State v. Fraley

• Citation: 688 S.E.2d 778
• Decision Date: 16 February 2010
• Docket Number: No. COA09-785.,COA09-785.
• Parties: STATE of North Carolina v. Charles Daniel FRALEY.
• Court: Court of Appeal of North Carolina (US)

688 S.E.2d 778

STATE of North Carolina v. Charles Daniel FRALEY.

No. COA09-785.

Court of Appeals of North Carolina.

February 16, 2010.

Appeal by defendant from judgment entered 17 February 2009 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 8 December 2009.

Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.

Mark Montgomery, for defendant-appellant.

CALABRIA, Judge.

Charles Daniel Fraley ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of soliciting a person the defendant believed to be a child by means of a computer for the purpose of committing an unlawful sex act. We find no error.

I. BACKGROUND

On 7 December 2007, defendant, a married father of a nine-year-old daughter, logged on to the Yahoo Internet chat room titled NC Romance ("NC Romance").¹ Defendant did not log on using his real name, but instead used the pseudonym "moonraker1rain." Detective Kelly Marshburn ("Detective Marshburn"), a cyber crimes detective with the Raleigh Police Department ("RPD"), also logged on to NC Romance that day. As part of her duties with the RPD, Detective Marshburn signed on to NC Romance as "cassia dutra" ("Cassia"). Detective Marshburn adopted the persona of Cassia, a 14 year-old-girl who lived with her mother in Raleigh near Crabtree Valley Mall ("the mall"), in order to see if someone would solicit a child for sex using a computer.

At 2:50 p.m. on 7 December 2007, defendant made his initial contact with Cassia in the NC Romance chat room. By 3:00 p.m., defendant asked Cassia if she was "looking for a hook up." At 3:08 p.m., defendant asked Cassia if she would "like [to] meet and have good sex," and then asked Cassia to send him a picture of herself over the Internet. Cassia sent defendant three pictures. The pictures were actually photographs of a female coworker at the RPD taken when the coworker was 14 years old. The coworker had given Detective Marshburn permission to use the photos. When defendant received the pictures, he replied to Cassia, "you look pretty." Defendant then sent two pictures of himself to Cassia. In one photo, defendant was pictured wearing only a small bathing suit and sunglasses, and in the other, defendant was wearing military fatigues. Defendant then told Cassia, "you look hot to [sic] ... do you want to get together?" When Cassia asked how old he was, he replied that he was 32 and asked how old Cassia was. When she answered that she was 14, defendant stated that he thought she was older. However, defendant continued to chat with Cassia online for nearly 30 minutes. During this time, defendant asked Cassia where she lived, joked that he could "hook up" with her and her mother, and suggested meeting Cassia in person so they could "go somewhere and park."

On 12 December 2007, defendant logged on to NC Romance under the pseudonym "dan claussen." Defendant chatted with Cassia for nearly 50 minutes. During the chat, Cassia again identified herself as being 14 years old. Defendant expressed interest in meeting Cassia and asked her, "what do you want to do when we meet?" When Cassia asked what defendant wanted to do, he answered, "that is up to you sweetie[.]" Defendant suggested that he and Cassia meet at 1:00 p.m. on 13 December, and Cassia agreed. He stated, "I get the feeling that you are wanting to talk about sex[.]" Cassia said "sure," and defendant then stated that sex was something he would talk about in person. Defendant then asked Cassia if she was a virgin and also asked for her telephone number. Cassia gave him a number that, unbeknownst to defendant, was a specific undercover number the RPD would use for Detective Marshburn's cases. Defendant said he would call Cassia later that evening, and he and Cassia also agreed to meet at the food court at the mall the next day. On 13 December 2007, defendant sent Cassia an offline instant message stating, "hey sweetie ... sorry I didn't call, I will still be there at 1 today and I hope to see you there, bye for now sweetie." However, defendant and Cassia did not meet that day.

After the online chat of 12 December 2007, Detective Marshburn was able to identify the IP address of "moonraker1rain" and "dan claussen," and tracked it to a military base. Detective Marshburn then obtained a subpoena for the Internet carrier service, which identified defendant as the subscriber who had been chatting under those pseudonyms. On 16 December 2007, defendant sent three offline instant messages to Cassia. In one, he asked if they could meet the next night. Cassia did not respond and did not meet with defendant on 17 December. On 20 December 2007, defendant sent a chat message to Cassia stating that he was going to be away for Christmas and would "catch back up" with Cassia after that. Cassia did not respond.

On 9 January 2008, defendant called Cassia on the telephone. During the course of the conversation, defendant told Cassia that she had a nice voice, and stated that he would come see her on Tuesday. He also stated that he could get in trouble for talking to Cassia because she was so young. When Cassia stated that she was nervous because she "never did this before," defendant replied that he had done so once, "but not with someone this young," adding that he and his previous paramour "just kissed." When Cassia asked if defendant liked younger girls, he replied in the affirmative because "[t]hey just look better, feel better." Defendant and Cassia agreed to meet in person at the food court at the mall, and agreed to chat more online so that Cassia could tell defendant "everything that [she] want[ed] to do."

Defendant and Cassia engaged in an online chat that day that lasted an hour. Defendant stated that he was still interested in meeting Cassia in person and asked again for her phone number, which she gave him. Defendant told Cassia that she "sound[ed] very sexy" and asked her "what all [she] want[ed] to get into" when he saw her. When Cassia asked if they were going to kiss, defendant replied, "if you want," and stated, "we can do more if you want." Defendant then asked if Cassia was "turned on," and told her, "I want you on top of me[.]" When Cassia asked, "like sex," defendant replied, "yeah." Defendant agreed to meet Cassia that afternoon. Cassia stated that she would be wearing her pink New York Yankees baseball cap. However, they did not meet. Defendant sent a chat message to Cassia stating that the reason he could not meet was because he locked his keys in his vehicle.

On 15 January 2008, defendant sent an offline instant message to Cassia stating that he would meet her at 9:30 that morning. Later that morning, defendant and Cassia agreed that they would meet at 11:30 a.m. at the food court at the mall. At 10:00 that morning, Detective Marshburn was sitting at a table in the food court of the mall. Detective Regina Corcoran ("Detective Corcoran") of the RPD portrayed Cassia. Detective Corcoran was sitting at another table in the food court approximately 25 feet from Detective Marshburn. Detective Corcoran was wearing jeans, a sweatshirt, and a pink New York Yankees baseball cap and was pretending to listen to an Ipod. As defendant entered the food court and sat down across from Detective Corcoran, Detective Marshburn and Sergeant Gary Hinnant ("Sergeant Hinnant") of the RPD approached defendant and asked to speak with him. At that point, defendant stated, "I knew it."

Defendant was arrested and indicted on a charge of solicitation of a child by computer to commit an unlawful sex act. The trial commenced on 17 February 2009. At the close of the State's evidence, defendant moved to dismiss the charge, and the trial court denied the motion. Defendant then presented evidence. There is nothing in the record or transcript showing defendant renewed his motion at the close of all the evidence. On 19 February 2009, the jury returned a verdict of guilty. The trial court then sentenced defendant to a minimum term of four months to a maximum term of five months in the custody of the North Carolina Department of Correction and ordered defendant to register as a sex offender upon his release. Defendant appeals.

II. MOTION TO DISMISS

Defendant argues that the trial court erred in denying his motion to dismiss. We disagree.

As an initial matter, we note that defendant made a motion to dismiss at the conclusion of the State's case, but there is nothing in the record showing that he renewed his motion at the conclusion of all the evidence. N.C. R.App. P. 10(b)(3) (2009) states:

A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.

Generally, if a defendant failed to renew his motion to dismiss after he presented evidence, he is precluded from challenging the denial of his motion to dismiss on appeal. State v. Brunson, 187 N.C.App. 472, 476, 653 S.E.2d 552, 555 (2007). "However, pursuant to N.C. R.App. P. 2, we will hear the merits of defendant's claim despite the rule violation because defendant also argues ineffective assistance of counsel based on counsel's failure to make the proper motion to dismiss." State v. Gayton-Barbosa, ___ N.C.App. ___, ___, 676 S.E.2d 586, 593 (2009).

We review a trial court's denial of a motion to dismiss criminal charges de novo, to determine "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of de...