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State v. Cholon

Court of Appeals of North Carolina

February 7, 2017

STATE OF NORTH CAROLINA,
v.
DEREK JACK CHOLON, Defendant.

          Heard in the Court of Appeals 24 May 2016.

         Appeal 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.

          INMAN, Judge.

         Defense 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.

         Derek 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.

         After careful review, we hold that Defendant has failed to demonstrate reversible error in his direct appeal.

         I. Factual And Procedural History

         The State's evidence tended to show the following:

         On 6 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.

         Defendant 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.

         Defendant 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:

         We 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.

         On 8 April 2014, Defendant was indicted on one count each of first degree statutory sexual offense, crime against nature, ...


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