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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-156


NORTH CAROLINA COURT OF APPEALS

Filed: 6 November 2007

STATE OF NORTH CAROLINA

v .                         Cumberland County
                            Nos. 05 CRS 55819-22
JUAN ANTONIO TORRES

    Appeal by defendant from judgments entered 2 November 2006 by Judge Robert F. Floyd, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 18 October 2007.

    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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