State v. Lark

Decision Date07 July 2009
Docket NumberNo. COA08-1239.,COA08-1239.
Citation678 S.E.2d 693
PartiesSTATE of North Carolina v. Ronald David LARK.
CourtNorth Carolina Court of Appeals

McGEE, Judge.

Ronald David Lark (Defendant) was found guilty on 4 April 2008 of indecent liberties with a child by fellatio, first-degree sexual offense by fellatio, crime against nature, and felonious child abuse. Defendant was acquitted of indecent liberties with a child by anal sex and first-degree sexual offense by anal sex. The trial court consolidated Defendant's indecent liberties with a child and first-degree sexual offense convictions and sentenced Defendant to 336 months to 413 months in prison. The trial court consolidated Defendant's crime against nature and felonious child abuse convictions and sentenced Defendant to 34 months to 50 months in prison to run consecutively with Defendant's prior judgment. Defendant appeals.

At trial, the State presented the following evidence. Defendant is the biological father of J.A.S., the victim. J.A.S. first began visiting Defendant in late 2002, when J.A.S. was nine years old. J.A.S. testified that on one occasion when he was visiting Defendant, Defendant called J.A.S. into the bathroom and told J.A.S. to "suck [Defendant's] wiener." J.A.S. did as he was told and put Defendant's penis in his mouth. Defendant told J.A.S. that if he told anyone, Defendant would hurt J.A.S. or J.A.S.'s mother. On another occasion when J.A.S. was visiting Defendant, Defendant again asked J.A.S. to "suck his wiener[.]" When J.A.S.'s mother picked him up from that visit, J.A.S. told his mother Defendant had called her names. As a result, J.A.S.'s mother stopped J.A.S.'s visits with Defendant.

J.A.S.'s mother allowed J.A.S. to resume visits with Defendant in the middle of 2005, when J.A.S. was twelve years old. J.A.S.'s mother testified that after J.A.S. resumed visits with Defendant, she noticed a difference in J.A.S.'s attitude. J.A.S. became withdrawn, his grades dropped, and he began having behavioral problems at school. In November 2005, J.A.S. was suspended from school for two days for an angry outburst. On the first day of J.A.S.'s suspension, his mother took him to Defendant's house. J.A.S. testified that while he was at Defendant's house, Defendant again told J.A.S. to "suck his wiener." Defendant then pushed J.A.S. onto a bed and forced anal sex on him. On the second day of J.A.S.'s suspension from school, he begged his mother not to take him back to Defendant's house. J.A.S. testified he did not tell his mother about Defendant's abuse because he was afraid Defendant would hurt him. J.A.S. testified that Defendant had anal intercourse with him two or three times and that Defendant forced him to put Defendant's penis in his mouth six or seven times.

J.A.S.'s mother testified that two weeks after being suspended from school, J.A.S. was caught molesting other children. J.A.S. told his mother that Defendant "did things" to him. Detective Kelly Beard (Detective Beard) with the King Police Department investigated the allegations of abuse against Defendant. Defendant voluntarily came to the police station to answer questions. Defendant denied J.A.S.'s allegations. However, when Detective Beard told Defendant that J.A.S. engaged in sex acts with other boys, Defendant said: "Well, I guess somebody showed him how to do it." Defendant told Detective Beard that he had problems finding dates. As Defendant left the police station, he said to Detective Beard: "Well, I'm a little crippled.... [A] man's got to do what a man's got to do."

At the time of trial, J.A.S. was living in a residential treatment facility. Victor Isler (Isler), a clinical social worker at the facility, was qualified as an expert in the fields of sexualized trauma and in recognizing sexualized behaviors in victims. Isler testified that J.A.S.'s behavior was consistent with that of a person who had experienced sexualized trauma. Isler further testified that as a result of that trauma, J.A.S. suffered from post-traumatic stress disorder.

At the end of the State's evidence, Defendant made a motion to dismiss the charges. The trial court denied Defendant's motion. Defendant presented evidence at trial, including the testimony of several family members and friends who testified that J.A.S. was never at Defendant's house. However, Defendant's nephew testified that J.A.S. was at Defendant's house two or three times a month. Defendant's son, Christopher Lark (Lark), testified that he had lived with Defendant since he was fifteen years old. Lark testified that he had seen J.A.S. at Defendant's house.

Defendant testified on his own behalf and denied allegations that he sexually abused J.A.S. At the end of Defendant's evidence, Defendant renewed his motion to dismiss the charges against him. The trial court again denied Defendant's motion.

I.

Defendant argues in his assignment of error number one that the trial court erred in denying Defendant's motion to dismiss the charge of first-degree sexual offense by fellatio.

The standard of review for a motion to dismiss in a criminal trial is "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citing State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971)). "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Kraus, 147 N.C.App. 766, 769, 557 S.E.2d 144, 147 (2001) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). "In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)).

First-degree sexual offense is defined as "a sexual act ... [w]ith a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim." N.C. Gen.Stat. § 14-27.4 (2007). N.C. Gen.Stat. § 14-27.1 defines a "sexual act" as "cunnilingus, fellatio, analingus, ... anal intercourse ... [or the] penetration, however slight, by any object into the genital or anal opening of another person's body." N.C. Gen.Stat. § 14-27.1 (2007).

Because J.A.S. testified that on numerous occasions Defendant forced J.A.S. to perform fellatio, we find the State presented sufficient evidence to support Defendant's first-degree sexual offense charge. However, at one point in the trial court's jury instruction on first-degree sexual offense, the trial court stated: "[D]efendant is accused of committing first degree sex offense by performing fellatio upon J.A.S." Defendant argues that because the trial court misspoke in its jury instructions, there was insufficient evidence to support Defendant's conviction for first-degree sexual offense.

"The Due Process Clause ... requires that the sufficiency of the evidence to support a conviction be reviewed with respect to the theory of guilt upon which the jury was instructed." State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996) (citing Presnell v. Georgia, 439 U.S. 14, 16, 99 S.Ct. 235, 58 L.Ed.2d 207, 211 (1978)). In Wilson there was sufficient evidence that the defendant committed murder by acting in concert but insufficient evidence that the defendant committed murder by himself. Id. at 123, 478 S.E.2d at 510. However, the trial court failed to instruct the jury on acting in concert, thereby making it necessary for the State to prove each element of first-degree murder on the theory of premeditation and deliberation, including that the defendant fired the shots. Id. Our Supreme Court overturned the defendant's conviction for first-degree murder because there was insufficient evidence to support the conviction based upon the theory that the defendant committed the murder himself. Id. at 123-25, 478 S.E.2d at 510-12.

However, the present case is distinguishable from Wilson. The first-degree sexual offense statute only requires that the State prove Defendant "engage[d] in" a sexual act with J.A.S. N.C. Gen.Stat. § 14.27.4(a) (2007). The statute does not distinguish between forcing a victim to perform fellatio or performing fellatio upon a victim. Id. Further, our Supreme Court has held that "the trial court's charge to the jury must be construed contextually and isolated portions of it will not be held prejudicial error when the charge as a whole is correct." State v. Boykin, 310 N.C. 118, 125, 310 S.E.2d 315, 319 (1984).

In the present case, the trial court twice correctly instructed the jury that to find Defendant guilty of first-degree sexual offense, the jury must conclude that Defendant engaged in a sexual act with J.A.S. The trial court instructed the jury that "sexual act" meant "either fellatio or anal intercourse." The trial court further defined fellatio as "the touching by the lips or tongue of one person and the male sexual organ of another." Although in instructing the jury on Defendant's charges of first-degree sexual offense, the trial court misspoke by saying "performing" fellatio instead of "engaging in" fellatio, reading the jury instructions as a whole, the trial court correctly instructed the jury that to convict Defendant of first-degree sexual offense, it must find that Defendant engaged in a sexual act with J.A.S. As this instruction...

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  • State v. Tripp
    • United States
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    ...remand the case to the trial court for correction because of the importance that the record ‘speak the truth.’ " State v. Lark , 198 N.C. App. 82, 95, 678 S.E.2d 693, 702 (2009) (citation and marks omitted). "A clerical error is an error resulting from a minor mistake or inadvertence, espec......
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    ...committed the sex act stated in the indictment. Such a holding would be contrary to this Court's determination in State v. Lark, 198 N.C.App. 82, 88-89, 678 S.E.2d 693 (2009), disc. review denied, 363 N.C. 808, 692 S.E.2d 111 (2010). There, the defendant was tried and convicted on an indict......
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