State v. OakleyState v. Oakley
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Kenneth Michael Oakley (“defendant”) appeals from a judgment dated 20 March 2003 entered consistent with a jury verdict finding him guilty of two counts of sexual activity by a substitute parent. For the reasons stated within, we find no error.
The evidence tends to show that at the time of the occurrence, defendant was a twenty-three-year-old police officer employed by the Mebane Police Department and later the Alamance County Sheriffs Office. Defendant met sixteen-year-old Kevin W. O’Dell (“O’Dell”) in 2000 while responding to a call at the home of O’Dell’s mother, Janie Rook (“Rook”). Defendant was involved in a sexual relationship with Rook for approximately one year. During that time, defendant also spent time with O’Dell, buying him clothing, taking him on a weekend trip to a North Carolina beach, and on occasion letting O’Dell stay with him at the home he shared with another officer while O’Dell was having difficulty with Rook. During this time, O’Dell was arrested on a number of charges and was on juvenile, and later adult, probation for breaking and entering and various drug and alcohol related crimes.
On 1 January 2002, Rook had O’Dell, seventeen-years-old at that time, arrested for underage drinking and asked family members not to post bail for him. Defendant posted O’Dell’s bond, signed the release forms as his temporary custodian, and took O’Dell home to stay with him. Defendant also obtained permission from O’Dell’s parole officer for O’Dell to live with him. During and prior to the time O’Dell resided with defendant in January of 2002, defendant provided him food, clothing, and shelter, as well
O’Dell testified that he engaged in sexual activities with defendant in exchange for money during and prior to the time he resided with defendant. Defendant testified that he engaged in oral and anal sex with O’Dell while he resided with defendant.
Defendant was charged with and convicted of two counts of sexual activity by a substitute parent. Defendant was given a sus pended sentence of a term of twenty-fonr to thirty-eight months, and placed on supervised probation for thirty-six months. Defendant appeals.
I.
By his first assignment of error, defendant contends the trial court erred in admitting certain photographs found in deendant’s home, as the evidence was irrelevant to the charge and improperly prejudiced defendant in placing his sexual orientation on trial. We disagree.
The State, over defendant’s objection, admitted a series of fifteen photographs that depicted a number of unidentified white males. Several of the photographs were identified as DMV photographs which could be downloaded from the Internet, some were photographs of inmates from a police lineup, and others were unidentified young, white males. Some of the photographs depicted males shirtless, some showed males in uniform and others showed males handcuffed. Defendant contends that admission of these photographs was irrelevant, immaterial, and grossly prejudicial as it improperly put defendant’s sexual orientation on trial in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 19 of the North Carolina Constitution.
Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would without the evidence.
In State v. Creech, the defendant was charged with multiple counts of indecent liberties with a minor and one count of crimes against nature. See Creech, 128 N.C. App. 592, 595, 495 S.E.2d 752, 754, disc. review denied, 348 N.C. 285, 501 S.E.2d 921 (1998). The victims in Creech were adolescent males. Id. at 593-94, 495 S.E.2d at 753. The State submitted evidence of photographs found in the defendant’s possession of male models and men in brief clothing. Id. at 596, 495 S.E.2d at 755. The defendant contended such admissions were unfairly prejudicial and that he was convicted because the jury viewed him as a homosexual after seeing the photographs. Id. The Creech Court found no prejudicial error in the introduction of the photographs, however, as defendant testified at trial as to his sexual encounters with men. Id. The Court also noted in Creech that other witnesses had referred to the defendant’s sexual orientation before the photographs were entered, and that the photographs served to corroborate the testimony of other witnesses. Id. As a result, the Court found the probative value of the photographs substantially outweighed the danger of unfair prejudice to defendant’s case. Id.
As in
Creech,
the State here contends that the photographs were offered to corroborate O’Dell’s testimony regarding the sexual nature of his relationship with defendant.
Defendant contends that the United States Supreme Court’s recent decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003), overturning its prior holding in Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 (1986), established constitutional protection for decisions of personal autonomy which extends to homosexual relationships, and therefore admission of evidence which showed defendant to be homosexual was grossly prejudicial. See Lawrence, 539 U.S. at 578, 156 L. Ed. 2d at 525-26.
However, a close review of Lawrence shows the decision specifically noted that, unlike more recent same-sex sodomy statutes, the historical record supports enforcement of sodomy statutes in situations involving adults and minors.
Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise addressed the predatory acts of an adult man against a minor girl or minor boy.
Lawrence, 539 U.S. at 569, 156 L. Ed. 2d at 519-20 (citation omitted). The Court further noted the narrow scope of its ruling by stating that, “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id. at 578, 156 L. Ed. 2d at 525. Thus, Lawrence’s recognition of autonomy and personal choice within consensual adult relationships does not offer constitutional protection to evidence presented in a charge of criminally prohibited activity with minors, as is the case sub judice. See State v. Clark, 161 N.C. App. 316, 321, 588 S.E.2d 66, 68-69 (2003). Therefore, we find no prejudicial error in the trial court’s admission of the photographs.
II.
Defendant next contends the trial court erred in denying defendant’s motions to dismiss and to set aside the verdict for insufficient evidence that defendant has assumed the position of a parent in the victim’s home. We disagree.
When reviewing challenges to the sufficiency of the evidence in criminal trials, the evidence must be reviewed in the light most favorable to the State. See State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The State receives the benefit of all reasonable inferences, and any contradictions or discrepancies are for the jury to resolve. Id.
Here, defendant was charged with the crime of sexual activity by a substitute parent.
In
State v. Bailey,
this Court recently held that in order to find a parental relationship for the purposes of
Here, evidence presented at trial showed that defendant, a law enforcement officer, was a friend of the family and initially involved in a sexual relationship with
Defendant does not dispute the other elements of the offense, namely that O’Dell, seventeen-years-old, was a minor when the offenses occurred and that defendant, twenty-three years old, was an adult. Further, defendant himself testified as to the occurrence of sexual acts with O’Dell. Therefore, as sufficient evidence of all the elements was presented to reach the jury as to the charge of sexual offense of a person in a parental role, the trial court did not err in its denial of defendant’s motions to dismiss and to set aside the verdict for insufficient evidence.
III.
Defendant raises three additional assignments of error in his brief in a section entitled Preservation Claims, but cites no authority in support of these claims. “ ‘Assignments of error not set out in the appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.’ ”
State v. Lloyd,
354 N.C. 76, 87, 552 S.E.2d 596, 607 (2001) (quoting
For the above reasons, we find the trial court did not err in admitting the challenged State’s evidence and properly concluded there was sufficient evidence to deny defendant’s motion to dismiss.
No error.
Judges WYNN and THORNBURG concur.