in the Court of Appeals 24 May 2016.
by Defendant from judgment entered 9 July 2015 by Judge Jack
W. Jenkins in Onslow County, No. 051604 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Alexandra Gruber, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender John F. Carella, for Defendant-Appellant.
counsel's closing arguments, which admitted some elements
of the charged offenses, while maintaining Defendant's
innocence, did not constitute per se ineffective
assistance of counsel.
Jack Cholon ("Defendant") appeals the judgment
entered after a jury found him guilty of statutory sexual
offense and taking indecent liberties with a child. On
appeal, Defendant contends that he received ineffective
assistance of counsel.
careful review, we hold that Defendant has failed to
demonstrate reversible error in his direct appeal.
Factual And Procedural History
State's evidence tended to show the following:
March 2013, Defendant met M.B. through Jack'd, described
as "an application where you can meet gay men and have
sex." M.B. was 15 years old at the time; however, he
indicated on his online profile that he was 18 years old, the
minimum age requirement for Jack'd. M.B. received a
signal on Jack'd indicating that Defendant wanted to
speak with M.B. Defendant and M.B. exchanged messages and
nude photographs. They agreed to meet later that night in
Jacksonville, North Carolina, at a stop sign at the end of
the street where M.B. lived.
arrived at the stop sign at approximately 10:30 pm. M.B. got
into the front passenger seat of Defendant's car and
instructed him to drive to a dirt road in a wooded area
located in the back of the neighborhood. Once there,
Defendant performed oral sex on M.B. and M.B.
"fingered" Defendant. They remained in
Defendant's car for twenty to thirty minutes until a
Jacksonville Police Department patrol car arrived, turned on
bright "takedown lights, " and Officer Taylor
Wright approached Defendant's car. Officer Wright, who
had been patrolling the neighborhood following a series of
break-ins, had driven down the dirt road in response to a
suspicious vehicle report.
Defendant and M.B. each initially told Officer Wright that
they were just sitting and talking. Officer Wright requested
that her backup, Officer David Livingston, question M.B.
alone while she spoke with Defendant. M.B. initially told
Officer Livingston that he was 18 years old and provided a
false address. However, after Officer Livingston expressed
doubt as to M.B.'s truthfulness, M.B. admitted that he
was 15 years old and provided his correct address.
told Officer Wright that "he had performed oral sex on
[M.B.], and that they were kissing." Defendant said he
believed that M.B. was 18 years old. Officer Wright confirmed
Defendant's birth date as 16 December 1971. After
determining that Defendant had outstanding warrants, Officer
Wright arrested Defendant and transported him to the
Jacksonville Police Department. At the station, Defendant
made a written statement, containing in pertinent part:
proceeded to a secluded area and sat in the car and talked.
After about ten minutes, the police arrived. Before the
police arrived, I gave [M.B.] oral and we kissed. I advised
the police that I have screen shots of his two profiles on my
phone, and that I asked [M.B.] his age and he said he was 18.
April 2014, Defendant was indicted on one count each of first
degree statutory sexual offense, crime against nature, ...