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State v. Fletcher

Supreme Court of North Carolina

December 8, 2017

STATE OF NORTH CAROLINA
v.
HAROLD LAMONT FLETCHER

          Heard in the Supreme Court on 13 February 2017.

         On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, __ N.C.App. __, 782 S.E.2d 926 (2016), finding no error at trial after appeal from judgments entered on 23 May 2014 by Judge Phyllis M. Gorham in Superior Court, New Hanover County.

          Joshua H. Stein, Attorney General, by Laura E. Crumpler, Special Deputy Attorney General, for the State.

          Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate Defender, for defendant-appellant.

          ERVIN, Justice.

         The issues before us in this case include whether the trial court abused its discretion by overruling defendant's objection to alleged misstatements of law contained in the prosecutor's final argument to the jury and whether the trial court erroneously denied defendant's request that the jury be instructed that the "oral intercourse" element of first-degree sexual exploitation of a minor involves "penetration, however slight." We hold that the challenged prosecutorial argument, while erroneous, was not prejudicial and that the trial court did not err by refusing to deliver defendant's requested "oral intercourse" instruction. As a result, we modify and affirm the Court of Appeals' decision.

         On 26 May 2002, defendant Harold Lamont Fletcher married "Theresa, " who had two young children from a previous marriage, including "Diane."[1] Diane referred to defendant, who had become involved in Diane's life when she was one year old, as "Dad." Theresa had known since the beginning of the couple's marriage that defendant had a pornography-related addiction and eventually insisted that defendant receive counseling for this problem. As a result, both defendant and Theresa underwent counseling that was intended to address defendant's pornography-related addiction.

         During her third or fourth grade year, Diane noticed that defendant had begun to enter her bedroom after she had gone to bed. On one occasion, Diane found defendant standing over her with his hand on her chest. On another occasion, defendant told Diane that "he was picking a piece of cotton or lint out of [her] mouth from [her] blanket" when she confronted him about being in her room at night. In early March 2012, when she was fifteen years old, Diane saw a red light outside of her bedroom window. A few weeks later, on 12 March 2012, Diane saw a camera outside the same window as she dressed. Defendant was outside the family home on both occasions.

         In early December 2012, after Diane told Theresa that she believed that defendant was entering her bedroom and "touching her chest, " Theresa took Diane to speak with the counselor who had assisted defendant and Theresa with defendant's addiction to pornography, given that the "counselor was aware of [defendant's] habits." After consulting with the counselor, Theresa contacted the New Hanover County Department of Social Services.

         Subsequently, the State Bureau of Investigation initiated an investigation into defendant's activities. During a search of the family home, investigating officers seized multiple videos and photographs of Diane from files stored on defendant's computer, including several images depicting Diane in various states of undress and four images depicting a hand holding a penis against or near Diane's mouth while she slept. According to Theresa, the hand and the penis depicted in the second set of images belonged to defendant.

         Although defendant admitted that he had recorded images of Diane "in the bathroom getting ready to take a shower, dressing, undressing, " and "asleep in her bed" for purposes of "sexual gratification, " he denied having ever touched her in an inappropriate manner. At trial, defendant admitted to having committed secret peeping and having taken indecent liberties with a child. However, defendant denied his guilt of statutory sex offense and first-degree sexual exploitation of a minor on the grounds that the images depicting his penis near Diane's mouth did not show actual conduct and had, instead, been digitally manipulated to produce that appearance. Although Lars Daniel, an expert in digital imaging manipulation, testified that defendant "display[ed] an advanced level of ability [with] Photoshop" and that it was "highly likely" that at least one of the images depicting a penis near Diane's mouth had been digitally manipulated, he could not formulate an opinion concerning the extent, if any, to which any of the other images depicting defendant's penis against or near Diane mouth had been digitally altered.

         On 18 March 2013, the New Hanover County grand jury returned bills of indictment charging defendant with one count of first-degree sexual exploitation of a minor; statutory sex offense with a fifteen year-old; eighteen counts of secret peeping; and six counts of taking indecent liberties with a child, with these offenses allegedly having occurred between 24 December 2009 and 3 December 2012. The charges against defendant came on for trial before the trial court and a jury at the 19 May 2014 criminal session of the Superior Court, New Hanover County.

         During the jury instruction conference, the trial court rejected defendant's request that the trial court instruct the jury that the "oral intercourse" necessary for a finding of guilt of first-degree sexual exploitation of a minor "requires something more than a mere touching" and could require proof of "penetration, however slight." After the State asserted that proof of penetration was not required to establish "oral intercourse" and that "oral intercourse" and "fellatio" were interchangeable terms, the trial court refused to instruct the jury in accordance with defendant's request and permitted the parties to advance their competing definitions of "oral intercourse" before the jury during their closing arguments.

         Once defendant had asserted in his closing argument that the images depicting his penis on or near Diane's mouth had been digitally altered and that these images, even in their unaltered state, did not depict his penis in physical contact with Diane's mouth, the trial court allowed the prosecutor to argue, over defendant's objection, that:

The other charge is sexual exploitation of a minor. That's a very fancy way for saying manufacturing or producing child pornography. You have to know the content of the material, using a minor for the purposes of producing material that contains a visual representation depicting sexual activity. Does not matter if the image was altered. If I take a picture of a child from the newspaper at a tennis match and I go back to my house and I take a picture of myself unclothed and I am able to manipulate those photos to show that I am engaged in a sexual act with that child, that's manufacturing child pornography. The child does never have to actually be involved in the sexual act itself.

         Although the trial court did instruct the jury that, in order to find defendant guilty of first-degree sexual exploitation of a minor, it had to find beyond a reasonable doubt that "defendant used, induced, coerced, encouraged or facilitated a [minor] to engage in [oral intercourse] for the purpose of producing material that contains a visual representation depicting this activity, " the trial court never defined "oral intercourse" during its final instructions to the jury.

         On 22 May 2014, the jury returned verdicts finding defendant guilty of first-degree sexual exploitation of a minor, attempted statutory sex offense, eighteen counts of secret peeping, and six counts of taking indecent liberties with a child. On 23 May 2014, the trial court arrested judgment with respect to each of the secret peeping charges; entered judgments sentencing defendant to consecutive terms of 16 to 20 months imprisonment based upon each of defendant's convictions for taking indecent liberties with a child, to a consecutive term of 73 to 97 months based upon defendant's conviction for first-degree sexual exploitation of a minor, and to a consecutive term of 157 to 198 months imprisonment based upon defendant's conviction for attempted statutory sex offense; and ordered that defendant register as a sex offender following his release from imprisonment. Defendant noted an appeal to the Court of Appeals from the trial court's judgments.

         In seeking relief from the trial court's judgments before the Court of Appeals, defendant argued that the trial court had erred by allowing the prosecutor "to misstate the law to the jury regarding an essential element of sexual exploitation" of a minor and by failing to instruct the jury that guilt of first-degree sexual exploitation of a minor required proof of "penetration, however slight." In rejecting defendant's challenge to the prosecutor's closing argument, the Court of Appeals determined that "the prosecutor's remarks [constituted] reasonable inferences of the law" given that first-degree sexual exploitation "include[s] digitally manipulated photos that had been produced without a minor being actually engaged in sexual activity, provided that the image depicted an actual minor engaged in sexual activity." State v. Fletcher, __ N.C. __, 782 S.E.2d 926, 2016 WL 797895 (2016) (unpublished), at *5. The Court of Appeals further noted that, "to the extent that the prosecutor's argument could be construed as a misstatement of law, it was remedied by the trial court's multiple reiterations that it will instruct on the law and its instructing was in accordance with the pattern jury instructions." Id. at *6.

         Secondly, the Court of Appeals rejected defendant's contention that " 'oral intercourse' requires some evidence that that defendant's male sex organ penetrated Diane's mouth." Id. at *9. After acknowledging long-standing precedent to the effect that both vaginal intercourse and anal intercourse require penetration, the Court of Appeals stated that, "[g]iven the ambiguity of the phrase and these indicators of meaning, " it would decline "to impose the requirement that, when the State proceeds under 'oral intercourse, ' it must prove that the victim's mouth was penetrated." Id. at *10. As a result, the Court of Appeals found no error in the proceedings leading to the entry of the trial court's judgments.

         In seeking further review of the Court of Appeals' decision by this Court, defendant argued that "the prosecutor misstated the law during his closing argument when he told the jury that it could convict [defendant] of first degree exploitation even if it determined that the images were fabricated or manipulated" and that the trial court's decision to overrule his objection to the prosecutor's argument "endorsed the prosecutor's misstatement in the presence of the jury." In addition, defendant argued that the Court of Appeals' decision to the effect that " 'oral intercourse' as contemplated by N.C. G.S. § 14-190.16 does not require penetration" "conflict[s] with this Court's well-established precedent regarding the definition of sexual 'intercourse.' " The State, on the other hand, urged us to refrain from granting further review in this case on the grounds that the Court of Appeals had correctly determined that the challenged prosecutorial argument rested upon " 'reasonable inferences' derived from the sexual exploitation statute"; that, "even assuming some impropriety, the trial court's instruction to the jury cured any such improper argument"; and that the Court of Appeals had "relied upon several well established principles of statutory construction" in determining that "oral intercourse" as that term is used in N.C. G.S. § 14-190.13(5)(b) did not involve penetration. We granted defendant's petition for discretionary review of the Court of Appeals' decision on 9 June 2016.

         In seeking to persuade us that the trial court erred by overruling his objection to the prosecutor's argument that the images utilized to support the first-degree sexual exploitation of a minor charge did not need to depict actual sexual activity, defendant contends that the relevant statutory provision requires "that a minor actually be exposed to sexual activity" on the grounds that the presence or absence of such activity "is one distinction separating first-degree sexual exploitation from the two lesser degrees of sexual exploitation, " citing N.C. G.S. §§ 14-190.17 and 14-190.17A. The trial court's failure to sustain defendant's objection to the challenged prosecutorial argument clearly prejudiced defendant given that his "primary defense" "was that the images of Diane sleeping" had been "digitally manipulated through the use of computer software" and, "at worst, simulated sexual activity." In defendant's view, the trial court's jury instructions did not suffice to cure the prejudice arising from the prosecutor's argument given that "the pattern instruction employed by the trial court merely tracked the language of the statute, and . . . did not explicitly address the prosecutor's misstatement." Finally, defendant asserted that "the jury's logically inconsistent verdicts of attempted statutory sex offense and completed first-degree sexual exploitation" highlighted the prejudicial effect of the trial court's error.

         Secondly, defendant contends that the trial court's failure to instruct the jury that "oral intercourse" required proof of "penetration, however slight, " constituted prejudicial error. After noting that a "trial court is required to give [a requested] instruction, at least in substance, if it is a correct statement of the law and supported by the evidence, " citing State v. Shaw, 322 N.C. 797, 804, 370 S.E.2d 546, 550 (1988), defendant contends that, because "this Court has consistently held that the phrases 'vaginal intercourse' and 'anal intercourse' both entail penetration, however slight, " the statutory reference to "oral intercourse" should be understood to require "penetration" as well given that "it is conclusively presumed that the intention of the Legislature must be taken to be in the import of the words previously judicially construed, " quoting Jones v. Commissioners, 137 N.C. 579, 608, 50 S.E. 291, 301 (1905).

         The State, on the other hand, contends that the Court of Appeals correctly determined that the challenged portion of the prosecutor's argument, rather than misstating the law, reflected a "reasonable inference" "derived from the exploitation statute." Moreover, even if the trial court erred by failing to sustain defendant's challenge to the relevant portion of the prosecutor's argument, "[d]efendant cannot demonstrate prejudicial error" given the overwhelming evidence of defendant's guilt and the fact that the trial court correctly instructed the jury concerning the issue of defendant's guilt of first-degree sexual exploitation of a minor, with any inconsistency between the jury's verdicts concerning the issue of defendant's guilt of statutory sex offense and first-degree sexual exploitation of a minor failing to establish prejudice "stemming from the prosecutor's brief statement concerning manipulated images, " citing State v. Davis, 214 N.C. 787, 794, 1 S.E.2d 104, 108 (1939) (holding that, if the record contains sufficient evidence to support a verdict, "mere inconsistency will not invalidate the verdict").

         In addition, the State asserts that the trial court's jury instructions "adequately addressed each essential element" of the offense of first-degree sexual exploitation of a minor, so that "the trial judge was not required to read [d]efendant's requested jury instruction." According to the State, defendant's requested instruction concerning the definition of "oral intercourse" "would narrow the scope of the statute and . . . [allow] an adult [to] escape prosecution even if he actively filmed or produced a picture of his penis touching the lips, tongue or mouth of a minor" despite the General Assembly's clear intention to protect minors "from the physiological and psychological injuries resulting from sexual exploitation and abuse, " quoting State v. Williams, 232 N.C.App. 152, 159, 754 S.E.2d 418, 423-24, appeal dismissed and disc. rev. denied, 367 N.C. 784, 766 S.E.2d 846 (2014). As a result, the State urges us to affirm the Court of Appeals' decision.

         As a general proposition, parties are given "wide latitude" in their closing arguments to the jury, State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975) (citations omitted), with the State being entitled to "argue to the jury the law, the facts in evidence and all reasonable inferences drawn therefrom, " State v. Goss, 361 N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (quoting State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709-10 (1995), cert. denied, 516 U.S. 1148, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996)), cert. denied, 555 U.S. 835, 129 S.Ct. 59, 172 L.Ed.2d 58 (2008). However, "[i]ncorrect statements of law in closing arguments are improper, and upon [a] defendant's objection, the trial judge should . . . sustain [the] objection and instruct the jury to disregard the statement." State v. Ratliff, 341 N.C. 610, 616-17, 461 S.E.2d 325, 328-29 (1995) (citation omitted).[2] A challenge to the trial court's failure to sustain a defendant's objection to a comment made during the State's closing argument is reviewed for an abuse of discretion, State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364 (citing State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)), cert. denied, 540 U.S. 971, 124 S.Ct. 442, 157 L.Ed.2d 320 (2003), with the reviewing court being required to "first determine if the remarks were improper" and then "determine if the remarks were of such a magnitude that their inclusion prejudiced [the] defendant." Id. at 101, 588 S.E.2d at 364 (citing and quoting Jones, 355 N.C. at 131, 558 S.E.2d at 106). Assuming that the trial ...


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