Opinion
No. COA16-100
09-06-2016
STATE OF NORTH CAROLINA v. JERAL THOMAS ORE, JR.
Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Kimberly P. Hoppin for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Durham County, No. 09 CRS 42754 Appeal by Defendant from judgment entered 4 March 2015 by Judge Beecher R. Gray in Superior Court, Durham County. Heard in the Court of Appeals 8 August 2016. Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State. Kimberly P. Hoppin for Defendant. McGEE, Chief Judge.
Jeral Thomas Ore, Jr. ("Defendant") worked at a Durham area Burger King in 2007. A fourteen-year-old girl ("T.W."), lived near the Burger King and spent a lot of time there with her friends. In June and early July of 2007, T.W. went to the Burger King almost every day, and she often talked to Defendant while Defendant was working. Defendant was thirty-one years old at the time. On the evening of 4 July 2007, T.W. was sitting on her aunt's porch when Defendant, who was walking by, saw T.W. and approached her. Defendant and T.W. talked for a while and, according to T.W., "he asked me if I want to go see his place, and I said, 'Sure.'" T.W. testified that they walked to Defendant's apartment, which was a short distance away. T.W. testified that they kissed in Defendant's living room, and Defendant then carried T.W. into his bedroom where T.W. undressed and they had sexual intercourse two times. Defendant then walked T.W. half-way back to her aunt's house, and T.W. continued on to her aunt's house.
T.W. told some of her friends she had sex with an adult man, and one of her friends disclosed this information to T.W.'s mother. T.W.'s mother asked T.W. if this was true, and T.W. replied that it was. T.W.'s mother drove to Defendant's apartment building and confronted Defendant. Defendant denied knowing T.W., but agreed to accompany T.W.'s mother back to her house. T.W.'s mother testified Defendant's demeanor changed when he saw T.W., but he again denied knowing her. T.W. told her mother that Defendant was the man with whom she had sex. T.W.'s mother drove Defendant back to his apartment, and called the police.
Durham police officer Karl Smith ("Officer Smith") responded to the call from T.W.'s mother. Defendant agreed to accompany Officer Smith to police headquarters, and T.W. also came to headquarters to be interviewed. T.W. told Officer Smith that the encounter with Defendant was the first time she had had sex. T.W. subsequently informed Officer Smith that she had sex with a fifteen-year-old boy two days after her encounter with Defendant.
Defendant initially continued to deny knowing T.W., but then admitted T.W. had come to his apartment the night of 4 July 2007. He said he recognized T.W. from seeing her at Burger King, but that he had not known her name. Defendant acknowledged he knew T.W. was fourteen, but continued to deny he had sex with her.
T.W. was examined on 8 August 2007 by Dr. Karen St. Claire ("Dr. St. Claire"), who reported that T.W.'s hymen showed tearing consistent with prior sexual intercourse or some other form of vaginal penetration. Dr. St. Claire testified at trial that the damage to the hymen could have occurred from the alleged sexual intercourse with Defendant, the sexual intercourse with the fifteen-year-old boy, or some other event.
Defendant was indicted on 17 August 2009 for statutory rape, second-degree kidnapping, taking indecent liberties with a child, and felony child abduction. Following a jury trial, Defendant, on 4 March 2015, was found not guilty of statutory rape, and second-degree kidnapping. The jury could not reach a unanimous verdict on taking indecent liberties with a child, and the State took a voluntary dismissal of that charge. Defendant was found guilty of felony child abduction. Defendant appeals.
In Defendant's sole argument, he contends the trial court erred in denying his motion to dismiss the charge of felony child abduction at the close of all the evidence. We agree.
In State v. Miller, 363 N.C. 96, 678 S.E.2d 592 (2009), our Supreme Court discussed relevant considerations in reviewing the denial of a motion to dismiss as follows:
When ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered[.] The trial court must decide "'only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.'" "'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. However, so long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also "permits a reasonable inference of the defendant's innocence."Id. at 98-99, 678 S.E.2d at 594 (citations omitted). "This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
Concerning abduction of a child:
[A] person is guilty of child abduction if he or she "abducts
or induces any minor child who is at least four years younger than the person to leave any person, agency, or institution lawfully entitled to the child's custody, placement, or care[.]" N.C. Gen. Stat. § 14-41(a) (2011). It is "not necessary for the State to show she was carried away by force, but evidence of fraud, persuasion, or other inducement exercising controlling influence upon the child's conduct would be sufficient to sustain a conviction" for this offense.State v. Lalinde, 231 N.C. App. 308, 312, 750 S.E.2d 868, 872 (2013) (citation omitted).
In the present case, there is no dispute that, on 4 July 2007, T.W. was a minor and Defendant was more than four years older than T.W. In addition, evidence supports that during the time T.W. was at her aunt's house on 4 July 2007, T.W.'s aunt was a person who was lawfully entitled to T.W.'s care. The dispositive issue in the present case is whether Defendant "induced" T.W. to leave her aunt's house and accompany him to his apartment.
T.W. testified that she agreed to accompany Defendant to his apartment. However, T.W.'s consent is not dispositive. State v. Burnett, 142 N.C. 577, 581, 55 S.E. 72, 74 (1906) (citation omitted) ("'It is clear that the consent of the child, obtained by means of persuasion, is no defense, since the result of such persuasion is just as great an evil as if it had been accomplished by other means.'"). In order to meet its burden in this regard, the State had to present evidence sufficient for the jury to determine that Defendant obtained T.W.'s consent to accompany him by "fraud, persuasion, or other inducement exercising controlling influence upon" T.W. Lalinde, 231 N.C. App. at 312, 750 S.E.2d at 872.
The relevant evidence presented at trial, taken in the light most favorable to the State, was as follows: (1) T.W. frequented the Burger King where Defendant worked in the months leading up to 4 July 2007, and Defendant and T.W. often carried on conversations with each other; (2) Defendant, upon discovering that T.W. was only fourteen, stated that he wished she was eighteen; (3) Defendant told T.W. at some point in time that she "was pretty, and he was going to take care of [her;]" and (4) T.W. testified that on 4 July 2007: "I was sitting on my aunt's front porch and [Defendant] was walking down, coming from my left, and he seen me and he sat down[.] . . . . And he asked me if I want to go see his place, and I said, 'Sure.'" We hold, on the evidence before us, that merely asking T.W. if she wanted to see his apartment does not rise to the level of "fraud, persuasion, or other inducement exercising controlling influence[.]" Id.
Evidence of Defendant's conduct prior to 4 July 2007 could support an inference that Defendant was interested in T.W. sexually prior to 4 July 2007, but it is insufficient to indicate any ongoing attempt to induce T.W. to leave her aunt's house on that date. The State presented no evidence that Defendant did anything to persuade T.W. to accompany him on the night of 4 July 2007 other than asking her if she would like to do so. "Of course, if there is no force or inducement and the departure of the child is entirely voluntary, there is no abduction." Burnett, 142 N.C. at 581, 55 S.E. at 74 (citation omitted). T.W. testified that Defendant asked her if she would like to accompany him to his apartment, and she responded: "Sure." We hold the evidence in this case was insufficient to be submitted to the jury on the inducement element of child abduction. "When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted." Miller, 363 N.C. at 99, 678 S.E.2d at 594 (citation omitted).
We also note that Defendant was found not guilty of the sex-related crimes.
Our holding is not a per se rule. There may well be circumstances in which an adult's act of asking a minor if the minor would like to accompany the adult rises to the level of inducement. By way of example, inducement might be found based upon a history of prior interactions between the adult and the minor. Our analysis might also change depending upon the age of the minor - a three-year-old, for example, will generally be more susceptible to suggestion than a teenager. However, there must be some evidence additional to that present in the case before us.
VACATED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).