State v. Southern, 110519 NCCA, COA18-1173

Docket Nº:COA18-1173
Opinion Judge:Collins, Judge.
Attorney:Attorney General Joshua H. Stein, by Special Deputy Attorney General Olga E. Vysotskaya de Brito, for the State-Appellee. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.
Judge Panel:Judges BRYANT and STROUD concur.
Case Date:November 05, 2019
Court:Court of Appeals of North Carolina




No. COA18-1173

Court of Appeals of North Carolina

November 5, 2019

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 24 April 2019.

Appeal by Defendant from judgment entered 15 February 2018 by Judge R. Stuart Albright in Forsyth County Nos. 15 CRS 50369, 2759 Superior Court.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Olga E. Vysotskaya de Brito, for the State-Appellee.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.

Collins, Judge.

Defendant Shan Dale Southern appeals from judgment entered upon a jury verdict of guilty of felony disseminating obscenity and upon his guilty plea of having attained habitual felon status. The charges against Defendant resulted from his creating a Facebook page under his ex-partner's name and publicly posting photographs of her exposed breast and genitalia on that page. On appeal, Defendant argues the trial court erred by denying his motion to dismiss for insufficient evidence and admitting irrelevant evidence. Defendant also argues he received ineffective assistance of counsel. We discern no error.

I. Factual and Procedural Background

From 2010 to 2012, Defendant and Katie1 were in a relationship. At some point during this time, while Katie was sleeping, Defendant took photographs of Katie's nude body without her consent. One of the photographs was of Katie's nude body and exposed bare breast ("First Photograph"). A second photograph was a close-up of Katie's vagina being spread open by Defendant's fingers ("Second Photograph"). Katie discovered these photographs on Defendant's phone, and told Defendant that she was "disturbed and disgusted." Katie asked Defendant to delete the photographs; Defendant promised to do so.

After Defendant and Katie ended their relationship, Katie began dating her future husband in 2013. On 11 January 2015, Katie's husband showed her a Facebook friend request he had received. The public Facebook profile was listed under Katie's full name. The Facebook profile picture featured the Second Photograph. The Facebook cover photo featured the First Photograph. Katie and her husband called the police and contacted Facebook, which shut down the public profile several hours later.

Officer David Smith of the Winston-Salem Police Department arrived at Katie's home and reviewed the Facebook profile in question. Katie told Smith that she recognized the phone number associated with the account as belonging to Defendant and stated that she had seen the photographs when she and Defendant were dating. Katie stated she wanted to press charges and Smith initiated the process of doing so.

Smith called his superior, Sergeant Michael Knight, to accompany him to Defendant's residence. In their recorded conversation with Defendant, he admitted to the officers that he had created the Facebook profile with Katie's full name listed as the owner. When Defendant then attempted to delete the profile, Knight seized the phone from him. Later that day, the State filed charges against Defendant and he was arrested. Defendant was indicted on 6 July 2015 for felony dissemination of obscenity, N.C. Gen. Stat. § 14-190.1 (2015), and for having attained habitual felon status, N.C. Gen. Stat. § 14-7.1 (2015).

Defendant filed a motion "to exclude everything regarding how [Katie] feels, her emotions surrounding the posting of the pictures and/or the impact the posted pictures had on [Katie's] life or career" as well as "all evidence pertaining to how [D]efendant procured the posted pictures at issue and/or his interest in doing so." Defendant's trial commenced on 13 February 2018. Prior to jury selection, the trial court heard and denied Defendant's motion. The trial court instructed Defendant to "make your objection during the course of the trial." However, Defendant did not object to the challenged evidence when it was offered in front of the jury at trial.

The State's evidence included testimony from Katie, Katie's husband, and Officers Smith and Knight. The State submitted a recording in which Defendant admitted to creating and attempting to delete the Facebook profile. Further, an expert in digital forensic examination affirmed that the photographs had been saved on Defendant's phone, and that the device had been used to log into the Facebook profile. The State introduced various exhibits, including Photograph...

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