State v. Parks

NO. COA13-1283

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Wilson County
Nos. 12 CRS 3002-3
GREGORY PARKS

Appeal by defendant from judgments entered 11 February 2013

by Judge Quentin T. Sumner in Wilson County Superior Court.

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State.

M. Alexander Charns for defendant-appellant.

McCULLOUGH, Judge.

Defendant Gregory Kent Parks appeals the denial of his

motion to dismiss two counts of participating in the

prostitution of a minor. Where the State failed to produce

substantial, independent corroborative evidence to support the

facts underlying defendant’s extrajudicial statement, in

violation of the corpus delicti rule, we reverse defendant’s

challenged convictions.

I. Background
 -2-
On 10 September 2012, defendant was indicted on two counts

of first-degree sexual offense in violation of N.C. Gen. Stat. §

14-27.4 and attaining habitual felon status. On 14 January

2013, defendant was charged by superseding indictment with two

counts of participating in the prostitution of a minor in

violation of N.C. Gen. Stat. § 14-190.19(a).

On 16 November 2013, Wilson County Superior Court Judge

Milton F. Fitch entered an order, sua sponte, which provided the

following:

Upon review, the Court determined that
in order to prevent any further delay of the
Defendant’s cases and guarantee Defendant’s
right to a speedy trial that the SBI
laboratory expedite and conduct any and all
testing of any materials submitted and held
relating to these cases.

This Court hereby orders that the N.C.
SBI laboratory expedite and perform DNA
analysis and any other requested testing on
any and all materials submitted to and held
by the N.C. SBI Laboratory in these cases;
and a laboratory report of the results to
these ordered analysis be returned to the
submitting parties and to District
Attorney’s Office of the Seventh
Prosecutorial District no later than
December 21, 2012.

Prior to trial, on 1 February 2013, defendant filed a

motion to dismiss the charges against him for failure by the

State to test or properly preserve DNA specimens in his case and
 -3-
for failure to follow a 16 November 2012 order requiring the SBI

laboratory to conduct any and all testing of any materials

submitted and held relating to defendant’s case. The trial

court denied this motion.

Defendant’s trial commenced at the 4 February 2013 criminal

session of Wilson County Superior Court. A.J. testified that on

the evening of 15 June 2012, she was at home with her friend,

D.T.1 D.T. was on the phone with defendant. D.T. told A.J. that

defendant “was going to give her some marijuana for free if I

walked down there with her, so I walked with her down the

street.” Defendant lived “three houses down, right up the

street.” When A.J. and D.T. arrived at defendant’s house,

defendant answered the door and said, “[w]ill you come in?”

After they walked inside, defendant closed the door behind them.

A.J. testified to the following:

Well, we got in the home, there was an older
man [(defendant’s father)] in a wheelchair
in there, and he said, “Well, y’all can walk
on back here, follow me to my room.” He
said, “I’m not going to give you the
marijuana out here.” [So] I followed [D.T.]
and [defendant] back to his room. And when
we got in the bedroom, he pulled out a
knife.

1
Because A.J. and D.T. were minors during the commission of the
alleged crimes, both seventeen years old in 15 June 2012,
initials are used to protect their identities.
 -4-
Defendant had closed his bedroom door. Defendant put the knife

to A.J.’s neck and said “he was going to kill me if I didn’t

take my clothes off. . . . He told both of us to take our

clothes off before he killed us.”

A.J. testified that defendant went into an adjoining

bathroom, returned with pills, and told the girls “to take the

pills or he was going to kill us.” A.J. took one pill.

After [defendant] got the pills and made us
take them, he told us -– well, we were lying
on the bed, and he just got on top of us -–
on me first, and he started licking me on my
vagina, and then he went over to [D.T.], and
he started licking on her vagina, and then
he told me to just wait until he finished
her.

Defendant went back and forth between A.J. and D.T. until A.J.

stabbed him with a scalpel in the head. A.J. testified that she

had brought a scalpel from her house and kept it in her coat

pocket. After stabbing defendant, A.J. and D.T. ran out of the

bedroom and unsuccessfully attempted to exit the house through a

locked side door. Defendant’s father was telling defendant “to

stop and to let us go and that he was tired of him doing it.”

While A.J. and D.T. were standing by the back door, defendant

stated, “[w]ell, you made my dad mad, I’m going to kill you[.]”

Defendant’s father followed A.J. and D.T. back to the bedroom
 -5-
“to get [our] clothes.” After they put their clothes back on,

defendant opened the door and A.J. and D.T. went home.

A.J. called the police. A.J. initially reported to police

that she and D.T. were on their way to McDonald’s when defendant

“grabbed” them, pulled out a knife, forced them to take drugs

and pills, and sexually assaulted them. She admitted at trial

that when she first spoke with police, she did not “tell the

truth at first, because I was afraid that I might get in trouble

because I’m going to get some marijuana with a friend.” In

addition, A.J. testified that defendant did not solicit sex in

exchange for money or marijuana.

D.T. testified that on the evening of 15 June 2012, she was

at A.J.’s house when defendant called her. Defendant said “he

was going to give [A.J.] a bag of some weed[.]” D.T. testified

that there was no agreement between defendant and herself for

sex, an exchange of marijuana for sex, or an exchange of money

for sex. A.J. and D.T. walked to defendant’s house. Defendant

took them into his bedroom. The three sat on his bed and

defendant took out pills from his pocket. Defendant then

proceeded to pull out a pocketknife and stated, “I’m crazy, I’ve

been doing this for years, and y’all -– y’all take off y’all’s
 -6-
clothes now. I ain’t playing with y’all.” D.T. used the

bathroom that was adjoined to the bedroom and called the police.

Defendant forced D.T. and A.J. to take their clothes off

and lay on the bed. Defendant put his “tongue in [their]

vagina[s].” D.T. grabbed a scalpel from a pocketbook, passed it

to A.J., and A.J. stabbed defendant in the back of his head.

A.J. and D.T. ran out of the bedroom, but encountered a locked

door. Defendant’s father told defendant, “Gregory, just let

them go, just let them go.” Defendant began shouting, “[d]addy,

shut up. Y’all going to make my daddy have a heart attack. You

shut up.” Defendant’s father then followed A.J. and D.T. back

to defendant’s bedroom and they put on their clothes.

Afterward, A.J. and D.T. left defendant’s home, returned to

A.J.’s house, and called the police.

D.T. admitted that she lied in her first statement to the

police when she reported the following:

Well, the first time I told -– I told that
we had went -– we was on the way to
McDonald’s and he had snatched us up; which,
it was a lie. I knew it was a lie when we
told y’all that we was going to McDonald’s
and stuff and he snatched us up. That ain’t
it. It really was that we had went to go do
some weed, like, he had called the phone and
said he was gonna give us [weed.]
 -7-
Detective Michael Thomas Harrell of the Wilson Police

Department testified that on the morning of 16 June 2012,

defendant gave the following statement to police:

On Wednesday, I called [A.J.] for the first
time. I see her around the neighborhood and
say, ‘Hey,’ when I see her. She had some
drama on Wednesday, so I called her to see
what happened. We talked for about an hour
before she asked me if I could get any weed.
I told her I might could get some weed. She
said she would get back up with me on
Friday. I tried to call her . . . She
called me back, and I told her I had
something for her. She asked if I had any
money. I said, ‘Yeah, I got some money.’
She said she was waiting on her friend. She
called me back about three times and asked
which house to come to. . . . [A.J.] asked,
and said, “You are supposed to have
something waiting on me.” I said, “Why, did
you bring something?” We went back to my
room and I asked what they were working
with. They both took their clothes off.
[A.J.] asked about the money, again, and I
played it off, because I didn’t have much
money for them. They told me to get them
going, so I was touching on them and eating
them out, switching back and forth. When I
went back down on [D.T.], [A.J.] hit me in
the back of the head, and I said, ‘What the
f***?’ She went for the door. I think she
went in the drawer where I had pointed to
earlier when I said I got some money. I
don’t know if they set me up or not.

On 11 February 2012, a jury found defendant guilty of both

counts of participating in the prostitution of a minor and not

guilty of both charges of first-degree sexual offense.
 -8-
Defendant pled guilty to having attained habitual felon status.

Defendant was sentenced to two consecutive terms of 127 to 165

months. Defendant appeals.

II. Discussion

On appeal, defendant argues that the trial court erred by

(A) denying his motion to dismiss two counts of participating in

the prostitution of a minor based on insufficiency of the

evidence and based on a fatal variance between the indictments,

jury charge, and proof at trial; (B) admitting evidence in

violation of Rule 404(b) of the North Carolina Rules of

Evidence; (C) violating his constitutional rights under the

Sixth Amendment of the United States Constitution; (D) denying

his motion to dismiss based on a failure to obey a court order

to test evidence; and (E) allowing amendment of the superseding

indictments.

A. Motion to Dismiss the Charges of Participating in the

Prostitution of a Minor

Defendant argues that the trial court erred by denying his

motion to dismiss the charges of participating in the

prostitution of a minor charges for insufficiency of the

evidence. Specifically, defendant contends that the State

failed to present sufficient evidence that defendant “patronized
 -9-
a minor prostitute.” Defendant argues that the State

erroneously relied solely on defendant’s extrajudicial statement

to prove his guilt, without providing other corroborating

evidence in violation of the corpus delicti rule. We agree.

Before reaching the merits of defendant’s arguments, we

address the State’s contention that defendant failed to raise

the issue of a violation of the corpus delicti rule at trial and

that, as a result, he has failed to preserve this issue for

appellate review. Pursuant to Rule 10(a)(1) of the North

Carolina Rules of Appellate Procedure, we note that in order to

preserve an issue for appellate review,

a party must have presented to the trial
court a timely request, objection, or
motion, stating the specific grounds for the
ruling the party desired the court to make
if the specific grounds were not apparent
from the context. It is also necessary for
the complaining party to obtain a ruling
upon the party’s request, objection, or
motion.

N.C. R. App. P. Rule 10(a)(1) (2013). However, after thoroughly

reviewing the transcript of defendant’s trial, we hold that

although defense counsel did not use the exact words “corpus

delicti” in arguing that the trial court grant defendant’s

motion to dismiss the charges of promoting the prostitution of a

minor based on the insufficiency of the evidence, the substance
 -10-
of the argument was sufficiently presented to the trial court.

Accordingly, we proceed to the merits of defendant’s arguments.

See State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682

(2003) (holding that “[a]lthough defendant did not raise his

double jeopardy argument using those exact words, the substance

of the argument was sufficiently presented, and more

importantly, addressed by the trial court in finalizing its

instructions to the jury”).

When reviewing a defendant’s motion to
dismiss a charge on the basis of
insufficiency of the evidence, this Court
determines whether the State presented
substantial evidence in support of each
element of the charged offense. Substantial
evidence is relevant evidence that a
reasonable person might accept as adequate,
or would consider necessary to support a
particular conclusion.

State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012)

(citation omitted). “This Court reviews the trial court’s

denial of a motion to dismiss de novo and views the evidence in

the light most favorable to the State, giving the State every

reasonable inference therefrom, and resolving any contradictions

or discrepancies in the State’s favor.” State v. Miles, __ N.C.

App. __, __, 730 S.E.2d 816, 822 (2012) (citation omitted).
 -11-
In light of these principles, we consider the elements of

the offense of participating in the prostitution of a minor.

Pursuant to N.C. Gen. Stat. § 14-190.192,

[a] person commits the offense of
participating in the prostitution of a minor
if he is not a minor and he patronizes a
minor prostitute. As used in this section,
“patronizing a minor prostitute” means:
(1) Soliciting or requesting a minor
to participate in prostitution;
(2) Paying or agreeing to pay a minor,
either directly or through the
minor’s agent, to participate in
prostitution; or
(3) Paying a minor, or the minor’s
agent, for having participated in
prostitution, pursuant to a prior
agreement.

N.C. Gen. Stat. § 14-190.19 (2011).

Defendant relies on the North Carolina Supreme Court’s

holding in State v. Smith, 362 N.C. 583, 669 S.E.2d 299 (2008).

In Smith, the issue before the Court was whether there was

substantial corroborating evidence independent of the

defendant’s extrajudicial confession sufficient to sustain a

conviction for first-degree sexual offense. Id. at 585, 669

S.E.2d at 301. The Court noted that in order to find a

2
We note that, effective 1 October 2013, N.C. Gen. Stat. § 14-
190.19 was repealed by Session Laws 2013-368, s. 4. The current
statute is applicable to offenses committed on or after 1
October 2013. However, because the events of this case took
place on 15 June 2012, the former statute applies.
 -12-
defendant guilty of first-degree sexual offense, the State must

prove, beyond a reasonable doubt, that

(1) the defendant engaged in a sexual act
with a victim who is under the age of
thirteen, and (2) the defendant is at least
twelve years old and at least four years
older than the victim. A sexual act, as
defined by statute, means “cunnilingus,
fellatio, analingus, or anal intercourse,
but does not include vaginal intercourse.
Sexual act also means the penetration,
however slight, by any object into the
genital or anal opening of another person’s
body[.]” Fellatio is defined as “any
touching of the male sexual organ by the
lips, tongue, or mouth of another person.”

Id. at 592-93, 669 S.E.2d at 306 (citations omitted). The Smith

Court stated that “[u]nder the corpus delicti3 rule, the State

may not rely solely on the extrajudicial confession of a

defendant, but must produce substantial independent

corroborative evidence that supports the facts underlying the

confession.” Id. at 588, 669 S.E.2d at 303 (citing State v.

Parker, 315 N.C. 222, 337 S.E.2d 487 (1985)).

The Smith victim “twice denied that a first-degree sexual

offense ever occurred.” Id. at 593, 669 S.E.2d at 306. In

reviewing the defendant’s extrajudicial confession, the

defendant provided that the victim “unzipped his pants, removed

3
“The term corpus delicti literally means ‘body of the crime.’”
State v. Smith, 362 N.C. 583, 589, 669 S.E.2d 299, 304 (2008)
(citations omitted).
 -13-
his penis, and attempted fellatio, but that he could not achieve

an erection because of his alcohol consumption.” Id. (emphasis

in original). The Smith Court stated that taking into

consideration the defendant’s extrajudicial confession alone, “a

jury could not determine beyond a reasonable doubt that [the

victim’s] mouth ever made contact with [the] defendant’s penis,

which is a required element in a sexual offense prosecution.”

Id. at 593-94, 669 S.E.2d at 306.

The State argued that several pieces of corroborative

evidence, along with the defendant’s extrajudicial confession,

were sufficient under the corpus delicti rule to sustain a

conviction for first-degree sexual offense, but the Smith Court

disagreed. The State first argued that the defendant’s trial

testimony that he felt “something” touch his penis was strongly

corroborative, but the Court held that, “[l]ike the

extrajudicial confession, this statement is also vague; it is

not clear from the record what this ‘something’ was.” Id. at

594, 669 S.E.2d at 307. Next, the State argued that defendant’s

statement to the victim’s brother that “he had let [the victim]

give him oral sex” was strongly corroborative. The Smith Court

held that the corroborating evidence supporting the defendant’s

extrajudicial confession must be substantial and independent,
 -14-
and that this statement was not independent because it was

derived immediately following defendant’s extrajudicial

confession elicited by a detective. Id. Lastly, the State

argued that several pieces of “opportunity evidence” – testimony

from both the defendant and the victim that they were alone

together in a bedroom as well as testimony from the victim’s

brother that he left the victim with the defendant – were

sufficient to sustain the defendant’s conviction. The Smith

Court held that because “no independent proof, such as physical

evidence or witness testimony, of any crime [could] be shown[,]”

the opportunity evidence was not strong enough to establish the

corpus delicti of first-degree sexual offense. Id. at 595-96,

669 S.E.2d at 307-308. Based on the foregoing, the Smith Court

held that the State “ha[d] not met its burden [of providing]

strong corroboration evidence relevant to the essential facts

and circumstances of [the] defendant’s extrajudicial confession”

and reversed the defendant’s conviction. Id. at 596, 669 S.E.2d

at 308.

Similar to the facts found in Smith, in the case sub

judice, although A.J. and D.T. gave several differing accounts

of the events that took place on the evening of 15 June 2012,

both A.J. and D.T. testified at trial that defendant did not
 -15-
solicit sex from them in exchange for money or marijuana.

Furthermore, we find defendant’s extrajudicial statement

regarding an alleged exchange of sex for money or marijuana with

A.J. and D.T. to be vague. Defendant’s extrajudicial statement

provided the following, in pertinent part:

[A.J.] asked if I had any money. I said,
‘Yeah, I got some money.’ She said she was
waiting on her friend. She called me back
about three times and asked which house to
come to. . . . [A.J.] asked, and said, “You
are supposed to have something waiting on
me.” I said, “Why, did you bring
something?” We went back to my room and I
asked what they were working with. They
both took their clothes off. [A.J.] asked
about the money, again, and I played it off,
because I didn’t have much money for them.

The State argues that “an agreement to exchange sex for

marijuana might be inferred even without Defendant’s statements”

and that other independent evidence corroborated defendant’s

extrajudicial confession. However, after careful review, we are

not persuaded. The record is insufficient to strongly

corroborate the essential element that defendant patronized a

minor prostitute in order to convict defendant of participating

in the prostitution of a minor. Because the State did not meet

its burden in violation of the corpus delicti rule, we hold that

the trial court erred by failing to grant defendant’s motion to
 -16-
dismiss. Accordingly, we reverse defendant’s conviction of two

counts of participating in the prostitution of a minor.

Based on the disposition of defendant’s first argument, it

is unnecessary for us to address his remaining arguments on

appeal.

Reversed.

Judges HUNTER, Robert C., and GEER concur.