{ "id": 4169328, "name": "STATE OF NORTH CAROLINA v. WILLIE MOSEL McCLARY, Defendant", "name_abbreviation": "State v. McClary", "decision_date": "2009-07-07", "docket_number": "No. COA09-102", "first_page": "169", "last_page": "177", "citations": [ { "type": "official", "cite": "198 N.C. App. 169" } ], "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": "652 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639663 ], "year": 2007, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0241-01" ] }, { "cite": "669 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642336 ], "year": 2008, "pin_cites": [ { "page": "836", "parenthetical": "quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0832-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "248" }, { "page": "249" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "563" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "241 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573953, 8573931, 8573910, 8573886 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0445-04", "/nc/294/0445-03", "/nc/294/0445-02", "/nc/294/0445-01" ] }, { "cite": "239 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551634 ], "year": 1977, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0700-01" ] }, { "cite": "431 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "5", "parenthetical": "citing State v. Vehaun, 34 N.C. App. 700, 705, 239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 846-47 (1978)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529593 ], "year": 1993, "pin_cites": [ { "page": "100", "parenthetical": "citing State v. Vehaun, 34 N.C. App. 700, 705, 239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 846-47 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0092-01" ] }, { "cite": "467 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "342 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795978 ], "year": 1996, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0580-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "779" }, { "page": "779" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "385" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "682" }, { "page": "682" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "49" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "361 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "580", "parenthetical": "citing Hicks, 79 N.C. App. at 602, 339 S.E.2d at 808" }, { "page": "580" } ], "opinion_index": 0 }, { "cite": "321 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566911 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "104", "parenthetical": "citing Hicks, 79 N.C. App. at 602, 339 S.E.2d at 808" }, { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0102-01" ] }, { "cite": "278 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170318 ], "year": 1981, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0376-01" ] }, { "cite": "339 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "809", "parenthetical": "citing State v. Turman, 52 N.C. App. 376, 377, 278 S.E.2d 574, 575 (1981)" }, { "page": "808" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522298 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "603", "parenthetical": "citing State v. Turman, 52 N.C. App. 376, 377, 278 S.E.2d 574, 575 (1981)" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0599-01" ] }, { "cite": "427 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545258, 2548556, 2544118, 2549759 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0465-02", "/nc/333/0465-04", "/nc/333/0465-01", "/nc/333/0465-03" ] }, { "cite": "424 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "690" }, { "page": "690" }, { "page": "690-91" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525252 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "653" }, { "page": "653" }, { "page": "654-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0648-01" ] }, { "cite": "578 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "647", "parenthetical": "quoting State v. McClees, 108 N.C. App. 648, 653, 424 S.E.2d 687, 690, disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993)" }, { "page": "648" }, { "page": "648" }, { "page": "647" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185720 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "205", "parenthetical": "quoting State v. McClees, 108 N.C. App. 648, 653, 424 S.E.2d 687, 690, disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993)" }, { "page": "205" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0200-01" ] }, { "cite": "400 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "417" } ], "opinion_index": 0 }, { "cite": "328 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542427 ], "year": 1991, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0175-01" ] }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "761", "parenthetical": "citing State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 417 (1991)" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544", "parenthetical": "citing State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 417 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1979, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "361 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736794 ], "year": 2007, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0646-01" ] }, { "cite": "194 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162570 ], "year": 2008, "pin_cites": [ { "page": "472-73", "parenthetical": "quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0468-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2007, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 806, "char_count": 18558, "ocr_confidence": 0.75, "pagerank": { "raw": 9.546152699920857e-08, "percentile": 0.5250078286417471 }, "sha256": "9f104b6c8f736821e475426b293b3c40f55e05ec6e94dc5db7f60f2e3bcccfb2", "simhash": "1:0a8bf5340eb7e6c6", "word_count": 3096 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, ROBERT C. and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE MOSEL McCLARY, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere the State presented substantial evidence to support each element of taking an indecent liberty with a child, the trial court properly denied defendant\u2019s motion to dismiss. Where defendant failed to show that the jury would have returned a different verdict absent the admission of the disputed testimony, the trial court did not commit plain error in admitting the testimony. Where defendant failed to show that the jury would have returned a different verdict had trial counsel objected to the admission of the disputed testimony, defendant was not denied his right to effective assistance of counsel.\nI. Factual and Procedural Background\nOn 7 April 2008, defendant was charged with taking indecent liberties with a child. N.C. Gen. Stat. \u00a7 14-202.1(a) (2007).\nDefendant and J.M. lived next door to each other. At the time of the alleged incident, defendant was thirty-seven years of age, and J.M. was fifteen years of age. Although J.M. never engaged in conversation with defendant, she would often walk by defendant\u2019s house, and he would come outside and say, \u201chey, beautiful\u201d or \u201chey, sexy.\u201d\nIn the light most favorable to the State, the evidence presented at trial tended to show that on 20 January 2008, J.M. walked home alone from a park. As she crossed the railroad tracks she heard footsteps behind her. She turned around, and defendant handed her a letter written on notebook paper. He told her not to show the letter to anyone or tell anyone about it. When J.M. arrived home, she first showed the letter to her brother and then opened it up and read it. On the outside of the letter was written, \u201cLet\u2019s \u2018f_\u2019 Please Please give me some of that \u2018P_\u2019 To: you from: me.\u201d On the inside was written the following:\nBaby Girl; Little Beautiful\nWhat\u2019s up Baby Girl? And what\u2019s going on with you At This present time; And moment; nothing much my WAy Just Thinking about you; And Trying To figure out when will you let; And Allow me To \u201cf_\u201d you; And Receive some of your; \u201csweet\u201d; \u201cfat\u201d; \u201cJuicy\u201d; and \u201cWet\u201d \u201cP_\u201d; I\u2019m offering you $10 Dollars That\u2019s All That I Have; And Got to To give Right Now; But I want for us To Do This Thing This friday say Around Between 5-o clock; And 7-oclock when There\u2019s No-one Here But The Two of us Just \u201cf_ing\u201d each other; Me \u201ce_ing\u201d And \u201csu ing\u201d That \u201cP . \u201d As well; so Boo; Boo let\u2019s get Together And Do The D_ Thing; And Just \u201cf_\u201d like we\u2019ve Never \u201cf_\u201d Before; you; And I; you; And Me us \u201cf_ing\u201d; so please shorty let Me Have some of That \u201cP_\u201d; so let me Know By Thursday or Better yet Wens\u2019Day Cause I Really want That \u201cP_\u201d;\nP.S. let No-one Know But you And Me okay Thank you;\nP.S.S. Between you; And Me let\u2019s \u201cf_\u201d Please; So please give some of \u201cyour\u201d \u201cP_\u201d P.S.S.S. Between you; And I Please give me \u201csome of That \u201cp_\u201d Please give Me That some \u201cyour\u201d; \u201cp_\u201d; Please; \u00ab\u201e 5?. \u00abp F- i r->\nP.S.S.S. Please let Me Have \u201csome\u201d of \u201cyour\u201d \u201cP_\u201d Please \u201csome\u201d of \u201cyour\u201d \u201cP_\u201d Please give \u201csome\u201d of \u201cyour\u201d; \u201cP_\u201d;\nUpon reading the letter, J.M.\u2019s father immediately called the police. During questioning, defendant did not deny writing the letter but asserted that he had written it for, and given it to, a lady his own age named Iris a few weeks earlier. He did not know her last name or where she currently lived, except that it was somewhere behind a Hardee\u2019s on Wayne Memorial Drive. After an investigation, the police were unable to locate any woman named Iris of that age with an address anywhere in the city.\nOn 29 May 2008, the jury found defendant guilty of taking an indecent liberty with a child. Defendant was found to be a prior record level I for felony sentencing and received an active sentence of thirteen to sixteen months.\nDefendant appeals.\nII. Taking an Indecent Liberty with a Child\nIn his first argument, defendant contends that the trial court erred in denying defendant\u2019s motion to dismiss the charge of taking an indecent liberty with a child. We disagree.\n\u201c[I]n ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of that crime.\u201d State v. Ford, 194 N.C. App. 468, 472-73, 669 S.E.2d 832, 836 (2008) (quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The test for determining the sufficiency of the evidence to withstand defendant\u2019s motion to dismiss is the same whether the evidence is circumstantial, direct, or both. State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). \u201c[I]f a motion to dismiss calls into question the sufficiency of circumstantial evidence, the issue for the court is whether a reasonable inference of the defendant\u2019s guilt may be drawn from the circumstances.\u201d Id. (citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1979)). We view the evidence \u201cin the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (citing State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 417 (1991)).\nN.C. Gen. Stat. \u00a7 14-202.1(a) defines taking indecent liberties with a child in part as:\nA person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]\nN.C. Gen. Stat. \u00a7 14-202.1(a)(1) (2007).\nDefendant contends that the State did not present sufficient evidence that defendant took or attempted to take an indecent liberty with the juvenile, or that defendant\u2019s action was for the purpose of arousing or gratifying sexual desire.\nIndecent liberties are defined as \u201csuch liberties as the common sense of society would regard as indecent and improper.\u201d State v. Every, 157 N.C. App. 200, 205, 578 S.E.2d 642, 647 (2003) (quoting State v. McClees, 108 N.C. App. 648, 653, 424 S.E.2d 687, 690, disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993)). Neither a completed sex act nor an offensive touching of the victim are required to violate the statute. State v. Hicks, 79 N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986) (citing State v. Turman, 52 N.C. App. 376, 377, 278 S.E.2d 574, 575 (1981)). This Court has specifically rejected the argument that \u201cthe utterance of \u2018mere words,\u2019 no matter how reprehensible, does not constitute the taking of an indecent liberty with a child.\u201d Every, 157 N.C. App. at 205, 578 S.E.2d at 648.\nThe State is required to show that \u201cthe action by the defendant was for the purpose of arousing or gratifying sexual desire.\u201d State v. Rhodes, 321 N.C. 102, 104, 361 S.E.2d 578, 580 (1987) (citing Hicks, 79 N.C. App. at 602, 339 S.E.2d at 808). \u201c[A] variety of acts may be considered indecent and may be performed to provide sexual gratification to the actor.\u201d Every, 157 N.C. App. at 206, 578 S.E.2d at 648 (quoting State v. Etheridge, 319 N.C. 34, 49, 352 S.E.2d 673, 682 (1987)). Moreover, the variety of acts included under the statute demonstrate that the scope of the statute\u2019s protection is to \u201cencompass more types of deviant behavior\u201d and provide children with \u201cbroader protection\u201d than that available under statutes proscribing other sexual acts. Id. (quoting Etheridge, 319 N.C. at 49, 352 S.E.2d at 682).\nIn the instant case, taking the evidence in the light most favorable to the State, defendant gave J.M. a letter containing sexually graphic language for the purpose of soliciting sexual intercourse and oral sex. This letter included the use of the word \u201cf_\u201d seven times and the word \u201cp_\u201d thirteen times. The letter also offered to pay J.M. ten dollars. Defendant\u2019s actions of overtly soliciting sexual acts from J.M. through the sexually explicit language contained in the letter fall within the broad category of behavior that \u201cthe common sense of society would regard as indecent and improper.\u201d Id. at 205, 578 S.E.2d at 647 (quoting McClees, 108 N.C. App. at 653, 424 S.E.2d at 690). In light of the sexually graphic and grossly improper nature of the letter, the State presented sufficient evidence for a jury to reasonably conclude that defendant willfully took indecent liberties with J.M. by writing and giving her the letter.\nThe requirement that defendant\u2019s actions were for the purpose of arousing or gratifying sexual desire \u201cmay be inferred from the evidence of the defendant\u2019s actions.\u201d Rhodes, 321 N.C. at 105, 361 S.E.2d at 580. In State v. McClees, this Court held that the defendant\u2019s act of secretly videotaping an undressed child was for the purpose of arousing or gratifying sexual desire even though no evidence was presented showing that the defendant ever actually viewed the video. McClees, 108 N.C. App. at 654-55, 424 S.E.2d at 690-91. Thus, the completion of the defendant\u2019s ultimate desired act, watching the video tape, was not required in order to allow the jury to reasonably infer that the defendant\u2019s acts of secretly setting up the video camera and arranging for the child to undress directly in front of the camera were for the purpose of arousing or gratifying sexual desire.\nIn the instant case, the completion of defendant\u2019s ultimate desired act, having sexual intercourse and oral sex with J.M., was not required in order to allow the jury to reasonably infer that defendant\u2019s acts of writing and delivering the letter to J.M. were for the purpose of arousing or gratifying sexual desire. Taking the evidence in the light most favorable to the State, defendant\u2019s purpose in writing and giving the letter to the juvenile could be inferred from the language found in the letter. The repeated, explicit, sexual language expressing defendant\u2019s desire to engage in sexual acts with the juvenile was sufficient evidence for a jury to infer that defendant\u2019s written solicitation of sexual acts was for the purpose of arousing or gratifying his sexual desire.\nWe hold that the State presented sufficient evidence of each element of taking an indecent liberty with a child. The trial court properly denied defendant\u2019s motion to dismiss.\nThis argument is without merit.\nTTI. Plain Error\nIn his second argument, defendant contends that the trial court committed plain error by admitting into evidence testimony regarding a prior letter allegedly given to another girl by defendant. We disagree.\nWe review this issue for plain error because defendant failed to object to the admission of the testimony at trial. See State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Plain error review is only available in criminal cases and is limited to errors injury instructions or rulings on the admissibility of evidence. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). In order to establish plain error, defendant has the burden of showing \u201c(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u201d Bishop, 346 N.C. at 385, 488 S.E.2d at 779.\nDuring direct examination by the State, the officer in charge of the investigation read into evidence the statement he took from J.M. Included in J.M.\u2019s statement was her response to the officer\u2019s question of whether she knew of any other girls defendant had given similar letters to. J.M.\u2019s response was \u201c[sjomebody told me that he did it to another girl named Jasmine who now goes to Eastern Wayne High School. She used to go to Goldsboro Middle. She is a freshman. My brother knows her phone number.\u201d\nAssuming arguendo that the trial court erred in admitting this testimony, the error does not rise to plain error. \u201cThe uncorroborated testimony of the victim is sufficient to convict under N.C.G.S. \u00a7 14-202.1 if the testimony establishes all of the elements of the offense.\u201d State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993) (citing State v. Vehaun, 34 N.C. App. 700, 705, 239 S.E.2d 705, 709 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 846-47 (1978)). In the instant case, the State presented sufficient evidence to allow a jury to reasonably conclude that defendant was guilty of taking an indecent liberty with a child. J.M.\u2019s testimony that defendant delivered the letter to her, defendant\u2019s use of sexually graphic language in the letter, and defendant\u2019s overt solicitation of sexual acts constituted substantial evidence showing defendant\u2019s willful taking of an indecent liberty with an underlying purpose of arousing or gratifying his sexual desire.\nDefendant failed to show that the jury probably would have returned a different verdict absent the disputed testimony and thus, has failed to show plain error.\n' This argument is without merit.\nIV. Ineffective Assistance of Counsel\nIn his third argument, defendant contends that because trial counsel failed to object to the admission of the disputed testimony, defendant was denied his right to effective assistance of counsel. We disagree.\n\u201cThe proper standard for attorney performance is that of reasonably effective assistance.\u201d Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). First, defendant must show that his counsel\u2019s performance was so deficient that \u201ccounsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment.\u201d Id. Second, defendant must show that counsel\u2019s deficient performance was so prejudicial as to deprive defendant of a fair trial. Id. Even an unreasonable error made by counsel does not warrant reversal unless there is a \u201creasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings.\u201d State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985). If a reviewing court can determine that there is no reasonable probability that absent counsel\u2019s alleged error the result of the proceeding would have been different, then the court need not determine whether counsel\u2019s performance was actually deficient. Braswell, 312 N.C. at 563, 324 S.E.2d at 249.\nAs outlined in our foregoing analysis, defendant failed to show that absent the admission of the disputed testimony the jury probably would have returned a different verdict. Thus, defendant also failed to show that he was prejudiced by trial counsel\u2019s failure to object to the admission of the disputed testimony.\nThis argument is without merit.\nDefendant has failed to argue his remaining assignments of error, and they are deemed abandoned. N.C. R. App. P. 28(b)(6) (2009).\nNO ERROR.\nJudges HUNTER, ROBERT C. and GEER concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Susan K. Hackney, for the State.", "Kimberly R Hoppin, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE MOSEL McCLARY, Defendant\nNo. COA09-102\n(Filed 7 July 2009)\n1. Indecent Liberties\u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 writing sexually graphic letter \u2014 purpose of arousing or gratifying sexual desire\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of taking indecent liberties with a child even though defendant contends the State presented insufficient evidence that he took or attempted to take an indecent liberty with the juvenile or that defendant\u2019s action was for the purpose of arousing or gratifying sexual desire because: (1) the Court of Appeals has specifically rejected the argument that the utterance of mere words, no matter how reprehensible, does not constitute the taking of an indecent liberty with a child; (2) the variety of acts included under N.C.G.S. \u00a7 14-202.1(a) demonstrates that the scope of the statute\u2019s protection is to \u201cencompass more types of deviant behavior\u201d and provide children with broader protection than that available under statutes proscribing other sexual acts; (3) taking the evidence in the light most favorable to the State, defendant gave the victim a letter containing sexually graphic language for the purpose of soliciting sexual intercourse and oral sex; (4) in light of the sexually graphic and grossly improper nature of the letter, the State presented sufficient evidence for a jury to reasonably conclude that defendant willfully took indecent liberties with the victim by writing and giving her the letter; (5) the requirement that defendant\u2019s actions were for the purpose of arousing or gratifying sexual desire may be inferred from the evidence of defendant\u2019s actions; and (6) the completion of defendant\u2019s ultimate desired act, having sexual intercourse and oral sex with the victim, was not required in order to allow the jury to reasonably infer that defendant\u2019s acts of writing and delivering the letter to the victim were for the.purpose of arousing or gratifying sexual desire.\n2. Evidence\u2014 prior crimes or bad acts \u2014 testimony\u2014sexual letter given to another girl\nThe trial court did not commit plain error in a taking indecent liberties with a child case by admitting into evidence a statement by the victim regarding a prior letter allegedly given by defendant to another girl because: (1) assuming arguendo that the trial court erred in admitting this testimony, the error did not rise to plain error since uncorroborated testimony of the victim is sufficient to convict under N.C.G.S. \u00a7 14-202.1 if the testimony establishes all of the elements of the offense; (2) the victim\u2019s testimony that \u2018 defendant delivered the letter to her, defendant\u2019s use of sexually graphic language in the letter, and defendant\u2019s overt solicitation of sexual acts constituted substantial evidence showing defendant\u2019s willful taking of an indecent liberty with an underlying purpose of arousing or gratifying his sexual desire; and (3) defendant failed to show that the jury probably would have returned a different verdict absent the disputed testimony.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object\nDefendant did not receive ineffective assistance of counsel in an indecent liberties case based on trial counsel\u2019s failure to object to the admission of disputed testimony because defendant failed to show that absent the admission of the disputed testimony the jury probably would have returned a different verdict.\nAppeal by defendant from judgment entered 29 May 2008 by Judge Thomas D. Haigwood in Wayne County Superior Court. Heard in the Court of Appeals 10 June 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Susan K. Hackney, for the State.\nKimberly R Hoppin, for defendant-appellant." }, "file_name": "0169-01", "first_page_order": 195, "last_page_order": 203 }