                                  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.
