State Of North Carolina v. Ligon

• Decision Date: 17 August 2010
• Docket Number: No. COA09-747.,COA09-747.
• Parties: STATE of North Carolinav.James Edd LIGON, Jr.
• Court: North Carolina Court of Appeals

697 S.E.2d 481

STATE of North Carolinav.James Edd LIGON, Jr.

No. COA09-747.

Court of Appeals of North Carolina.

Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from judgment entered 26 June 2006 by Judge Zoro J. Guice, Jr. in Superior Court, Buncombe County. Heard in the Court of Appeals 8 December 2009.

Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State.

Brian Michael Aus, Durham, for defendant-appellant.

WYNN, Judge.

A person commits the offense of first degree sexual exploitation of a minor if he uses, employs, induces, coerces, encourages, or facilitates a minor to engage in sexual activity.¹ In the present case, Defendant James Edd Ligon, Jr., was convicted of first degree sexual exploitation of a minor and taking indecent liberties with a child based on several photographs he took of a minor female. Because these photographs do not meet the statutory definition of “sexual activity,” we reverse Defendant's conviction for first degree sexual exploitation of a minor. We uphold, however, Defendant's conviction on the charge of taking indecent liberties with a child.

The police first became interested in Defendant when they were notified by employees at two separate businesses, Eckerd Drugs and Walgreens, that Defendant sought to have questionable photographs developed. Walgreens has a policy against printing photographs depicting full frontal nudity, sexual activity, pornography, or child pornography. Three of the photographs that Walgreens withheld from Defendant's order depicted the five-year-old child whom we refer to by the pseudo-initials, A.B.

One picture showed A.B., wearing shorts, sitting on a bench with her legs spread apart. Another picture showed the photographer's hand pulling away the leg of A.B.'s shorts revealing the crotch area underneath her pants. A third picture showed A.B. pulling up the leg of her own shorts with the fingers of her other hand in her crotch area. Due to the lighting in the photographs, it could not be determined whether the pictures showed A.B.'s private parts or underpants.

Detective Paula Barnes met with Defendant twice about the photographs. In an interview on 31 October 2005, Detective Barnes asked Defendant if he knew the girl depicted in the photographs. Defendant said he did, and that she lived just up the street from him. Defendant told Detective Barnes that the reason he had taken the photographs of A.B. was that his dog had jumped into her lap and had scratched her on her inner thigh. Defendant told Detective Barnes that he was concerned about lawsuits, and he wanted to document that there was no serious injury.

At some point, Detective Barnes confirmed with A.B. and with her parents that she had been scratched by Defendant's dog. The mother told Detective Barnes that the scratch was on the upper thigh; the child said it was on the lower thigh.

Detective Barnes asked Sergeant David Lee Romick, a detective sergeant with the Asheville Police Department, for his assistance in interviewing Defendant. On 17 November 2005, Sergeant Romick interviewed Defendant. He showed Defendant all of the photographs, including the photographs of A.B. that had been withheld by Walgreens. Defendant told Sergeant Romick that he had taken the photographs of A.B. because his dog had scratched her upper thigh, and he was trying to avoid a lawsuit.

Sergeant Romick then accused Defendant of taking the pictures of A.B. in order to stimulate himself. “You looked at these photographs, and you would masturbate while looking at these photographs of this little girl.” Defendant began to cry and get upset. He did not disagree with Sergeant Romick. Defendant said he was sick and needed help. He agreed to speak further with Detective Barnes about the photographs.

Defendant then told Detective Barnes that he used his other photographs, specifically pictures depicting a young woman in a red bikini, for masturbation material. Defendant indicated that he realized he had a problem, and he asked where he could go to get help. Detective Barnes then asked Defendant whether he would have used the photographs of A.B. for masturbation, had he been allowed to take them home. Defendant said he would have.

Defendant was tried on 20-23 June 2006 for taking indecent liberties with a child and first degree sexual exploitation of a minor. The State presented the evidence summarized above. Defendant introduced testimony from his neighbor, John Livingston, who stated that he saw A.B. playing with Defendant's dog on the day she was allegedly injured. Livingston testified that he heard her yell, and when he looked in her direction, he saw Defendant's dog in her lap while she was sitting on a bench. Livingston testified that he saw the dog jump away and A.B. looking on her leg as though “maybe something happened to her.” Livingston went back inside, and did not see anyone taking pictures.

Defendant testified in his own defense. He admitted taking the photographs of A.B., but explained that the only reason he did so was to protect himself from lawsuits. Defendant testified that the pictures were not taken for any kind of sexual gratification. He admitted that he had masturbated to photographs similar to those of the female in the red bathing suit, but he denied having told Detective Barnes that he masturbated to those particular pictures. He said that when he told Detective Barnes he needed help, he meant he needed legal help with this case. Defendant also introduced the testimony of his mother, with whom he lives, three people from the congregation at his church, and his girlfriend.

Defendant's counsel moved to dismiss all charges at the close of the State's case. The trial court denied the motion to dismiss the charge of taking indecent liberties with a child, but reserved ruling on the charge of first degree sexual exploitation of a minor. Defense counsel presented evidence and, at the close of all the evidence, renewed his motion to dismiss the charge of sexual exploitation of a minor. The trial court denied the motion. The jury found Defendant guilty of taking indecent liberties with a child and first degree sexual exploitation of a minor.

On appeal, Defendant argues that the trial court erred by: (I) permitting various witnesses to give their opinions regarding the photographic evidence; (II) admitting hearsay statements of A.B. and her babysitter; (III) denying Defendant's motion to dismiss the charges due to insufficient evidence; and (IV) failing to instruct the jury on second-degree sexual exploitation of a minor.

I. Opinion Testimony Regarding the Photographs

Defendant first argues that the trial court erred in allowing lay opinion testimony regarding the content of the pictures. Defendant concedes that he did not object at trial to the witnesses' characterization of the pictures. We therefore review the admission of this testimony for plain error. See N.C. R.App. P. 10(a)(4) (2010). “Under the plain error standard of review, defendant has the burden of showing: ‘(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.’ ” State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004)(quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)) cert. denied, Jones v. North Carolina, 543 U.S. 1023, 125 S.Ct. 659, 160 L.Ed.2d 500 (2004).

Defendant also argues that the trial court erred in admitting the Police Incident Report which states that “photo's [sic] had juvenile's female private's [sic] showing.” Defendant objected at trial to the admission of the report. We therefore review the trial court's admission of this evidence for abuse of discretion. State v. Buie, 194 N.C.App. 725, 730, 671 S.E.2d 351, 354 disc. rev. denied, 363 N.C. 375, 679 S.E.2d 135 (2009). Defendant argues that each opinion as to what the photographs depicted was prejudicial because the jury would have determined that the pictures were not sexual in nature and consequently found Defendant not guilty.

There is nothing in the record indicating that any of the witnesses testified as an expert. The question is therefore whether the testimony regarding the contents of the photographs was admissible as lay opinion. Pursuant to the North Carolina Rules of Evidence, admissible lay opinion testimony “is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen.Stat. § 8C-1, Rule 701 (2009).

The record shows no evidence that the testifying witnesses perceived the behavior depicted in the photographs first-hand. Although their opinions as to what the pictures showed were based on their perceptions of the photographs, the helpfulness of those opinions to the jury, which was in no worse position to evaluate the pictures, is questionable. We must determine the extent to which a witness may testify to his observations of a photograph that is equally available to the jury.²

In State v. Fulton, 299 N.C. 491, 263 S.E.2d 608 (1980), our Supreme Court considered the admissibility of an officer's opinion that the tread design shown in a photograph of shoe tracks found near a crime scene and the tread design on the bottom of defendant's tennis shoes were identical. The Court held that the admission of this testimony was error. Id. at 494, 263 S.E.2d at 610. Because no effort had been made to qualify the witness as an expert, it followed “that his opinion was inadmissible because the jury was apparently as well qualified as the witness to draw the inferences and conclusions from the facts that [the officer] expressed in his opinion.” Id.³

We consider also State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994). Defendants in Alexander, alleged that “the trial court erred when it allowed Officer Frank to...