              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1317

                                Filed: 7 August 2018

Onslow County, No. 15CRS057339

STATE OF NORTH CAROLINA

             v.

JASEN WILSON, Defendant.


      Appeal by Defendant from judgment entered 20 July 2017 by Judge Richard

Kent Harrell in Onslow County Superior Court. Heard in the Court of Appeals 6

June 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Larissa
      S. Williamson, for the State.

      Leslie Rawls for the Defendant.


      DILLON, Judge.


      Jasen Wilson (“Defendant”) appeals from the trial court’s judgment entered

upon a jury verdict finding him guilty of sex offenses by a person in a parental role.

Based on our careful review of the record and of controlling precedent, we conclude

that Defendant has failed to demonstrate reversible error.

                                   I. Background

      This case arises out of alleged sexual conduct by a stepfather with his then 16-

year-old stepdaughter. The evidence at trial tended to show the following:
                                  STATE V. WILSON

                                 Opinion of the Court



      In 2006, Defendant married and became the stepfather of his new wife’s young

daughter, Fiona.1 Fiona had never met her birth father, and Fiona grew up knowing

Defendant as her father.

      Years later, in September 2015, when Fiona was 16 years old, Fiona reported

to her high school resource officer that Defendant had “touched her inappropriately”

over the past couple of months. Fiona told an investigator that Defendant had

digitally penetrated her vagina. Defendant ultimately admitted to a police officer

that he touched Fiona in inappropriate ways, but he maintained that he had never

digitally penetrated her.

      Defendant was indicted on five counts of sexual activity by a substitute parent.

At trial, Fiona recanted what she had previously told the investigator. The officer

who had interviewed Defendant, though, testified to what Defendant had confessed

to him. The jury found Defendant guilty of two of the five counts of sexual activity

by a substitute parent. Defendant timely appealed.

                                    II. Analysis

      Defendant’s appeal focuses on the current state of the law that the State’s

burden at trial was to show that Defendant penetrated Fiona’s genitalia with his




      1   A pseudonym.



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                                         Opinion of the Court



fingers, not that he merely touched her genitalia.                 Specifically, Defendant was

convicted of two counts of violating N.C. Gen. Stat. § 14-27.7 (2014).2

       To prove a violation of Section 14-27.7, the State must prove that (1) the

accused had assumed the position of a parent in the home of a minor victim3 and (2)

that he engaged in a “sexual act” with the minor residing in the home. Id.

       The term “sexual act” as defined by our General Assembly does not cover every

manner of sexual contact. That is, not every sexual contact rises to the level of a

sexual act. Indeed, our General Assembly has defined “sexual contact” more broadly,

in relevant part, as the mere touching of a “sexual organ, anus, breast, groin or

buttocks[,]”4 whereas our General Assembly has defined “sexual act” more narrowly,

in relevant part, as “the penetration, however slight, by an object into the genital”

opening. N.C. Gen. Stat. § 14-27.1 (2014) (emphasis added).

       Accordingly, based on evidence which shows that Defendant had his hands in

Fiona’s genital area, the State had the burden to prove that Defendant actually

digitally penetrated Fiona to establish that Defendant violated Section 14-27.7.

Merely touching her genitals is not enough.5



       2  This statute has been re-codified to N.C. Gen. Stat. § 14-27.31 (2015). Because the events at
issue occurred prior to 1 December 2015, we reference the prior citation.
        3 Defendant does not challenge on appeal that the State’s evidence at trial was sufficient to

establish that he had assumed the role of Fiona’s parent.
        4 This statute was re-codified to N.C. Gen. Stat. § 14-27-20 in 2015.
        5 Any sexual contact by Defendant with Fiona, a minor of whom he had assumed the position

of a parent, may seem morally reprehensible. But all the evidence at trial showed that Fiona had



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                                          Opinion of the Court



        Defendant makes two arguments on appeal, each of which focuses on the trial

testimony of the officer who had interviewed Defendant. We address each argument

in turn.

                         A. Denial of Defendant’s Motion to Dismiss

        Defendant argues that the trial court erred in denying his motion to dismiss,

contending that the State failed to offer any competent evidence to show that

Defendant penetrated Fiona’s genitalia.

        Our standard of review is to determine whether the evidence, taken in the light

most favorable to the State and giving the State the benefit of all reasonable

inferences, could persuade a rational juror that Defendant, in fact, penetrated (and

not merely touched) Fiona’s genitalia with his finger. See State v. Hill, 365 N.C. 273,

275, 715 S.E.2d 841, 842-83 (2011). If all reasonable inferences of such evidence




reached the age of 16 when her alleged encounters with Defendant occurred. In North Carolina, the
“age of consent” is 16. Therefore, assuming that Fiona lawfully consented to these encounters with
her stepfather, any act of touching her genital area for his sexual gratification is not a crime under
our statutes criminalizing indecent liberties with a child, N.C. Gen. Stat. § 14-202.1 (2015) (stating
the victim must be under 16 years of age). Our Supreme Court has recognized that one can be guilty
of a crime against nature pursuant to N.C. Gen. Stat. § 14-177 for a sexual encounter with a victim
under 18, see State v. Hunt, 365 N.C. 432, 440, 722 S.E.2d 484, 490 (2012); however, our Supreme
Court has also held that “penetration” is a required element of a crime against nature, see State v.
Whittemore, 255 N.C. 583, 585, 122 S.E.2d 396, 398 (holding that “not every act of sexual perversion
is encompassed within the definition of ‘the crime against nature’ . . . . The crime . . . is not complete
without penetration, however slight . . . .”). Our General Assembly has only criminalized consensual
sexual encounters between a stepfather who has assumed the role of a parent and his minor
stepdaughter who has reached her sixteenth birthday and is living under his roof where the encounters
rise to the level of a “sexual act” as defined by our General Assembly. Mere “sexual contact,” even if
done for the stepfather’s sexual gratification, is not enough, so long as the sixteen-year old
stepdaughter lawfully consents.



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                                       Opinion of the Court



merely “raise a suspicion or conjecture” that Defendant penetrated Fiona’s genitalia,

then it was the trial court’s duty to allow Defendant’s motion to dismiss. See State v.

Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).

       Here, the only substantive, competent evidence offered by the State at trial in

its attempt to show that Defendant penetrated Fiona was through the testimony of

the officer who recounted what Defendant confessed to him.6 This officer testified

that Defendant confessed to putting his hands “in [Fiona’s] genital area” with her

consent, which caused her to become sexually aroused:

       A. [Officer describing that Defendant confessed that he and Fiona]
          would spoon, watching [TV.] At times, she would put my hands in
          her genital area, and I would pull my hand back and she would put
          it back there. And then I realized it’s something she wanted to feel,
          so I would let her experience that. She felt safe with me. She felt
          comfortable with me. So there were times that she put my hand in
          her pants.
          [Officer then described his] line of questioning [that] went, was she
          excited about it, was it something she wanted? And that’s when
          [Defendant] talked about her actually being wet and he could feel
          that, on a couple of occasions, but it was something that she wanted.
          . . . [He] went on to talk about it occurring more, you know, other
          times it had occurred.

       Q. So he indicated to you that this happened on several occasions, is that
          correct?

       A. Yes, ma’am.

           ****



       6Statements of a defendant are admissible as exceptions to hearsay under rule 801(d) of the
North Carolina Rules of Evidence. N.C. Gen. Stat. § 8C-801(d) (2015).

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                                  Opinion of the Court



      Q. Did [Defendant] indicate, even though he called her the aggressor,
         did he indicate that he participated in the act?

      A. Well, yes. He said that, you know, whenever she wanted – what he
         described as that he did not want her to experience this anywhere
         else. He – because she felt safe with him, he wanted her to
         experience it with him. He felt like that it was something that she
         was exploring. He didn’t want to stifle that exploration. He wanted
         her to be able to feel these things.

      We conclude that a rational juror, hearing this description of Defendant being

“in” Fiona’s genital area, wanting her to experience sexual stimulation by his touch,

feeling that she was “wet,” and feeling that she was sexually stimulated by his touch,

could reasonably infer that Defendant at least penetrated Fiona’s labia,

notwithstanding that a rational juror could reasonably infer otherwise. See, e.g.,

State v. Walston, 367 N.C. 721, 729, 766 S.E.2d 312, 318 (2014) (holding that “[t]he

entering of the labia is sufficient to establish [penetration]”). We note Defendant’s

statement to the officer denying penetrating Fiona, but we are to disregard this and

other evidence unfavorable to the State in considering the sufficiency of the State’s

evidence. Hill, 365 N.C. at 275, 715 S.E.2d at 842-83.

      We also note that in State v. Whittemore our Supreme Court held that

testimony that the accused told the alleged victim to pull her pants down and then

proceeded to “put his hand on [her] privates” for “two or three minutes,” then “put his

mouth . . . on [her] privates” for about “one or two minutes,” and then “[rubbed] his

privates at [her] privates rubbing it up and down” was insufficient to prove that any



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                                   Opinion of the Court



penetration had occurred. Whittemore, 255 N.C. at 586, 122 S.E.2d at 398. By

contrast, the facts of the present case raise more than a mere suspicion or conjecture

that penetration occurred.     Though the evidence does not conclusively establish

penetration, we conclude that a juror could reasonably infer that penetration

occurred.

                                       B. Plain Error

      Defendant argues that the trial court plainly erred by allowing the officer to

give his “opinion” that (quoting Defendant’s brief) “the secretions a woman emitted

during sexual arousal can only be detected by vaginal penetration” and that, based

on Defendant’s confession, the fact that Defendant could feel that Fiona was “wet” in

her genital area means penetration must have occurred:

      Q. And the specific sexual act that you were talking about, how would you
         characterize that? What sexual act was being committed, according to what
         he was saying?

      A. At that point, I would think he had his hands in his (sic) pants and he was
         digitally penetrating her. That would be the sexual act I would be thinking
         about, or talking about. If he could feel [her being wet], that would lead me
         to believe he had to do it.

Also, on cross-examination, the officer agreed that “you cannot feel the wetness unless

your finger is inside the vagina[.]”

      In order to properly preserve an evidentiary error for appellate review, the

appealing party must have objected at trial. State v. Odom, 307 N.C. 655, 659, 300

S.E.2d 375, 378 (1983). If the appealing party fails to object at the appropriate time,


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                                  Opinion of the Court



our review is limited to plain error. Id. at 660, 300 S.E.2d at 378. Under plain error

review, we first “must determine that an error occurred at trial.” State v. Miller, ___

N.C. ___, ___, 814 S.E.2d 81, 83 (2018). If we determine that the “judicial action

questioned amounted to error,” see N.C. R. App. P. 10(a)(4), then we must determine

whether, absent that error, the jury would have probably reached a different result.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).

      Here, Defendant did not object to the officer’s testimony. Therefore, we review

for plain error. Assuming that the trial court erred by not striking the testimony, we

conclude that such error did not rise to the level of plain error. Absent the officer’s

“opinion” concerning female anatomy, there was sufficient competent evidence for the

jury to conclude that Defendant had penetrated Fiona, as set forth in the previous

section of this opinion. Defendant has identified no evidence or argument presented

at trial indicating that the jury was led to believe that the officer’s knowledge of

female anatomy exceeded the knowledge of that of the jurors. Accordingly, we do not

believe that it is reasonably probable that the jury was swayed by the officer’s

“opinion” regarding female anatomy such that it would have reached a different

result had his “opinion” not been before the jury.

      NO ERROR.

      Judges DAVIS and INMAN concur.




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