IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-319
Filed 2 April 2024
New Hanover County, No. 21 CRS 54343
STATE OF NORTH CAROLINA
v.
BRAYDEN DAVID WALKER
Appeal by Defendant from judgment entered 15 September 2022 by Judge
Thomas H. Lock in New Hanover County Superior Court. Heard in the Court of
Appeals 9 January 2024.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary Carla Babb, for the State.
Christopher J. Heaney, for Defendant.
WOOD, Judge.
I. Factual and Procedural History
On Halloween night, 31 October 2018, Brayden Walker (“Defendant”) gathered
with a group of friends, at least some of whom were recently graduated from the same
high school, comprised of Patrick Wise (“Wise”), Riley Crouch (“Crouch”), Corey
Webster (“Webster”), Austen Montouri (“Montouri”), and Nicholas Foutty (“Foutty”).
Throughout the night, the group consumed some combination of alcohol, marijuana,
Xanax, and LSD. STATE V. WALKER
Opinion of the Court
Prior to attending a Halloween party, the group gathered at Webster’s house
where, according to Crouch, they made a plan to find a girl, have sex with her, and
film it. Crouch previously had testified the plan was Webster’s idea, not Defendant’s,
and that nobody told Defendant about the plan. Montouri testified that there was no
formal meeting or plan and that recording the sexual acts was impromptu.
At the Halloween party, Crouch made eye contact with a girl, N.P.,1 and
started talking to her. After fifteen to twenty minutes, Crouch and N.P. agreed to
leave the party to go have sex alone at Webster’s house. As Crouch and N.P. were
leaving the party, Webster joined them. At Webster’s house, N.P. had sex with
Crouch and perhaps Webster.
The three then left Webster’s and traveled to Foutty’s house, where Walker
and the other friends were hanging out, “winding down,” and even starting to fall
asleep. When Crouch and Webster arrived, however, the music was turned up and
the friends starting partying once again. N.P. was the only female present, and
Crouch gave her Xanax.
At some point, Crouch noticed Webster and N.P. come out of the bathroom, and
N.P. began walking around Foutty’s house topless. Crouch, while Defendant was
standing next to him, began filming a video on Snapchat and shouted, “all gang on
that shit,” which Crouch testified meant everybody was engaging in sexual activity.
1 Initials are used to refer to the girl to protect her identity pursuant to N.C. R. App. P. 42(b).
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Afterward, everybody went to the back porch, and no one was engaging in sexual
activity at that time.
Some time later, Crouch noticed Defendant and Foutty engaging in sexual
activity with N.P. on a couch, and Crouch began recording once more, shouting
phrases such as, “dog game” and “we lit.” Finally, Crouch noticed once more that
Defendant and Foutty were still engaging in sexual activity with N.P. on the couch,
and he recorded a third video. Crouch did not know how long Defendant and Foutty
had been engaging in sexual activity with N.P. when he started recording. Foutty
testified at trial that he was aware he was being recorded while having sex with N.P.
Other friends in the group also recorded the sexual activity with N.P. while standing
within a few feet of her, including Wise and Montouri, who admitted at Defendant’s
trial to doing so. Each of the three videos was approximately a minute or less.
In January 2019, law enforcement officers discovered videos of the men having
sex with N.P. after they pulled over Crouch for an unrelated traffic stop pertaining to
a drug investigation and confiscated his phone. On 7 September 2021, Defendant
was indicted for two counts of first-degree sexual exploitation of a minor in violation
of N.C. Gen. Stat. § 14-190.16 (2022).
Defendant’s trial was held during the 12 September 2022 criminal session of
the New Hanover County Superior Court. The jury found Defendant guilty of both
counts. The trial court sentenced Defendant to two concurrent sentences of 72-147
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months’ imprisonment. On 20 September 2022, Defendant filed written notice of
appeal. All other relevant facts are provided as necessary in our analysis.
II. Analysis
On appeal, Defendant argues there was insufficient evidence that he had a
“purpose of producing material” portraying sexual activity with a minor. He further
argues the trial court plainly erred in failing to instruct the jury on second-degree
exploitation, allowing an officer to testify about an element of first-degree sexual
exploitation of a minor, and stating the charged offense as “sexual assault” instead of
“sexual exploitation” one time in its instructions to the jury. We address each
argument in turn.
A. Sufficiency of the Evidence as to Defendant’s Purpose
Defendant argues the trial court erred in denying his motion to dismiss both
charged counts of first-degree sexual exploitation of a minor. Specifically, Defendant
argues there was insufficient evidence demonstrating he acted for the “purpose of
producing material” portraying sexual activity with a minor because the evidence
merely demonstrated he engaged in sexual activity with a minor which happened to
be recorded. We disagree.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Our Supreme Court
has detailed the standard of review for a motion to dismiss:
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When considering a motion to dismiss for insufficiency of evidence, the court is concerned only with the legal sufficiency of the evidence to support a verdict, not its weight, which is a matter for the jury. The evidence must be considered in the light most favorable to the state; all contradictions and discrepancies therein must be resolved in the state’s favor; and the state must be given the benefit of every reasonable inference to be drawn in its favor from the evidence. There must be substantial evidence of all elements of the crime charged, and that the defendant was the perpetrator of the crime.
State v. Barnett, 368 N.C. 710, 713, 782 S.E.2d 885, 888 (2016). “Circumstantial
evidence may be utilized to overcome a motion to dismiss even when the evidence
does not rule out every hypothesis of innocence.” State v. Winkler, 368 N.C. 572, 575,
780 S.E.2d 824, 826 (2015) (quotation marks omitted).
State statute provides that a person commits first-degree sexual exploitation
of a minor if he, “knowing the character or content of the material or performance, . .
. [u]ses, employs, induces, coerces, encourages, or facilitates a minor to engage in or
assist others to engage in sexual activity . . . for the purpose of producing material
that contains a visual representation depicting this activity.” N.C. Gen. Stat. § 14-
190.16(a)(1) (emphasis added).
A defendant may be guilty of a crime by acting in concert with another who
commits a crime. As our Supreme Court has explained:
It is not . . . necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with
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another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.
State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). Acting in concert “may
be shown by circumstances accompanying the unlawful act and conduct of the
defendant subsequent thereto.” In re J.D., 376 N.C. 148, 156, 852 S.E.2d 36, 43 (2020)
(quotation marks omitted). “The communication or intent to aid, if needed, does not
have to be shown by express words of the defendant but may be inferred from his
actions and from his relation to the actual perpetrators.” State v. Sanders, 288 N.C.
285, 291, 218 S.E.2d 352, 357 (1975). “However, the mere presence of the defendant
at the scene of the crime, even though he is in sympathy with the criminal act and
does nothing to prevent its commission, does not make him guilty of the offense.” In
re J.D., 376 N.C. at 156, 852 S.E.2d at 43 (quotation marks and brackets omitted).
In the case sub judice, the trial court correctly instructed the jury regarding
the elements of the crime:
First, that the defendant used a person to engage in sexual activity for the purpose of producing material that contains a visual representation depicting this activity. Vaginal intercourse is sexual activity;
Second, that that person was a minor. A minor is an individual who is less than 18 years old and who is not married or judicially emancipated. Mistake of age is not a defense;
And third, that the defendant knew the character or content of the material.
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Over Defendant’s objection, the trial court also correctly instructed the jury on acting
in concert using the following language:
For a defendant to be guilty of a crime, it is not necessary that the defendant do all of the acts necessary to constitute the crime. If two or more persons join in a common purpose to commit first-degree sexual assault of a minor, each of them is guilty of the crime; however, a defendant is not guilty of a crime merely because the defendant is present at the scene even if the defendant may secretly approve of the crime or secretly intend to assist in its commission.
To be guilty, the defendant must aid or actively encourage the person committing the crime or in some way communicate to another person the defendant's intention to assist in its commission.
Here, whether or not the plan was specifically communicated to Defendant,
Crouch’s testimony was that at least he and possibly other members of the group had
a preconceived plan to find a girl, have sex with her, and film it. The purpose of
recording would have been clear when Crouch pulled out his phone and, in the first
recording, shouted “all gang on that shit,” announcing an intent for all or some of the
friends to engage in sexual activity with N.P. with the knowledge that Crouch was
recording. Defendant himself was standing next to Crouch in the first video, which
would have made him aware of the group’s intent to have sex with N.P. while Crouch
recorded. Defendant did not have to state expressly that he had a “purpose to produce
material” and indeed, such direct evidence is rare and unnecessary to sustain a
conviction. Winkler, 368 N.C. at 576, 780 S.E.2d at 826; Sanders, 288 N.C. at 291,
218 S.E.2d at 357.
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In the second video, N.P. can be seen performing oral sex on Foutty, who is
sitting on the couch, while Defendant is behind her engaging in, or attempting to
engage in, vaginal intercourse. Wise can be seen standing only feet away from them
with his phone out, recording them. In the second and third videos, Defendant can
be seen laughing, smiling, and looking towards his friends who are recording him,
demonstrating he was aware they were recording and was actively participating in
the group’s intent to film sexual acts with a minor.
It was not necessary for Defendant to have formed or to have been aware of a
preconceived plan to have sex with N.P. and to film it. The jury was entitled to infer
from the “circumstances accompanying the unlawful act and conduct of the defendant
subsequent thereto” that Defendant formed the necessary intent to engage in sexual
activity with N.P. for the purpose of producing the Snapchat recordings while he was
in the midst of doing so. In re J.D., 376 N.C. at 156, 852 S.E.2d at 43. Defendant was
friends with the other members of the group. Sanders, 288 N.C. at 291, 218 S.E.2d
at 357 (a defendant’s relation to the actual perpetrators is relevant in proving one
acted in concert with the perpetrators). His active participation in the sexual activity
which others recorded, as shown by his smiling, laughing, and looking towards his
friends as they recorded, demonstrates that he was more than present or merely
approving of what was happening. In re J.D., 376 N.C. at 156, 852 S.E.2d at 43. His
actions tend to show that he was “acting together with another” or others who
recorded the acts and who also had the purpose of producing the Snapchat videos
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within the meaning of N.C. Gen. Stat. § 14-190.16(a)(1). Joyner, 297 N.C. at 357, 255
S.E.2d at 395.
Therefore, even presuming Defendant himself was not the principal who
committed the crime, substantial evidence demonstrates he acted in concert with his
friends by engaging in the sexual activity which they recorded with the knowledge
they were recording it. Accordingly, the trial court did not err in denying Defendant’s
motion to dismiss.
B. No Instruction on Second-Degree Exploitation of a Minor.
Defendant argues the trial court plainly erred in failing to instruct the jury on
second-degree exploitation of a minor because it is a lesser-included offense of first-
degree sexual exploitation. Defendant argues in the alternative that even if second-
degree sexual exploitation is not a lesser-included offense, because any purported
evidence of first-degree sexual exploitation was conflicting, the trial court was
required to instruct the jury on second-degree sexual exploitation.
We review unpreserved issues pertaining to potential errors in the trial court’s
instructions to the jury for plain error. N.C. R. App. P. 10(a)(4); see also State v.
Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
Our Supreme Court has held:
[A] trial judge must instruct the jury on all lesser included offenses that are supported by the evidence, even in the absence of a special request for such an instruction, and that the failure to do so is reversible error which is not cured by a verdict finding the defendant guilty of the
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greater offense. Only when the evidence is clear and positive as to each element of the offense charged and there is no evidence supporting a lesser included offense may the judge refrain from submitting the lesser offense to the jury.
State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995) (citation and
quotation marks omitted). This Court has explained that “[i]n determining whether
one offense is a lesser included offense of another, we apply a definitional test as
opposed to a case-by-case factual test. If the lesser crime has an essential element
which is not completely covered by the greater crime, it is not a lesser included
offense.” State v. Hedgepeth, 165 N.C. App. 321, 324, 598 S.E.2d 202, 205 (2004)
(citations and quotation marks omitted).
A person commits first-degree sexual exploitation of a minor if he:
(1) Uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
(2) Permits a minor under his custody or control to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
(3) Transports or finances the transportation of a minor through or across this State with the intent that the minor engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
(4) Records, photographs, films, develops, or duplicates for sale or pecuniary gain material that contains a visual
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representation depicting a minor engaged in sexual activity.
N.C. Gen. Stat. § 14-190.16(a) (emphasis added). A person commits second-degree
sexual exploitation of a minor, however, if he “(1) [r]ecords, photographs, films,
develops, or duplicates material that contains a visual representation of a minor
engaged in sexual activity; or (2) [d]istributes, transports, exhibits, receives, sells,
purchases, exchanges, or solicits material that contains a visual representation of a
minor engaged in sexual activity.” N.C. Gen. Stat. § 14-190.17(a) (2022).
Here, Defendant’s indictment stated he “did use and coerce and encourage a
minor female” to engage in the sexual activity. (Emphasis added). Ultimately, the
trial court instructed the jury on first-degree sexual exploitation of a minor pursuant
to N.C. Gen. Stat. § 14-190.16(a)(1), specifically pertaining to the “use” of a minor for
producing material. The trial court used North Carolina Pattern Jury Instruction
(“NCPI Crim.”) 238.21, titled “First Degree Sexual Exploitation of a Minor (Using or
Employing a Minor to Engage in or Assist Others in Engaging in Sexual Activity).”
NCPI Crim. 238.21. If the trial court had instructed the jury on second-degree
exploitation of a minor, it would have used one of the two existing pattern jury
instructions for the offense. One of the instructions pertains to producing material
under N.C. Gen. Stat. § 14-190.17(a)(1), and the other pertains to circulating material
under N.C. Gen. Stat. § 14-190.17(a)(2). See NCPI Crim. 238.22–22A. Of these, only
the instruction pertaining to producing material would be relevant because there was
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no allegation that Defendant distributed, transported, exhibited, sold, purchased,
exchanged, or solicited material under N.C. Gen. Stat. § 14-190.17(a)(2). Therefore,
our analysis is limited to whether N.C. Gen. Stat. § 14-190.17(a)(1), regarding
recording, photographing, filming, developing, or duplicating material, is a lesser-
included offense of N.C. Gen. Stat. § 14-190.16(a)(1), regarding the use of a minor to
produce material.
NCPI Crim. 238.21 lists, in pertinent part, the elements of first-degree sexual
exploitation of a minor pursuant to N.C. Gen. Stat. § 14-190.16(a)(1) in the following
manner: “First, that the defendant used a person to engage in sexual activity for the
purpose of producing material that contains a visual representation depicting this
activity. . . . Second, that [the] person was a minor. And Third, that the defendant
knew the character or content of the material.” NCPI Crim. 238.21 (emphasis in
original). In contrast, NCPI Crim. 238.22 lists the elements of second-degree sexual
exploitation of a minor pursuant to N.C. Gen. Stat. § 14-190.17(a)(1) in the following
manner: “First, that the defendant recorded, photographed, filmed, developed, or
duplicated material that contains a visual representation of a minor engaged in
sexual activity. And Second, that the defendant knew the character or content of the
material.” NCPI Crim. 238.22 (emphasis in original). Therefore, N.C. Gen. Stat. §
14-190.17(a)(1) requires that there be some type of recording, or in other words, that
such illicit material actually was in existence at some point. Without an actual
recording or photograph of the sexual activity, there would be nothing to prosecute
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and no violation of N.C. Gen. Stat. § 14-190.17(a)(1). In contrast, it is possible for one
to violate N.C. Gen. Stat. § 14-190.16(a)(1) without successfully producing material.
For example, if one used a minor to engage in sexual activity for the purpose of
producing material, and afterwards learned that the phone or camera failed to record
(because, for example, the perpetrator forgot to press the “record” button or the device
malfunctioned), he still would be in violation of N.C. Gen. Stat. § 14-190.16(a)(1) for
using a minor to engage in sexual activity for the purpose of producing material,
regardless of whether or not he successfully recorded it. As Defendant’s counsel
admitted to the trial court while objecting to an instruction on accomplice testimony:
I also think that the crime can be committed without a recording actually taking place. If somebody, like I said, forg[o]t to turn the record button but you've engaged in this sexual activity for the purpose of creating a visual representation, I am not sure the recording is required. I think it goes more to the purpose of the sexual act.
The focus of first-degree sexual exploitation is the direct mistreatment of the
minor or the production of material for sale or profit: using, employing, inducing,
coercing, encouraging, or facilitating “a minor to engage in or assist others to engage
in sexual activity for a live performance or for the purpose of producing material that
contains a visual representation depicting this activity.” N.C. Gen. Stat. § 14-
190.16(a)(1). The focus of second-degree sexual exploitation, however, is the
criminalization of the actions of one who is “merely” involved in the production or
after-the-fact distribution of such material, without the requirement that the
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production of such material be for sale or pecuniary gain. Our Supreme Court made
this point when it explained:
Under the current statutory scheme, a defendant can be convicted of sexual exploitation of a minor in the event that he commits a variety of acts, with the defendant’s conduct being subject to varying degrees of punishment depending upon the nature and extent of the defendant’s involvement with the minor in question. . . . [T]he common thread running through the conduct statutorily defined as second- degree sexual offense [is] that the defendant had taken an active role in the production or distribution of child pornography without directly facilitating the involvement of the child victim in the activities depicted in the material in question. . . . [T]he acts necessary to establish the defendant’s guilt of first-degree sexual exploitation of a minor can be categorized as involving either direct facilitation of the minor’s involvement in sexual activity or the production of child pornography for sale or profit.
State v. Fletcher, 370 N.C. 313, 320–21, 807 S.E.2d 528, 534–35 (2017) (emphasis
added).
Therefore, we hold that second-degree sexual exploitation of a minor pursuant
to N.C. Gen. Stat. § 14-190.17(a)(1) is not a lesser-included offense of N.C. Gen. Stat.
§ 14-190.16(a)(1). Thus, the trial court did not plainly err in failing to instruct the
jury on second-degree sexual exploitation of a minor.
C. Officer’s Testimony Regarding an Element of the Charged Offense
Defendant next argues the trial court plainly erred in allowing an officer to
testify that N.C. Gen. Stat. § 14-190.16(a)(1) merely requires filming the sexual
activity with a minor rather than a preexisting plan to film the activity. Specifically,
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Defendant argues the officer’s testimony improperly and inaccurately instructed the
jury that Defendant merely being filmed having sex with N.P. constituted a violation
of N.C. Gen. Stat. § 14-190.16(a)(1) and misdirected the jury’s attention from the
statute’s requirement that the defendant have the intent to produce material. We
disagree.
Because Defendant did not object to the testimony at trial, we review this issue
for plain error. N.C. R. App. P. 10(a)(4); see also Gregory, 342 N.C. at 584, 467 S.E.2d
at 31.
“It is the duty of the trial court to instruct the jury on all substantial features
of a case raised by the evidence. The purpose of such a charge to the jury is to give a
clear instruction to assist the jury in an understanding of the case and in reaching a
correct verdict.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988) (citation
omitted). “The trial court, not witnesses, must define and explain the law to the jury.”
State v. Harrell, 96 N.C. App. 426, 430, 386 S.E.2d 103, 105 (1989).
Here, defense counsel cross-examined the lead detective in the case, Sam
Smith (“Detective Smith”), about a conversation he had with Crouch after he arrested
him in October 2019. On redirect, the State drew Detective Smith’s attention to
defense counsel’s questions, stating:
[Y]our answer was that Mr. Crouch said that there was -- everybody that night knew that there was an agreement that [N.P.] was going to have sex with anyone they wanted to?
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Detective Smith answered, “correct,” and the State asked him, “And you said it was
inferred. So what do you mean by that? Help us understand what you mean by that.
He didn’t exactly -- he didn’t specifically use the word ‘plan’?” The State asked,
“Explain what you meant by ‘inferred’?” Detective Smith answered, “That there were
other ways to say that there’s a plan without saying ‘This is the plan.’ ” The State
then asked, “And you also said on cross-examination that you did not ask Riley
Crouch any questions about filming that night?” Detective Smith answered,
“Correct,” and finally, the State asked him, “Why did you not ask Riley Crouch any
questions about the filming of the sexual activity?” Detective Smith answered,
“Because a violation of the statute doesn’t require like the -- one, as I mentioned
earlier, it was clearly all filmed and the statute doesn’t require a plan to film it, just
that it’s filmed.” (Emphasis added).
The State’s questions on redirect and Detective Smith’s responses were clearly
aimed at developing clarifying testimony about his responses to defense counsel on
cross-examination and his reasoning and motive for how he questioned Crouch after
his arrest. Detective Smith simply answered why he did not feel compelled to
question Crouch regarding the filming of the sexual activity, and he gave a logical,
albeit legally incorrect, response. Defense counsel then had an opportunity for
recross-examination, after which the trial proceeded. Therefore, Detective Smith’s
testimony made sense in context and did not constitute improper instructions to the
jury. The trial court properly instructed the jury on the elements of the charged
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crime. Accordingly, the trial court did not plainly err when it permitted Detective
Smith to testify as he did.
D. Trial Court’s Accidental Reference to the Charged Crime as Sexual
Assault
Defendant next argues the trial court’s reference to the charged crime of first-
degree sexual exploitation of a minor as “sexual assault” during its instruction to the
jury on acting in concert constituted prejudicial error because it shifted the jury’s
attention from the specific intent requirement and to the sexual activity itself. We
Defendant cites State v. Lee for the proposition that any objection to an
instruction preserves any alleged error with that instruction for appellate review.
370 N.C. 671, 811 S.E.2d 563 (2018). The court in Lee specifically stated:
When a trial court agrees to give a requested pattern instruction, an erroneous deviation from that instruction is preserved for appellate review without further request or objection. A request for an instruction at the charge conference is sufficient compliance with the rule to warrant our full review on appeal where the requested instruction is subsequently promised but not given, notwithstanding any failure to bring the error to the trial judge’s attention at the end of the instructions.
370 N.C. at 676, 811 S.E.2d at 567 (brackets omitted) (emphasis added). Here,
however, Defendant did not request the instruction; rather, he objected to it. The
trial court inadvertently referred to the charged crime as sexual assault during its
instruction on acting in concert:
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For a defendant to be guilty of a crime, it is not necessary that the defendant do all of the acts necessary to constitute the crime. If two or more persons join in a common purpose to commit first-degree sexual assault of a minor, each of them is guilty of the crime.
(Emphasis added). Defendant objected to the trial court’s proposed instruction on
acting in concert: “I mean, I don’t think the acting in concert is appropriate.”
Defendant, however, never objected when the trial court referred to the charged crime
as sexual assault. Therefore, the rule stated by the court in Lee that any alleged error
regarding a requested jury instruction is preserved as long as a Defendant at some
point during the trial objected to the instruction does not apply here to preserve the
issue for full appellate review. Accordingly, we review the issue for plain error. N.C.
R. App. P. 10(a)(4); see also Gregory, 342 N.C. at 584, 467 S.E.2d at 31.
The charge of the court must be read as a whole[,] in the same connected way that the judge is supposed to have intended it and the jury to have considered it. It will be construed contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct. If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.
State v. Hooks, 353 N.C. 629, 634, 548 S.E.2d 501, 505 (2001) (citation, ellipses, and
brackets omitted).
Although the trial court misstated the charged crime once in its jury
instruction regarding acting in concert, the trial court properly instructed the jury on
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the elements of the first count of first-degree sexual exploitation of a minor. It also
correctly stated the elements of the charged crime for the second count of first-degree
sexual exploitation of a minor. Moreover, during its second instruction to the jury on
acting in concert, the trial court correctly named the charged crime as “first-degree
sexual exploitation of a minor.” The jury, therefore, would have been aware of the
correctly charged crime. A one-time, inadvertent misnomer, otherwise correctly
stated three times, would not have confused the jury and does not constitute plain
error in a jury instruction. Accordingly, read as a whole, the trial court correctly
instructed the jury regarding the charged crime, notwithstanding a single misnaming
of the offense. Hooks, 353 N.C. at 634, 548 S.E.2d at 505.
III. Conclusion
In summary, we hold there was sufficient evidence for the jury to convict
Defendant of first-degree sexual exploitation of a minor. The trial court did not
plainly err in failing to instruct on second-degree sexual exploitation of a minor,
allowing the officer’s testimony explaining his actions based on what he believed was
an element of the crime, or inadvertently misnaming the charged offense once in its
jury instructions, when read as a whole, the trial court otherwise correctly instructed
the jury. We hold Defendant received a fair trial free from error.
NO ERROR.
Judges FLOOD and STADING concur.
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