State v. Fletcher, No. 94PA16

• Docket Nº: No. 94PA16
• Citation: 370 N.C. 313, 807 S.E.2d 528
• Case Date: December 08, 2017
• Court: United States State Supreme Court of North Carolina

370 N.C. 313
807 S.E.2d 528

STATE of North Carolina
v.
Harold Lamont FLETCHER

No. 94PA16

Supreme Court of North Carolina.

Filed December 8, 2017

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.

370 N.C. 314

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.

807 S.E.2d 531

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.

370 N.C. 315

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

370 N.C. 316

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

807 S.E.2d 532

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.

370 N.C. 317

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)...