{ "id": 8411226, "name": "STATE OF NORTH CAROLINA v. KENNETH MICHAEL OAKLEY", "name_abbreviation": "State v. Oakley", "decision_date": "2004-12-07", "docket_number": "No. COA03-1709", "first_page": "318", "last_page": "324", "citations": [ { "type": "official", "cite": "167 N.C. App. 318" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "539 U.S. 558", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8898517 ], "opinion_index": -1, "case_paths": [ "/us/539/0558-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "607", "parenthetical": "quoting N.C.R. App. P. 28(b)(6)" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "87", "parenthetical": "quoting N.C.R. App. P. 28(b)(6)" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "592 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "744" }, { "page": "745" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915295 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "93" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0084-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "cite": "588 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "68-69" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957362 ], "year": 2003, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0316-01" ] }, { "cite": "478 U.S. 186", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204722 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/478/0186-01" ] }, { "cite": "501 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659968, 1659857, 1659819, 1659829 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0285-03", "/nc/348/0285-01", "/nc/348/0285-04", "/nc/348/0285-02" ] }, { "cite": "495 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1998, "pin_cites": [ { "page": "754" }, { "page": "753" }, { "page": "755" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656120 ], "year": 1998, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0592-01" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "539 U.S. 558", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8898517 ], "weight": 8, "pin_cites": [ { "page": "578" }, { "page": "525-26" }, { "page": "569" }, { "page": "519-20", "parenthetical": "citation omitted" }, { "page": "578" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/us/539/0558-01" ] } ], "analysis": { "cardinality": 698, "char_count": 13840, "ocr_confidence": 0.748, "pagerank": { "raw": 1.1983945998968464e-07, "percentile": 0.5930540738089364 }, "sha256": "9b7e68759555ef4445341ab07a0da92e6fdbb371fc1680c2d9d0d62cbf63d5fc", "simhash": "1:e36b16284d1b8ed4", "word_count": 2194 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and THORNBURG concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH MICHAEL OAKLEY" ], "opinions": [ { "text": "HUNTER, Judge.\nKenneth Michael Oakley (\u201cdefendant\u201d) appeals from a judgment dated 20 March 2003 entered consistent with a jury verdict finding him guilty of two counts of sexual activity by a substitute parent. For the reasons stated within, we find no error.\nThe evidence tends to show that at the time of the occurrence, defendant was a twenty-three-year-old police officer employed by the Mebane Police Department and later the Alamance County Sheriffs Office. Defendant met sixteen-year-old Kevin W. O\u2019Dell (\u201cO\u2019Dell\u201d) in 2000 while responding to a call at the home of O\u2019Dell\u2019s mother, Janie Rook (\u201cRook\u201d). Defendant was involved in a sexual relationship with Rook for approximately one year. During that time, defendant also spent time with O\u2019Dell, buying him clothing, taking him on a weekend trip to a North Carolina beach, and on occasion letting O\u2019Dell stay with him at the home he shared with another officer while O\u2019Dell was having difficulty with Rook. During this time, O\u2019Dell was arrested on a number of charges and was on juvenile, and later adult, probation for breaking and entering and various drug and alcohol related crimes.\nOn 1 January 2002, Rook had O\u2019Dell, seventeen-years-old at that time, arrested for underage drinking and asked family members not to post bail for him. Defendant posted O\u2019Dell\u2019s bond, signed the release forms as his temporary custodian, and took O\u2019Dell home to stay with him. Defendant also obtained permission from O\u2019Dell\u2019s parole officer for O\u2019Dell to live with him. During and prior to the time O\u2019Dell resided with defendant in January of 2002, defendant provided him food, clothing, and shelter, as well as gave him gifts. Defendant also had O\u2019Dell tested for drugs. After a confrontation between O\u2019Dell and defendant, defendant called the police and had O\u2019Dell arrested for underage drinking on 27 January 2002. Defendant then filed a petition to have O\u2019Dell involuntarily committed on 30 January 2002 for substance abuse treatment, again representing himself as O\u2019Dell\u2019s temporary custodian.\nO\u2019Dell testified that he engaged in sexual activities with defendant in exchange for money during and prior to the time he resided with defendant. Defendant testified that he engaged in oral and anal sex with O\u2019Dell while he resided with defendant.\nDefendant was charged with and convicted of two counts of sexual activity by a substitute parent. Defendant was given a suspended sentence of a term of twenty-fonr to thirty-eight months, and placed on supervised probation for thirty-six months. Defendant appeals.\nI.\nBy his first assignment of error, defendant contends the trial court erred in admitting certain photographs found in deendant\u2019s home, as the evidence was irrelevant to the charge and improperly prejudiced defendant in placing his sexual orientation on trial. We disagree.\nThe State, over defendant\u2019s objection, admitted a series of fifteen photographs that depicted a number of unidentified white males. Several of the photographs were identified as DMV photographs which could be downloaded from the Internet, some were photographs of inmates from a police lineup, and others were unidentified young, white males. Some of the photographs depicted males shirtless, some showed males in uniform and others showed males handcuffed. Defendant contends that admission of these photographs was irrelevant, immaterial, and grossly prejudicial as it improperly put defendant\u2019s sexual orientation on trial in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 19 of the North Carolina Constitution.\nEvidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would without the evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2003). Relevant evidence is generally admissible except where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2003). \u201c[E]ven though a trial court\u2019s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.\u201d State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991).\nIn State v. Creech, the defendant was charged with multiple counts of indecent liberties with a minor and one count of crimes against nature. See Creech, 128 N.C. App. 592, 595, 495 S.E.2d 752, 754, disc. review denied, 348 N.C. 285, 501 S.E.2d 921 (1998). The victims in Creech were adolescent males. Id. at 593-94, 495 S.E.2d at 753. The State submitted evidence of photographs found in the defendant\u2019s possession of male models and men in brief clothing. Id. at 596, 495 S.E.2d at 755. The defendant contended such admissions were unfairly prejudicial and that he was convicted because the jury viewed him as a homosexual after seeing the photographs. Id. The Creech Court found no prejudicial error in the introduction of the photographs, however, as defendant testified at trial as to his sexual encounters with men. Id. The Court also noted in Creech that other witnesses had referred to the defendant\u2019s sexual orientation before the photographs were entered, and that the photographs served to corroborate the testimony of other witnesses. Id. As a result, the Court found the probative value of the photographs substantially outweighed the danger of unfair prejudice to defendant\u2019s case. Id.\nAs in Creech, the State here contends that the photographs were offered to corroborate O\u2019Dell\u2019s testimony regarding the sexual nature of his relationship with defendant. Further, defendant admitted to engaging in sexual intercourse with O\u2019Dell at trial and other State witnesses had referred to defendant\u2019s sexual orientation prior to the introduction of the photographs. Therefore, we find no error in the trial court\u2019s ruling that the probative value of the photographs outweighed the danger of unfair prejudice to defendant by introduction of such evidence.\nDefendant contends that the United States Supreme Court\u2019s recent decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003), overturning its prior holding in Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 (1986), established constitutional protection for decisions of personal autonomy which extends to homosexual relationships, and therefore admission of evidence which showed defendant to be homosexual was grossly prejudicial. See Lawrence, 539 U.S. at 578, 156 L. Ed. 2d at 525-26.\nHowever, a close review of Lawrence shows the decision specifically noted that, unlike more recent same-sex sodomy statutes, the historical record supports enforcement of sodomy statutes in situations involving adults and minors.\nLaws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise addressed the predatory acts of an adult man against a minor girl or minor boy.\nLawrence, 539 U.S. at 569, 156 L. Ed. 2d at 519-20 (citation omitted). The Court further noted the narrow scope of its ruling by stating that, \u201c[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.\u201d Id. at 578, 156 L. Ed. 2d at 525. Thus, Lawrence\u2019s recognition of autonomy and personal choice within consensual adult relationships does not offer constitutional protection to evidence presented in a charge of criminally prohibited activity with minors, as is the case sub judice. See State v. Clark, 161 N.C. App. 316, 321, 588 S.E.2d 66, 68-69 (2003). Therefore, we find no prejudicial error in the trial court\u2019s admission of the photographs.\nII.\nDefendant next contends the trial court erred in denying defendant\u2019s motions to dismiss and to set aside the verdict for insufficient evidence that defendant has assumed the position of a parent in the victim\u2019s home. We disagree.\nWhen reviewing challenges to the sufficiency of the evidence in criminal trials, the evidence must be reviewed in the light most favorable to the State. See State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The State receives the benefit of all reasonable inferences, and any contradictions or discrepancies are for the jury to resolve. Id.\nHere, defendant was charged with the crime of sexual activity by a substitute parent. N.C. Gen. Stat. \u00a7 14-27.7(a) (2003). This crime requires a finding that the defendant had (1) assumed the position of a parent in the home, (2) of a minor victim, and (3) engaged in a sexual act with the victim residing in the home. Id.\nIn State v. Bailey, this Court recently held that in order to find a parental relationship for the purposes of \u00a7 14-27.7(a), \u201cevidence of the relationship between the defendant and child-victim must provide support for the conclusion that the defendant functioned in a parental role. Such a parental role will generally include evidence of emotional trust, disciplinary authority, and supervisory responsibility.\u201d Bailey, 163 N.C. App. 84, 93, 592 S.E.2d 738, 744 (2004).\nHere, evidence presented at trial showed that defendant, a law enforcement officer, was a friend of the family and initially involved in a sexual relationship with O\u2019Dell\u2019s mother. Defendant provided clothing for O\u2019Dell, took him to court dates, and allowed O\u2019Dell to stay with him on occasion. Following defendant\u2019s bailment of O\u2019Dell in 2002, defendant represented himself as O\u2019Dell\u2019s temporary custodian and obtained permission from O\u2019Dell\u2019s parole officer for O\u2019Dell to live with him. Defendant paid for all of O\u2019Dell\u2019s support during this time, including food, shelter, gifts and spending money. Further, defendant had O\u2019Dell tested for drugs and alcohol, had O\u2019Dell arrested for underage drinking, and again represented himself as O\u2019Dell\u2019s temporary custodian in seeking an evaluation of him for involuntary civil commitment for substance abuse. Unlike in Bailey, where the evidence tended to show that the defendant was merely a babysitter, 163 N.C. App. at 94, 592 S.E.2d at 745, the evidence in this case, when viewed in the light most favorable to the State, provides evidence of emotional trust, disciplinary authority, and supervisory responsibility by defendant towards O\u2019Dell.\nDefendant does not dispute the other elements of the offense, namely that O\u2019Dell, seventeen-years-old, was a minor when the offenses occurred and that defendant, twenty-three years old, was an adult. Further, defendant himself testified as to the occurrence of sexual acts with O\u2019Dell. Therefore, as sufficient evidence of all the elements was presented to reach the jury as to the charge of sexual offense of a person in a parental role, the trial court did not err in its denial of defendant\u2019s motions to dismiss and to set aside the verdict for insufficient evidence.\nIII.\nDefendant raises three additional assignments of error in his brief in a section entitled Preservation Claims, but cites no authority in support of these claims. \u201c \u2018Assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u2019 \u201d State v. Lloyd, 354 N.C. 76, 87, 552 S.E.2d 596, 607 (2001) (quoting N.C.R. App. P. 28(b)(6)). Defendant\u2019s additional assignments of error are therefore deemed abandoned.\nFor the above reasons, we find the trial court did not err in admitting the challenged State\u2019s evidence and properly concluded there was sufficient evidence to deny defendant\u2019s motion to dismiss.\nNo error.\nJudges WYNN and THORNBURG concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Diane G. Miller, for the State.", "Don Willey for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH MICHAEL OAKLEY\nNo. COA03-1709\n(Filed 7 December 2004)\n1. Evidence\u2014 prosecution for homosexual activity with minor \u2014 photographs of men \u2014 admissible\nThe court did not err in a prosecution for sexual activity by a substitute parent in ruling that the probative value of photographs of men found in defendant\u2019s home outweighed the danger of unfair prejudice. The photographs were corroborative of the victim\u2019s testimony and other witnesses had testified to defendant\u2019s sexual orientation. Lawrence v. Texas, 539 U.S. 558, recognizes autonomy and personal choice within personal relationships, but does not offer constitutional protection to evidence presented in a charge of criminally prohibited activity with minors.\n2. Sexual Offenses\u2014 sexual activity by substitute parent\u2014 parental relationship \u2014 evidence sufficient\nThere was sufficient evidence of the parental relationship in a prosecution for sexual activity by a substitute parent where defendant, who initially had a sexual relationship with the 17-year-old boy\u2019s mother, obtained permission from the victim\u2019s parole officer for the victim to live with him and provided clothes, food, shelter, bail, and other support, and was more than a babysitter.\nAppeal by defendant from judgment entered 20 March 2003 by Judge Dennis J. Winner in Alamance County Superior Court. Heard in the Court of Appeals 21 September 2004.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Diane G. Miller, for the State.\nDon Willey for defendant-appellant." }, "file_name": "0318-01", "first_page_order": 348, "last_page_order": 354 }