State v Barker
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-630 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STATE OF NORTH CAROLINA v. Guilford County No. 09 CRS 102492 BRIAN DANIEL BARKER Appeal by Defendant from judgment entered 18 November 2010 by Judge Court. Lindsay R. Davis, Jr., in Guilford County Superior Heard in the Court of Appeals 9 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State. J. Clark Fischer for Defendant. STEPHENS, Judge. On 5 April 2010, Defendant Brian Daniel Barker was indicted for using a computer to solicit an unlawful sex act with a child. The charge arose from Defendant s communications in an online chat room1 with Detective Crystal Overcash of the Guilford 1 Chat rooms are Internet services that permit real time -2County Sheriff s Department, who was posing as a 13-year-old girl named Amy. These chats continued over a seven-month period between June and December 2009 and largely focused on sex, although more benign topics were also discussed. Overcash, the only witness for the State, presented copious excerpts of the chats between Defendant and Amy, which included discussions of, inter alia, kissing, masturbation, oral sex, and sexual positions. Defendant also sent Amy five Internet links to online pornographic videos, which they each watched and then discussed. On 28 December 2009, Defendant, who was 42 years old, suggested to Amy that the two meet the following day for lunch. The following day, Defendant and Amy continued to discuss a meeting. Ultimately, Defendant and Amy agreed to meet at a restaurant where Defendant was arrested. At the close of the State s evidence, Defendant moved to dismiss for insufficiency of the evidence. denied the motion. The trial court Defendant elected not to present evidence and renewed his motion to dismiss, which the trial court again denied. On 18 November 2010, the jury found Defendant guilty of the charge and the trial court sentenced him to 13-16 months in dialogue between users by transmitting messages almost immediately between the users computers or other devices. Reno v. American Civil Liberties Union, 521 U.S. 844, 851-52, 138 L. Ed. 2d 874, 885 (1997). -3prison. The Defendant on appeals. trial court supervised suspended probation the for sentence 36 and months. placed Defendant We find no error. Standard of Review We review a trial court s denial of a motion to dismiss criminal charges de novo, to determine 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. Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion. The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. . . . State v. (internal Fraley, __ quotation N.C. App. marks, __, brackets __, 688 and S.E.2d citations 778, 783 omitted), disc. review denied, 364 N.C. 243, 698 S.E.2d 660 (2010). [I]f the trial court determines that a reasonable inference of the defendant s guilt may be drawn from the evidence, it must deny the defendant s motion and send the case to the jury even though the evidence may also defendant s innocence. support reasonable inferences of the State v. Wright, 127 N.C. App. 592, 597, 492 S.E.2d 365, 368 (1997), disc. review denied, 347 N.C. 584, 502 S.E.2d 616 (1998). Discussion -4Defendant s sole argument is that the trial court erred in denying his motions to dismiss because the State failed to present substantial evidence of his intent to commit a sex act with Amy. Defendant contends his chats with Amy showed only that he planned a social get-together with a person he had grown . . . to consider a friend. We are not persuaded. A person is guilty of solicitation of a child by a computer if . . . the person knowingly, with the intent to commit an unlawful sex act, entices [or] advises, . . ., by means of a computer . . . a person the defendant believes to be a child who is less than 16 years of age and who the defendant believes to be at least five years younger than the defendant, to meet with the defendant or any other person for the purpose of committing an unlawful sex act. N.C. Gen. Stat. ยง 14-202.3(a) (2009). Intent is a mental attitude that must ordinarily be inferred from a defendant s acts and conduct, rather than proved by direct evidence. Wright, 127 N.C. App. at 597, 492 S.E.2d at 368. We have carefully reviewed the evidence, including the numerous graphic sexual discussions between Defendant and Amy, and Defendant s sending of pornographic video links to Amy for her to watch along with him and then discuss. On 28 December 2009, Defendant suggested the two meet and asked Amy what she wanted to do. When Amy was noncommittal, Defendant responded, -5 Guess we ll sit in the car till [sic] you think of something and later said they would kiss. asked Defendant something when if they they were met, The following day, when Amy gonna Defendant Depends on what you call wild. discussed being excited [sic] and do laughed wild and stuff or responded, Amy and Defendant also nervous about meeting. We acknowledge that Defendant did not explicitly suggest a sex act with Amy. However, in the context of the flirtation and heavy sexual innuendo of Amy, Defendant s his substantial chats online interactions with constitute substantial evidence of his intent to commit a sexual act with her at their proposed meeting. Simply put, because in the light most favorable to the State, the jury here could draw a reasonable inference from the evidence that Defendant intended to commit a sex act with Amy, the trial court properly denied his motion and sent the case to the jury. Accordingly, we find NO ERROR. Judges BRYANT and ELMORE concur. Report per Rule 30(e).
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