any contradictions or discrepancies are
for the jury to resolve.
Id.
Here, defendant was charged with the crime of sexual activity
by a substitute parent. N.C. Gen. Stat. § 14-27.7(a) (2003). This
crime requires a finding that the defendant had (1) assumed the
position of a parent in the home, (2) of a minor victim, and (3)
engaged in a sexual act with the victim residing in the home.
Id.
In
State v. Bailey, this Court recently held that in order to
find a parental relationship for the purposes of § 14-27.7(a),
“evidence of the relationship between the defendant and
child-victim must provide support for the conclusion that the
defendant functioned in a parental role. Such a parental role will
generally include evidence of emotional trust, disciplinary
authority, and supervisory responsibility.”
Bailey, 163 N.C. App.
84, 93, 592 S.E.2d 738, 744 (2004).
Here, evidence presented at trial showed that defendant, a law
enforcement officer, was a friend of the family and initially
involved in a sexual relationship with O'Dell's mother. Defendant
provided clothing for O'Dell, took him to court dates, and allowedO'Dell to stay with him on occasion. Following defendant's
bailment of O'Dell in 2002, defendant represented himself as
O'Dell's temporary custodian and obtained permission from O'Dell's
parole officer for O'Dell to live with him. Defendant paid for all
of O'Dell's support during this time, including food, shelter,
gifts and spending money. Further, defendant had O'Dell tested for
drugs and alcohol, had defendant arrested for underage drinking,
and again represented himself as O'Dell's temporary custodian in
seeking an evaluation of him for involuntary civil commitment for
substance abuse. Unlike in
Bailey, where the evidence tended to
show that the defendant was merely a babysitter,
163 N.C. App. at
94, 592 S.E.2d at 745, the evidence in this case, when viewed in
the light most favorable to the State, provides evidence of
emotional trust, disciplinary authority, and supervisory
responsibility by defendant towards O'Dell.
Defendant does not dispute the other elements of the offense,
namely that O'Dell, seventeen-years-old, was a minor when the
offenses occurred and that defendant, twenty-three years old, was
an adult. Further, defendant himself testified as to the
occurrence of sexual acts with O'Dell. Therefore, as sufficient
evidence of all the elements was presented to reach the jury as to
the charge of sexual offense of a person in a parental role, the
trial court did not err in its denial of defendant's motions to
dismiss and to set aside the verdict for insufficient evidence.
III.
Defendant raises three additional assignments of error in his
brief in a section entitled Preservation Claims, but cites noauthority in support of these claims. “'Assignments of error not
set out in the appellant's brief, or in support of which no reason
or argument is stated or authority cited, will be taken as
abandoned.'”
State v. Lloyd, 354 N.C. 76, 87, 552 S.E.2d 596, 607
(2001) (quoting N.C.R. App. P. 28(b)(6)). Defendant's additional
assignments of error are therefore deemed abandoned.
For the above reasons, we find the trial court did not err in
admitting the challenged State's evidence and properly concluded
there was sufficient evidence to deny defendant's motion to
dismiss.
No error.
Judges WYNN and THORNBURG concur.
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