STATE OF NORTH CAROLINA
v
.
Cumberland County
Nos. 05 CRS 55819-22
JUAN ANTONIO TORRES
Attorney General Roy A. Cooper, III, by Kelly L. Sandling, for
the State.
Thomas R. Sallenger, for defendant-appellant.
JACKSON, Judge.
Juan Antonio Torres (“defendant”) was convicted on 2 November
2006 of two counts each of (1) first degree statutory sexual
offense, (2) taking indecent liberties with children, (3) crime
against nature, and (4) sexual activity by a substitute parent.
All but the sexual activity by a substitute parent charges were
consolidated for sentencing purposes, and defendant was sentenced
in the presumptive range to a term of 240 to 297 months
incarceration in the custody of the North Carolina Department of
Correction. The remaining charges were consolidated for sentencing
purposes, and defendant was sentenced in the presumptive range to
a term of 25 to 39 months incarceration, to be served at theexpiration of his sentence on the other charges. Defendant appeals
his convictions. For the following reasons, we hold no error.
Defendant, a sergeant in the Army, lived in a “blue house”
near Fort Bragg from mid-February until mid-October 2004 when he
received orders to go to Korea. During that time, defendant lived
with the child victim in this case, her mother, and two sons
defendant shared with the mother. Defendant and the victim's
mother had been in a relationship for approximately one and one-
half years. While living in the “blue house,” defendant instructed
the victim to put his penis in her mouth on two occasions, which
she did.
The victim was placed with a foster family for reasons
unrelated to the case sub judice. She ultimately revealed the
incidents to her foster parents, who reported the incidents to the
Cumberland County Department of Social Services (“DSS”). DSS in
turn contacted the Cumberland County Sheriff's Office, and the case
was assigned to Detective Sergeant Gregory Mills (“Detective
Mills”) of the Special Victims Unit.
During Detective Mills' investigation, he contacted the
Criminal Investigation Division (“CID”) at Fort Bragg and requested
their assistance. As defendant had been transferred to Korea, Fort
Bragg CID coordinated with Special Agent John Lett (“Special Agent
Lett”) of the CID office at Camp Casey, Korea. On 11 March 2005,
Special Agent Lett interviewed defendant, who, after being informed
of his rights, initially denied the allegations. After taking a
short break, however, defendant admitted to having placed his penisin the victim's mouth on two occasions in the fall of 2003. He
also confessed that these events occurred in the “blue house.” He
confessed that he had provided a false statement initially because
he was scared; he knew it was wrong to give a false statement; and
he wished he had done the right thing in the first place.
On 3 June 2005, Detective Mills interviewed defendant, at the
same time he served defendant with arrest warrants. After being
informed of his rights, defendant confessed to the allegations
presented to him. Defendant stated that he “wanted to do his
time,” put things behind him, and get on with his life.
On 1 August 2005, a Cumberland County grand jury returned
indictments of two counts each of (1) first degree statutory sexual
offense, (2) taking indecent liberties with children, (3) crime
against nature, and (4) sexual activity by a substitute parent.
Defendant's trial was held between 30 October and 2 November 2006.
At the close of the State's evidence, defendant made a motion to
dismiss all charges which was denied. Defendant did not present
any evidence. The jury convicted defendant on all counts on
2 November 2006. He was sentenced the same day.
Defendant set forth multiple assignments of error, but
essentially makes a single argument. He appeals the trial court's
denial of his motion to dismiss all charges at the close of the
State's evidence. He argues that the State failed to present
substantial evidence of each element of the crimes charged. We
disagree.
When reviewing the denial of a motion to dismiss criminal
charges this Court must determine whether the evidence, when taken
in the light most favorable to the State, would permit a reasonable
juror to find defendant guilty of each essential element of the
offense beyond a reasonable doubt. See State v. Etheridge, 319
N.C. 34, 47, 352 S.E.2d 673, 681 (1987). “The [S]tate is entitled
to all reasonable inferences that may be drawn from the evidence.
Contradictions in the evidence are resolved favorably to the
[S]tate.” State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399
(1986) (citations omitted). In order to survive a defendant's
motion to dismiss, the State must present substantial evidence of
each essential element of the offense charged, and of defendant's
identity as the perpetrator. State v. Barden, 356 N.C. 316, 351,
572 S.E.2d 108, 131 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed.
2d 1074 (2003) (citation omitted). Substantial evidence is that
which “a reasonable mind might accept as adequate to support a
conclusion.” Id. If substantial evidence exists, “the case is for
the jury and the motion to dismiss should be denied.” State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
Defendant's first argument, with respect to the charges of
first degree sexual offense, is that the State failed to present
substantial evidence that he engaged in the alleged criminal
conduct on the dates charged in the indictments. We disagree.
Pursuant to North Carolina General Statutes, section 14-
27.4(a)(1), the State must present substantial evidence that
defendant (1) engaged in a sexual act, (2) with a child under theage of thirteen years, (3) when he was at least twelve years old,
and (4) was at least four years older than the victim. See N.C.
Gen. Stat. § 14-27.4(a)(1) (2005). Fellatio is among those acts
prohibited by the statute. State v. DeLeonardo, 315 N.C. 762, 764,
340 S.E.2d 350, 353 (1986). Fellatio is defined as “any touching
of the male sexual organ by the lips, tongue, or mouth of another
person.” State v. Johnson, 105 N.C. App. 390, 393, 413 S.E.2d 562,
564, disc. rev. denied 332 N.C. 348, 421 S.E.2d 158 (1992)
(citations omitted).
The State presented the following evidence which must be
viewed in the light most favorable to the State. Defendant
confessed that he placed his penis in the child's mouth two times.
The child testified that defendant made her suck his “butt tail” _
the term she used for penis _ twice. She also testified that this
occurred when she and her family lived with defendant in the “blue
house.” Defendant's statement was that he had lived with the
victim and her family in a blue house from February to September
2004, with a break for Army training. The lease for the “blue
house” was in defendant's name. Therefore, the State's evidence is
that defendant engaged in fellatio, a sexual act, on two occasions
between mid-February and mid-September 2004. Defendant argues that
he confessed to having engaged in this conduct in 2003, not 2004.
However, facts must be viewed in the State's favor. The victim was
less than seven years old at the time these acts occurred; she was
born in January 1999. At the relevant times in 2004, she would
have been five years old. Defendant was at least twelve years oldat the time these acts occurred. When defendant signed the “blue
house” lease, he was twenty-three years old. At all relevant
times, he was more than twelve years old. Defendant was more than
four years older than the victim when these acts occurred, i.e., he
was eighteen years her senior.
The State presented substantial evidence of each element of
first degree statutory sexual offense. Therefore, the trial
court's denial of defendant's motion to dismiss these charges was
proper.
Next, defendant argues error in his convictions for taking
indecent liberties with children. He contends the State failed to
present substantial evidence that he committed some overt act for
purposes of arousing and gratifying sexual desire on the dates
charged in the indictments. We disagree.
For a defendant to be convicted of taking indecent liberties
with children, the State must prove:
(1) the defendant was at least 16 years of
age[;] (2) he was five years older than his
victim[;] (3) he willfully took or attempted
to take an indecent liberty with the victim[;]
(4) the victim was under 16 years of age at
the time the alleged act or attempted act
occurred[;] and (5) the action by the
defendant was for the purpose of arousing or
gratifying sexual desire.
State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987)
(citation omitted); N.C. Gen. Stat. § 14-202.1 (2005).
We already have established that there was sufficient evidence
of the dates of the offenses of which defendant was convicted.
Further, at those times, defendant was more than sixteen years old;he was more than five years older than the victim; and the victim
was under sixteen years old.
“A defendant's purpose, being a mental attitude, is seldom
provable by direct evidence and must ordinarily be proven by
inference.” State v. Campbell, 51 N.C. App. 418, 421, 276 S.E.2d
726, 729 (1981) (citation omitted). Such inference may be drawn
from the defendant's actions. Rhodes, 321 N.C. at 105, 361 S.E.2d
at 580.
Defendant confessed that (1) he placed his penis in the
victim's mouth; (2) each incident lasted a couple of minutes; and
(3) although he never ejaculated in her mouth, there may have been
some pre-ejaculate. From this evidence, the jury could have
inferred that defendant willfully took such indecent liberties for
the purpose of arousing or gratifying sexual desire.
Because the State presented substantial evidence of each
element of the crime, the trial court properly denied defendant's
motion to dismiss the charges of taking indecent liberties with
children.
Defendant next argues that the State failed to present
substantial evidence that he had engaged in crime against nature on
the dates alleged in the indictments. We disagree.
Pursuant to North Carolina General Statutes, section 14-177,
“[i]f any person shall commit the crime against nature, with
mankind or beast, he shall be punished as a Class I felon.” N.C.
Gen. Stat. § 14-177 (2005). Fellatio has been recognized by our
courts as a “crime against nature” since 1914. See State v.Fenner, 166 N.C. 247, 249, 80 S.E. 970, 971 (1914) (“We are [of
the] opinion that under our statute having carnal knowledge of
another by inserting the private parts in the mouth is
indictable.”). Although the United States Supreme Court decision
in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003),
resulted in this Court's holding that section 14-177 is
unconstitutional as applied to private consensual activity between
adults, In re R.L.C., 179 N.C. App. 311, 314, 635 S.E.2d 1, 3
(2006), aff'd, 361 N.C. 287, 643 S.E.2d 920 (2007), no similar bar
exists to prevent its application to activity between an adult and
a minor. See State v. Browning, 177 N.C. App. 487, 492, 629 S.E.2d
299, 303, disc. rev. denied, 360 N.C. 578, 635 S.E.2d 902 (2006)
(application of the statute is permissible when the conduct
involves minors).
The State presented substantial evidence that defendant
engaged in fellatio with the minor victim in 2004. Therefore, the
trial court was correct in denying defendant's motion to dismiss
the charges of crime against nature.
Finally, defendant argues, with regard to the charges of
sexual activity by a substitute parent, that the State failed to
present substantial evidence that defendant had assumed the
position of a parent in the home. We disagree.
A defendant may be convicted pursuant to North Carolina
General Statutes, section 14-27.7(a) if the State proves that (1)
he engaged in a sexual act; (2) in the home of a minor victim; and(3) he has assumed the position of a parent in the home. See N.C.
Gen. Stat. § 14-27.7(a) (2005).
As noted previously, there was sufficient evidence that
defendant engaged in a sexual act with the minor child. Although
there was some difference between the child's testimony and
defendant's confession, both agreed that the acts occurred in the
“blue house.” Defendant named the victim's mother as his “fiancée”
on the rental application for the “blue house.” The rental
application also listed the victim's name and a six-month old boy
with defendant's last name, as well as “unborn.” Thus, there was
sufficient evidence that this was the victim's home as well.
“[T]o convict a defendant of violating G.S. § 14-27.7(a), the
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.” State v. Bailey, 163 N.C. App. 84,
93, 592 S.E.2d 738, 744, disc. rev. denied, 358 N.C. 733, 601
S.E.2d 861 (2004). Defendant stated that he disciplined the
victim. He stated that the victim called him “Pappy” or “Daddy
Tony.” He bathed the victim while her mother was around. The
sexual activity at issue here occurred while the child's mother was
not home. Defendant had been in a relationship with the victim's
mother for one and one-half years, and fathered two of her
children, the victim's half-brothers. Defendant listed the victim,her mother, and his other children on the rental application for
the “blue house.”
The State, therefore, presented substantial evidence that
defendant assumed a parental role in the home, thus satisfying the
final element of the crime. Thus, the trial court was correct when
it denied defendant's motion to dismiss the charges of sexual
activity by a substitute parent.
As the State presented sufficient evidence from which a jury
could find defendant guilty beyond a reasonable doubt of each crime
charged, the trial court did not err in denying defendant's motion
to dismiss the charges against him.
No error.
Judges TYSON and STROUD concur.
Report per Rule 30(e).
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