               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-1239

                                  Filed: 19 July 2016

Randolph County, Nos. 10 CRS 50216-17

STATE OF NORTH CAROLINA

              v.

CLAYTON MICHAEL JONES


      Appeal by defendant from judgment entered 15 May 2015 by Judge John O.

Craig, III in Randolph County Superior Court. Heard in the Court of Appeals 30

March 2016.


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

      Clifford Clendenin & O’Hale, LLP, by Daniel A. Harris and Locke T. Clifford,
      for defendant-appellant.


      DAVIS, Judge.


      Clayton Michael Jones (“Defendant”) appeals from his convictions for two

counts of second-degree sexual exploitation of a minor. On appeal, he contends that

the trial court (1) lacked the authority to grant his request for a waiver of his right to

a trial by jury; (2) improperly considered inadmissible evidence that had been

suppressed before trial; (3) erred in denying his motion to dismiss the charges against

him due to a fatal variance between the date of the offenses listed on the indictments

and the date established by the evidence at trial; and (4) improperly denied his
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                                     Opinion of the Court



motions to dismiss. After careful review, we conclude that Defendant received a fair

trial free from prejudicial error.

                                Factual Background

      The State presented evidence at trial tending to establish the following facts:

On 18 October 2009, images of child pornography were downloaded to a computer

later established as belonging to Defendant. The street address associated with the

IP address for the computer was the home of Defendant’s parents on Osborn Mill

Road in Randolph County, North Carolina.

      The images were downloaded via a “peer-to-peer” file sharing software

program known as “Gnutella,” which — by means of a download engine — allows its

users to download image files from other users of the program. Gnutella utilizes a

search function where users type in a description of the image file for which they are

searching using descriptive terms and language. A list of results is then displayed

from which users may select the files they want to download. Those files are then

downloaded directly onto their computer.

      Detective Bernie Maness (“Detective Maness”) with the Randolph County

Sheriff’s Office detected the images being downloaded to the computer’s IP address

through a software program used by law enforcement officials called “Peer Spectre,”

which monitors downloads occurring on various peer-to-peer software platforms,

including Gnutella. The images downloaded to the IP address were flagged as known



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child pornography, and Detective Maness procured a search warrant for the Osborn

Mill Road address.

      On 17 December 2009, Detective Maness, along with Detective Jason Chabot

(“Detective Chabot”) and several deputies, went to the Osborn Mill Road address to

execute the search warrant. Defendant was not present when the detectives arrived,

but his parents were at home and let the detectives inside.

      Upon entering Defendant’s bedroom, Detectives Maness and Chabot observed

a white Apple MacBook laptop (the “MacBook”) partially concealed underneath

Defendant’s mattress.    The detectives seized the MacBook and continued their

search.

      While the search was still ongoing, Defendant returned home and encountered

the detectives. Detective Maness identified himself to Defendant and informed him

that he and Detective Chabot were executing a search warrant for child pornography.

After hearing Detective Maness make this statement, Defendant “hung his head.”

      Detective Maness subsequently conducted a forensic examination of the

MacBook using specialized software that allows law enforcement officers to view, but

not alter, the contents of computers.    During his examination of the MacBook,

Detective Maness noted that there was only one user — “Clay” — listed on the laptop

login screen. Contained in the MacBook’s “trash bin” — where deleted files are stored




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prior to their permanent deletion — were two image files depicting child pornography

that had been downloaded from the Gnutella software program.

      On 12 July 2010, Defendant was indicted on two counts of second-degree sexual

exploitation of a minor. On 7 March 2011, Defendant moved to suppress certain

statements he had made to Detective Maness outside his parents’ house during the

execution of the search warrant in which he confessed that he had, in fact,

downloaded the child pornography to his MacBook from the Gnutella program. A

hearing on Defendant’s motion to suppress was held on 21 March 2011 before the

Honorable John O. Craig, III. At the hearing, Defendant argued that the statements

he provided to Detective Maness had been coerced and were therefore involuntary.

On 18 January 2012, the trial court entered an order granting Defendant’s motion

and suppressing the challenged statements.

      On 11 May 2015, a jury trial was scheduled before Judge Craig in Randolph

County Superior Court.     Shortly after the case was called for trial, Defendant

informed the court that he was voluntarily waiving his right to a jury trial pursuant

to Article I, § 24 of the North Carolina Constitution and N.C. Gen. Stat. § 15A-1201.

A bench trial then took place with Judge Craig presiding. At the conclusion of the

trial, Judge Craig found Defendant guilty of both charges. The trial court sentenced

Defendant to 19-32 months imprisonment, suspended the sentence, and placed




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Defendant on 36 months of supervised probation. Defendant gave oral notice of

appeal in open court.

                                       Analysis

I. Waiver of Right to Jury Trial

       Defendant first argues that the trial court lacked the authority to allow him to

waive his right to a trial by jury. We disagree.

       Effective 1 December 2014, the North Carolina Constitution was amended by

the citizens of North Carolina to allow criminal defendants to waive their right to a

trial by jury in non-capital cases.     Article I, Section 24 of the North Carolina

Constitution now reads as follows:

              No person shall be convicted of any crime but by the
              unanimous verdict of a jury in open court, except that a
              person accused of any criminal offense for which the State
              is not seeking a sentence of death in superior court may, in
              writing or on the record in the court and with the consent
              of the trial judge, waive jury trial, subject to procedures
              prescribed by the General Assembly.           The General
              Assembly may, however, provide for other means of trial
              for misdemeanors, with the right of appeal for trial de novo.

N.C. Const. art. I, § 24.

       This provision of our Constitution was ratified as a result of legislation passed

by the General Assembly calling for the amendment to be submitted to North

Carolina voters for approval. Chapter 300 of the 2013 North Carolina Session Laws,

which authorized the ballot measure, provided that “[i]f the constitutional



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amendment proposed in Section 1 is approved by the voters, Section 4 of this act

becomes effective December 1, 2014, and applies to criminal cases arraigned in

superior court on or after that date.” 2013 N.C. Sess. Laws 821, 822, ch. 300, § 5

(emphasis added). Section 4 reads, in pertinent part, as follows:

             (b) A defendant accused of any criminal offense for which
             the State is not seeking a sentence of death in superior
             court may, knowingly and voluntarily, in writing or on the
             record in the court and with the consent of the trial judge,
             waive the right to trial by jury. When a defendant waives
             the right to trial by jury under this section, the jury is
             dispensed with as provided by law, and the whole matter
             of law and fact shall be heard and judgment given by the
             court.

2013 N.C. Sess. Laws 821, 822, ch. 300, § 4(b). This provision was subsequently

codified in N.C. Gen. Stat. § 15A-1201.

      Defendant contends that because he should have been arraigned shortly after

he was indicted on 12 July 2010 — well before the 1 December 2014 effective date of

the constitutional amendment and the accompanying session law — the trial court

lacked the authority to grant his request for a waiver of his right to a trial by jury.

      N.C. Gen. Stat. § 15A-941 provides, in pertinent part, as follows:

             (a) Arraignment consists of bringing a defendant in open
             court or as provided in subsection (b) of this section before
             a judge having jurisdiction to try the offense, advising him
             of the charges pending against him, and directing him to
             plead. The prosecutor must read the charges or fairly
             summarize them to the defendant. If the defendant fails to
             plead, the court must record that fact, and the defendant
             must be tried as if he had pleaded not guilty.


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             ....

             (d) A defendant will be arraigned in accordance with this
             section only if the defendant files a written request with
             the clerk of superior court for an arraignment not later
             than 21 days after service of the bill of indictment. If a bill
             of indictment is not required to be served pursuant to G.S.
             15A-630, then the written request for arraignment must be
             filed not later than 21 days from the date of the return of
             the indictment as a true bill. Upon the return of the
             indictment as a true bill, the court must immediately cause
             notice of the 21-day time limit within which the defendant
             may request an arraignment to be mailed or otherwise
             given to the defendant and to the defendant’s counsel of
             record, if any. If the defendant does not file a written
             request for arraignment, then the court shall enter a not
             guilty plea on behalf of the defendant.

N.C. Gen. Stat. § 15A-941(a), (d) (2015) (emphasis added).

      Thus, N.C. Gen. Stat. § 15A-941 provides a formal mechanism for

arraignments that a criminal defendant may elect to invoke. However, it is not

uncommon for a defendant to forego the procedure set out in § 15A-941 and for his

arraignment to take place more informally.

      Such was the case here. Defendant never requested a formal arraignment

pursuant to N.C. Gen. Stat. § 15A-941. Thus, his right to be formally arraigned by

means of this statutory procedure was deemed waived on or about 2 August 2010 —

21 days after he was indicted. Defendant’s arraignment did not occur until the first

day of his trial on 11 May 2015.

             MR. ROSENTRATER: Nothing further as far as pretrial


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              motions. Just for the sake of the record, let’s go ahead and
              identify where we are.
                     This is page 2 of the trial section of the calendar, Mr.
              Clayton Jones, charged with three [sic] counts of second-
              degree exploitation of a minor. I suppose technically I
              would move to join those.

              MR. ROOSE: No objection.

              THE COURT: Motion granted.

              MR. ROSENTRATER: And to those charges, Mr. Roose,
              how does your client plead?

              MR. ROOSE: The Defendant pleads not guilty.

       At no time did Defendant object in the trial court to the absence of a more

formal or earlier arraignment. Instead, he simply pled not guilty at which point the

trial proceeded. Moreover, at oral argument in this Court counsel for Defendant

conceded that Defendant was, in fact, arraigned on 11 May 2015 and has not raised

in this appeal any argument suggesting that the 11 May 2015 arraignment was in

any way legally deficient. Therefore, because Defendant’s arraignment occurred after

the effective date of the constitutional amendment and accompanying session law,

the trial court was constitutionally authorized to accept Defendant’s waiver of his

right to a jury trial.

II. Consideration by Trial Court of Inadmissible Evidence

       Defendant next asserts that because Judge Craig served both as the factfinder

at trial and as the judge who ruled on Defendant’s pre-trial motion in limine, he was



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necessarily aware of Defendant’s involuntary confession to downloading the images

at issue. Therefore, Defendant argues, Judge Craig’s ability to serve as a fair and

impartial factfinder at Defendant’s trial was “tainted” by his knowledge of

Defendant’s suppressed statements.

       It is important to note that Defendant chose to waive his right to a trial by jury

and proceed with a bench trial. He did so with full knowledge that the same trial

judge who had ruled on his motion in limine would also serve as the judge at his

bench trial. Therefore, Defendant cannot now argue on appeal that he was prejudiced

as a result of his own strategic decision to waive his right to a trial by jury and allow

Judge Craig to serve as the factfinder at his bench trial. See State v. Cook, 218 N.C.

App. 245, 249, 721 S.E.2d 741, 745 (“[A] defendant who invites error has waived his

right to all appellate review concerning the invited error, including plain error

review.” (citation and quotation marks omitted)), appeal dismissed and disc. review

denied, __ N.C. __, 724 S.E.2d 917 (2012).1

       Furthermore, Defendant’s argument ignores the well-established principle

that “the trial court is presumed to disregard incompetent evidence in making its

decisions as a finder of fact.” State v. Jones, 186 N.C. App. 405, 411, 651 S.E.2d 589,

593 (2007); see also In re Cline, 230 N.C. App. 11, 14, 749 S.E.2d 91, 94 (2013) (“Where



       1  We note that the record is devoid of any indication that Defendant expressed concern in the
trial court over Judge Craig serving as his trial judge after having also ruled on Defendant’s motion
in limine.

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the matter was heard without a jury, it is presumed that the trial court considered

only admissible evidence[.]”), disc. review denied, 367 N.C. 293, 753 S.E.2d 781, cert.

denied, __ U.S. __, 190 L.Ed.2d 100 (2014).

      Because trial judges are presumed to ignore inadmissible evidence when they

serve as the finder of fact in a bench trial, no prejudice exists simply by virtue of the

fact that such evidence was made known to them absent a showing by the defendant

of facts tending to rebut this presumption. Here, Defendant has failed to make any

such showing. Therefore, Defendant’s argument on this issue is meritless.

III. Fatal Variance

      Defendant next argues that a fatal variance existed between his indictments

and the evidence presented at trial.        Specifically, he contends that while the

indictments stated that he received the pornographic images on 17 December 2009,

the evidence at trial established the date of receipt as 18 October 2009. As a result,

he asserts he was prejudiced.

             Pursuant to N.C. Gen. Stat. § 14-190.17, a person commits
             second-degree sexual exploitation of a minor when,
             knowing the nature or content of the material, he

                    (1) Records, photographs, films, develops, or
                    duplicates material that contains a visual
                    representation of a minor engaged in sexual activity;
                    or

                    (2) Distributes, transports, exhibits, receives, sells,
                    purchases, exchanges, or solicits material that
                    contains a visual representation of a minor engaged


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                    in sexual activity.

State v. Williams, 232 N.C. App. 152, 156, 754 S.E.2d 418, 421 (citation omitted and

emphasis added), appeal dismissed and disc. review denied, 367 N.C. 784, 766 S.E.2d

846 (2014).

      Defendant argues that the inconsistency between the date of his purported

receipt of the images as listed in the indictments and the date established by the

evidence at trial constitutes a fatal variance, contending that time is an essential

element of the offense of second-degree sexual exploitation of a minor.

                     An indictment must include a designated date or
              period of time within which the alleged offense occurred.
              However, this Court has recognized that a judgment should
              not be reversed when the indictment lists an incorrect date
              or time if time was not of the essence of the offense, and the
              error or omission did not mislead the defendant to his
              prejudice. Generally, the time listed in the indictment is
              not an essential element of the crime charged. This general
              rule, which is intended to prevent a defendant who does not
              rely on time as a defense from using a discrepancy between
              the time named in the bill and the time shown by the
              evidence for the State, cannot be used to ensnare a
              defendant and thereby deprive him of an opportunity to
              adequately present his defense.

                     We have held that a variance as to time becomes
              material and of the essence when it deprives a defendant
              of an opportunity to adequately present his defense.

State v. Stewart, 353 N.C. 516, 517-18, 546 S.E.2d 568, 569 (2001) (internal citations,

quotation marks, brackets, and ellipses omitted).




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        In support of his position, Defendant relies upon State v. Riffe, 191 N.C. App.

86, 661 S.E.2d 899 (2008) — a case involving multiple counts of third-degree sexual

exploitation of a minor.2 In Riffe, the date of the offenses contained in the indictments

was inconsistent with the date of the offenses established at trial. Id. at 93, 661

S.E.2d at 904-05. The defendant’s computer had already been seized and was in the

possession of the Sheriff’s Office on 30 August 2004 — the day that the indictments

stated he was in possession of child pornography found on his computer. The evidence

at trial, however, showed that the files were saved on the computer’s hard drive and

last accessed by the defendant on 11 February 2004. During the second day of trial,

the State moved to amend the indictments in order to reflect the proper date of the

offenses, and the trial court allowed the amendment over the defendant’s objection.

Id. at 93, 661 S.E.2d at 905.

        On appeal, we stated the following on this issue:

                In order to prevail, defendant must show a fatal variance
                between the offense charged and the proof as to an
                essential element of the offense. In the instant case, the
                amendment was made regarding the time of the alleged
                criminal conduct. Thus, if time is not an essential element
                of N.C. Gen. Stat. § 14-190.17A(a), an amendment relating


        2 We have held that third-degree sexual exploitation of a minor and second-degree sexual
exploitation of a minor are separate and distinct offenses. See State v. Williams, 232 N.C. App. 152,
159-60, 754 S.E.2d 418, 424 (“[W]e believe that the Legislature’s criminalization of both receiving and
possessing such images was not intended merely to provide for the State a position to which to recede
when it cannot establish the elements of the greater offense, but rather to prevent or limit two separate
harms to the victims of child pornography.” (internal citation and quotation marks omitted)), appeal
dismissed and disc. review denied, 367 N.C. 784, 766 S.E.2d 846 (2014).


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             to the date of the offense is permissible since the
             amendment would not substantially alter the charge set
             forth in the indictment. As we have set out above, the
             elements of N.C. Gen. Stat. § 14-190.17A(a) include only
             the elements of knowledge and possession.

             A variance as to time, however, becomes material and of
             the essence when it deprives a defendant of an opportunity
             to adequately present his defense.

Id. at 93-94, 661 S.E.2d at 905 (internal citations, quotation marks, brackets, ellipses,

and emphasis omitted). We concluded that because “defendant did not present an

alibi defense and time is not an element of the offense, we therefore find no error as

to this issue.” Id. at 94, 661 S.E.2d at 905.

      Thus, Riffe establishes that time is not an element of third-degree sexual

exploitation of a minor. We decline Defendant’s invitation to read into Riffe any sort

of implicit holding that — unlike the case with third-degree sexual exploitation of a

minor — time is, in fact, an element of second-degree sexual exploitation of a minor.

      While Riffe reiterates the general rule that a variance as to time becomes

material if it deprives the defendant of his ability to prepare a defense, Defendant did

not attempt to advance an alibi defense or any other time-based defense at trial. Nor

has he argued on appeal that he would have done so had the indictment listed the

date of the offense as 18 October 2009. See State v. Hensley, 120 N.C. App. 313, 324-

25, 462 S.E.2d 550, 556-57 (1995) (“Defendant asserts the presence of a fatal variance

between the indictment and the proof offered at trial with respect to the date of the



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alleged offense. This argument cannot be sustained. . . . [W]e note defendant suffered

no prejudice as his defense was based upon complete denial of the charge rather than

upon alibi for the date set out in the indictment.”).       Accordingly, Defendant’s

argument on this issue is overruled.

IV. Motions to Dismiss

      Defendant’s final argument on appeal is that the trial court erred by denying

his motions to dismiss at the close of the State’s evidence and at the close of all the

evidence. Specifically, Defendant contends that the State failed to establish the

knowledge element of the offense of second-degree sexual exploitation of a minor. We

disagree.

      “Upon defendant’s motion for dismissal, the question for the Court 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 defendant’s being the perpetrator of

such offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation

omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). Substantial evidence is

evidence that a reasonable mind might accept as adequate to support a conclusion.

State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).          In reviewing

challenges to the sufficiency of the 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. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).



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      “Circumstantial evidence may withstand a motion to dismiss and support a

conviction even when the evidence does not rule out every hypothesis of innocence.”

State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). If the court decides

that a reasonable inference of the defendant’s guilt may be drawn from the

circumstances, then “it is for the jury to decide whether the facts, taken singly or in

combination, satisfy them beyond a reasonable doubt that the defendant is actually

guilty.” State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (citation,

quotation marks, ellipses, and emphasis omitted).         When ruling on a motion to

dismiss, the trial court should only be concerned with whether “the evidence is

sufficient to get the case to the jury; it should not be concerned with the weight of the

evidence.” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).

      Defendant contends that the only evidence presented at trial tending to show

that he was aware of the contents of the pornographic files found on his computer

was the fact that he “hung his head” when Detective Maness informed him that he

and Detective Chabot were executing a search warrant of his parents’ home for child

pornography.

      However, even putting aside the question of whether — and to what extent —

body language can in appropriate circumstances serve as admissible evidence of a

person’s state of mind, other competent evidence was presented by the State at

Defendant’s trial on the knowledge element of the offense. The State’s evidence



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showed that (1) the files in question had been manually downloaded directly to

Defendant’s computer using the Gnutella software file-sharing program; (2) the files

downloaded had titles clearly indicating that they contained pornographic images of

children; (3) the only user listed on the computer login screen was “Clay”; (4) the files

were manually transferred from the Gnutella program to the computer’s trash bin;

and (5) the MacBook was found in Defendant’s room partially concealed under his

mattress.

       It is well established that “[k]nowledge and intent, as processes of the mind,

are often not susceptible of direct proof and in most cases can be proved only by

inference from circumstantial evidence.” State v. Sink, 178 N.C. App. 217, 221, 631

S.E.2d 16, 19, disc. review denied, 360 N.C. 581, 636 S.E.2d 195 (2006). We believe

the above-referenced evidence constitutes sufficient circumstantial evidence of

Defendant’s knowledge of the contents of the files discovered on his computer.

Consequently, the trial court did not err in denying Defendant’s motions to dismiss.3

                                         Conclusion

       For the reasons stated above, we conclude that Defendant received a fair trial

free from prejudicial error.

       NO PREJUDICIAL ERROR.



       3Because Defendant only challenges the sufficiency of the evidence to support the knowledge
element of the second-degree sexual exploitation of a minor charges, we need not address the
remaining elements of this offense.

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Judges ELMORE and HUNTER, JR. concur.




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