{ "id": 4175275, "name": "STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY", "name_abbreviation": "State v. Fraley", "decision_date": "2010-02-16", "docket_number": "No. COA09-785", "first_page": "457", "last_page": "468", "citations": [ { "type": "official", "cite": "202 N.C. App. 457" } ], "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": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "year": 2006, "pin_cites": [ { "page": "286", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "627 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635299 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0265-01" ] }, { "cite": "651 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639564 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "287", "parenthetical": "citing State v. Greene, 324 N.C. 1, 11, 376 S.E.2d 430, 437 (1989), vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990)" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0279-01" ] }, { "cite": "648 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639089 ], "year": 2007, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0556-01" ] }, { "cite": "653 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639967 ], "year": 2007, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0552-01" ] }, { "cite": "521 U.S. 844", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 916080 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "851-52" }, { "page": "2335" }, { "page": "885" } ], "opinion_index": 0, "case_paths": [ "/us/521/0844-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "citing Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "563", "parenthetical": "citing Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 8, "year": 1984, "pin_cites": [ { "page": "687" }, { "parenthetical": "internal quotations and citations omitted" }, { "parenthetical": "internal quotations and citations omitted" }, { "page": "695" }, { "page": "2068-69" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "316", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "557 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "354 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138455 ], "year": 2001, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0131-01" ] }, { "cite": "176 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301519 ], "year": 2006, "pin_cites": [ { "page": "688" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0678-01" ] }, { "cite": "301 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "76", "parenthetical": "holding that the defendant could not assign error to testimony elicited by his counsel during a cross-examination of the State's witness" } ], "opinion_index": 0 }, { "cite": "308 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710824 ], "year": 1983, "pin_cites": [ { "page": "177", "parenthetical": "holding that the defendant could not assign error to testimony elicited by his counsel during a cross-examination of the State's witness" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0169-01" ] }, { "cite": "108 L. Ed. 2d 603", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "110 S. Ct. 1465", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1022", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5540, 5547, 5516, 5166, 5366, 4823, 5560 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1022-04", "/us/494/1022-06", "/us/494/1022-03", "/us/494/1022-05", "/us/494/1022-01", "/us/494/1022-02", "/us/494/1022-07" ] }, { "cite": "376 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "324 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485742 ], "year": 1989, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0001-01" ] }, { "cite": "186 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156410 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "319", "parenthetical": "citing State v. Greene, 324 N.C. 1, 11, 376 S.E.2d 430, 437 (1989), vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990)" }, { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0308-01" ] }, { "cite": "431 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1639 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "154" }, { "page": "1736" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/us/431/0145-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203, 212 (1977)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660-61", "parenthetical": "quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203, 212 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "year": 1997, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] }, { "cite": "600 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "36", "parenthetical": "quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000067 ], "year": 2004, "pin_cites": [ { "page": "784", "parenthetical": "quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0777-01" ] }, { "cite": "294 P.2d 856", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10511554 ], "year": 1956, "pin_cites": [ { "page": "863" } ], "opinion_index": 0, "case_paths": [ "/p2d/294/0856-01" ] }, { "cite": "604 F.2d 221", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 22714 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/604/0221-01" ] }, { "cite": "750 N.W.2d 111", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8235782 ], "year": 2008, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nw2d/750/0111-01" ] }, { "cite": "897 P.2d 1224", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10345734 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "1226" }, { "page": "1226" } ], "opinion_index": 0, "case_paths": [ "/p2d/897/1224-01" ] }, { "cite": "910 N.E.2d 757", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "761", "parenthetical": "citing Webster's Ninth New Collegiate Dictionary 59 (1988)" }, { "page": "761" } ], "opinion_index": 0 }, { "cite": "392 Ill. App. 3d 163", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4287165 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "167", "parenthetical": "citing Webster's Ninth New Collegiate Dictionary 59 (1988)" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/392/0163-01" ] }, { "cite": "117 Stat. 650", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "994 So.2d 293", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 8202206 ], "year": 2007, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/so2d/994/0293-01" ] }, { "cite": "771 N.E.2d 710", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 9411733 ], "year": 2002, "pin_cites": [ { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/ne2d/771/0710-01" ] }, { "cite": "97 Md. App. 151", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 4387655 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "166" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/md-app/97/0151-01" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "year": 1980, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "677 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "450", "parenthetical": "quoting Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)" } ], "opinion_index": 0 }, { "cite": "363 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151610 ], "year": 2009, "pin_cites": [ { "page": "330", "parenthetical": "quoting Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0322-01" ] }, { "cite": "679 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "861" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2007, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "573 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "869", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511364 ], "year": 2002, "pin_cites": [ { "page": "596", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0591-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "539 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "637", "parenthetical": "quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135860 ], "year": 2000, "pin_cites": [ { "page": "216", "parenthetical": "quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0211-01" ] }, { "cite": "185 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210461 ], "year": 2007, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0472-01" ] }, { "cite": "680 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "261", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "117" }, { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "98" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "676 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "593" }, { "page": "594" }, { "page": "594" } ], "opinion_index": 0 }, { "cite": "187 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8374852 ], "year": 2007, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0472-01" ] } ], "analysis": { "cardinality": 1177, "char_count": 26671, "ocr_confidence": 0.754, "pagerank": { "raw": 7.277973438751051e-08, "percentile": 0.43329997231498824 }, "sha256": "f5bf9290be351fca960b9152c7ba3a3c8b9ee476be96ff19ec7be9c60eda1f73", "simhash": "1:933604a27fbf065e", "word_count": 4529 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY" ], "opinions": [ { "text": "CALABRIA, Judge.\nCharles Daniel Fraley (\u201cdefendant\u201d) appeals a judgment entered upon a jury verdict finding him guilty of soliciting a person the defendant believed to be a child by means of a computer for the purpose of committing an unlawful sex act. We find no error.\nI. BACKGROUND\nOn 7 December 2007, defendant, a married father of a nine-year-old daughter, logged on to the Yahoo Internet chat room titled NC Romance (\u201cNC Romance\u201d). Defendant did not log on using his real name, but instead used the pseudonym \u201cmoonrakerlrain.\u201d Detective Kelly Marshburn (\u201cDetective Marshburn\u201d), a cyber crimes detective with the Raleigh Police Department (\u201cRPD\u201d), also logged on to NC Romance that day. As part of her duties with the RPD, Detective Marshburn signed on to NC Romance as \u201ccassia dutra\u201d (\u201cCassia\u201d). Detective Marshburn adopted the persona of Cassia, a 14 year-old-girl who lived with her mother in Raleigh near Crabtree Valley Mall (\u201cthe mall\u201d), in order to see if someone would solicit a child for sex using a computer.\nAt 2:50 p.m. on 7 December 2007, defendant made his initial contact with Cassia in the NC Romance chat room. By 3:00 p.m., defendant asked Cassia if she was \u201clooking for a hook up.\u201d At 3:08 p.m., defendant asked Cassia if she would \u201clike [to] meet and have good sex,\u201d and then asked Cassia to send him a picture of herself over the Internet. Cassia sent defendant three pictures. The pictures were actually photographs of a female coworker at the RPD taken when the coworker was 14 years old. The coworker had given Detective Marshburn permission to use the photos. When defendant received the pictures, he replied to Cassia, \u201cyou look pretty.\u201d Defendant then sent two pictures of himself to Cassia. In one photo, defendant was pictured wearing only a small bathing suit and sunglasses, and in the other, defendant was wearing military fatigues. Defendant then told Cassia, \u201cyou look hot to [sic] ... do you want to get together?\u201d When Cassia asked how old he was, he replied that he was 32 and asked how old Cassia was. When she answered that she was 14, defendant stated that he thought she was older. However, defendant continued to chat with Cassia online for nearly 30 minutes. During this time, defendant asked Cassia where she lived, joked that he could \u201chook up\u201d with her and her mother, and suggested meeting Cassia in person so they could \u201cgo somewhere and park.\u201d\nOn 12 December 2007, defendant logged on to NC Romance under the pseudonym \u201cdan claussen.\u201d Defendant chatted with Cassia for nearly 50 minutes. During the chat, Cassia again identified herself as being 14 years old. Defendant expressed interest in meeting Cassia and asked her, \u201cwhat do you want to do when we meet?\u201d When Cassia asked what defendant wanted to do, he answered, \u201cthat is up to you sweetie[.]\u201d Defendant suggested that he and Cassia meet at 1:00 p.m. on 13 December, and Cassia agreed. He stated, \u201cI get the feeling that you are wanting to talk about sex[.]\u201d Cassia said \u201csure,\u201d and defendant then stated that sex was something he would talk about in person. Defendant then asked Cassia if she was a virgin and also asked for her telephone number. Cassia gave him a number that, unbeknownst to defendant, was a specific undercover number the RPD would use for Detective Marshbum\u2019s cases. Defendant said he would call Cassia later that evening, and he and Cassia also agreed to meet at the food court at the mall the next day. On 13 December 2007, defendant sent Cassia an offline instant message stating, \u201chey sweetie ... sorry I didn\u2019t call, I will still be there at 1 today and I hope to see you there, bye for now sweetie.\u201d However, defendant and Cassia did not meet that day.\nAfter the online chat of 12 December 2007, Detective Marshburn was able to identify the IP address of \u201cmoonrakerlrain\u201d and \u201cdan claussen,\u201d and tracked it to a military base. Detective Marshburn then obtained a subpoena for the Internet carrier service, which identified defendant as the subscriber who had been chatting under those pseudonyms. On 16 December 2007, defendant sent three offline instant messages to Cassia. In one, he asked if they could meet the next night. Cassia did not respond and did not meet with defendant on 17 December. On 20 December 2007, defendant sent a chat message to Cassia stating that he was going to be away for Christmas and would \u201ccatch back up\u201d with Cassia after that. Cassia did not respond.\nOn 9 January 2008, defendant called Cassia on the telephone. During the course of the conversation, defendant told Cassia that she had a nice voice, and stated that he would come see her on Tuesday. He also stated that he could get in trouble for talking to Cassia because she was so young. When Cassia stated that she was nervous because she \u201cnever did this before,\u201d defendant replied that he had done so once, \u201cbut not with someone this young,\u201d adding that he and his previous paramour \u201cjust kissed.\u201d When Cassia asked if defendant liked younger girls, he replied in the affirmative because \u201c[t]hey just look better, feel better.\u201d Defendant and Cassia agreed to meet in person at the food court at the mall, and agreed to chat more online so that Cassia could tell defendant \u201ceverything that [she] want[ed] to do.\u201d\nDefendant and Cassia engaged in an online chat that day that lasted an hour. Defendant stated that he was still interested in meeting Cassia in person and asked again for her phone number, which she gave him. Defendant told Cassia that she \u201csound[ed] very sexy\u201d and asked her \u201cwhat all [she] want[ed] to get into\u201d when he saw her. When Cassia asked if they were going to kiss, defendant replied, \u201cif you want,\u201d and stated, \u201cwe can do more if you want.\u201d Defendant then asked if Cassia was \u201cturned on,\u201d and told her, \u201cI want you on top of me[.]\u201d When Cassia asked, \u201clike sex,\u201d defendant replied, \u201cyeah.\u201d Defendant agreed to meet Cassia that afternoon. Cassia stated that she would be wearing her pink New York Yankees baseball cap. However, they did not meet. Defendant sent a chat message to Cassia stating that the reason he could not meet was because he locked his keys in his vehicle.\nQn 15 January 2008, defendant sent an offline instant message to Cassia stating that he would meet her at 9:30 that morning. Later that morning, defendant and Cassia agreed that they would meet at 11:30 a.m. at the food court at the mall. At 10:00 that morning, Detective Marshburn was sitting at a table in the food court of the mall. Detective Regina Corcoran (\u201cDetective Corcoran\u201d) of the RPD portrayed Cassia. Detective Corcoran was sitting at another table in the food court approximately 25 feet from Detective Marshburn. Detective Corcoran was wearing jeans, a sweatshirt, and a pink New York Yankees baseball cap and was pretending to listen to an Ipod. As defendant entered the food court and sat down across from Detective Corcoran, Detective Marshburn and Sergeant Gary Hinnant (\u201cSergeant Hinnant\u201d) of the RPD approached defendant and asked to speak with him. At that point, defendant stated, \u201cI knew it.\u201d\nDefendant was arrested and indicted on a charge of solicitation of a child by computer to commit an unlawful sex act. The trial commenced on 17 February 2009. At the close of the State\u2019s evidence, defendant moved to dismiss the charge, and the trial court denied the motion. Defendant then presented evidence. There is nothing in the record or transcript showing defendant renewed his motion at the' close of all the evidence. On 19 February 2009, the jury returned a verdict of guilty. The trial court then sentenced defendant to a minimum term of four months to a maximum term of five months in the custody of the North Carolina Department of Correction and ordered defendant to register as a sex offender upon his release. Defendant appeals.\nII. MOTION TO DISMISS\nDefendant argues that the trial court erred in denying his motion to dismiss. We disagree.\nAs an initial matter, we note that defendant made a motion to dismiss at the conclusion of the State\u2019s case, but there is nothing in the record showing that he renewed his motion at the conclusion of all the evidence. N.C. R. App. P. 10(b)(3) (2009) states:\nA defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State\u2019s evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.\nGenerally, if a defendant failed to renew his motion to dismiss after he presented evidence, he is precluded from challenging the denial of his motion to dismiss on appeal. State v. Brunson, 187 N.C. App. 472, 476, 653 S.E.2d 552, 555 (2007). \u201cHowever, pursuant to N.C. R. App. P. 2, we will hear the merits of defendant\u2019s claim despite the rule violation because defendant also argues ineffective assistance of counsel based on counsel\u2019s failure to make the proper motion to dismiss.\u201d State v. Gayton-Barbosa,-N.C. App.-,-, 676 S.E.2d 586, 593 (2009).\nWe review a trial court\u2019s denial of a motion to dismiss criminal charges de novo, to determine \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \u201cSubstantial evidence is evidence that a reasonable mind might find adequate to support a conclusion.\u201d State v. Hargrave,-N.C. App.-, \u2014\u2022, 680 S.E.2d 254, 261 (2009) (citation omitted). \u201cThe 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. ...\u201d Powell, 299 N.C. at 99, 261 S.E.2d at 117. \u201c[C]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[.]\u201d State v. Prush, 185 N.C. App. 472, 478, 648 S.E.2d 556, 560 (2007). \u201c \u2018The test of the sufficiency of the evidence on a motion to dismiss is the same whether the evidence is direct, circumstantial, or both. All evidence actually admitted, both competent and incompetent, which is favorable to the State must be considered.\u2019 \u201d State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000) (quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)). \u201cIn addition, the defendant\u2019s evidence should be disregarded unless it is favorable to the State or does not conflict with the State\u2019s evidence.\u201d State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).\nThe crime of solicitation of a child by computer to commit an unlawful sex act is defined as follows:\nA person is guilty of solicitation of a child by a computer if the person is 16 years of age or older and the person knowingly, with the intent to commit an unlawful sex act, entices, advises, coerces, orders, or commands, by means of a computer, a child who is less than 16 years of age and at least 3 years younger than the defendant, or 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 3 years younger than the defendant, to meet with the defendant or any other person for the purpose of committing an unlawful sex act. Consent is not a defense to a charge under this section.\nN.C. Gen. Stat. \u00a7 14-202.3(a) (2007).\nIn the instant case, defendant was 32 years old and Cassia stated she was 14 years of age. On 7 December 2007, defendant and Cassia engaged in a chat on NC Romance. During the chat, defendant asked Cassia if she was \u201clooking for a hook up.\u201d When Cassia responded that she liked to \u201chang out and have fun,\u201d defendant asked if she was into \u201canything sexual\u201d and asked her if she wanted to \u201chave good sex with [defendant].\u201d Defendant and Cassia then exchanged photos and defendant asked Cassia her age. When Cassia replied that she was fourteen, defendant stated, \u201coh, i [sic] am sorry, I thought you were older,\u201d but later asked, \u201cso, if we were to meet, how would we do it?\u201d During the same chat, defendant subsequently asked Cassia if she wanted to \u201cgo somewhere and park\u201d and \u201csee how it goes.\u201d\nOn 12 December 2007, defendant, now using the pseudonym \u201cdan claussen,\u201d and Cassia engaged in another chat on NC Romance. Defendant again asked Cassia her age. When Cassia responded that she was fourteen, defendant stated, \u201cyou are underage, and i [sic] am not .... I am apprehensive about meeting you in person . . . .\u201d Defendant then stated that he and Cassia could meet in person \u201cand see where it goes from there\u201d and do things like \u201ccatch a movie at the mall, or just hang out, or find other things to get into.\u201d When Cassia asked what defendant meant by that statement, defendant responded, \u201cI get the feeling that you are wanting to talk about sex ...,\u201d and that \u201c[t]hat is something we could talk about in person if you like.\u201d Defendant then agreed to meet Cassia the next day at the mall. Before signing off, defendant asked Cassia, \u201care you a virgin?\u201d Defendant signed off by telling Cassia, \u201cok, bye sweetie.\u201d\nOn 9 January 2008, defendant spoke by telephone with Detective Marshburn. Defendant identified himself by his middle name, Dan, and Detective Marshburn identified herself as Cassia. During that conversation, defendant told Cassia she had a \u201cnice voice.\u201d He then stated, \u201cI can just get in trouble for talking to you . . . [c]ause [sic] you\u2019re young.\u201d When Cassia stated that she was nervous because she \u201cnever did this before,\u201d defendant said \u201c[w]ell, I have once, but not with someone this young[.]\u201d When Cassia asked defendant what he did on that prior occasion, defendant said, \u201cwe just kissed and stuff.\u201d Defendant asked Cassia if she liked \u201colder guys.\u201d She replied in the affirmative, then asked defendant if he liked \u201cyounger girls.\u201d He replied, \u201c[y]eah, I do . .. [because] [t]hey just look better, feel better....\u201d Defendant and Cassia engaged in another chat on NC Romance that day. Defendant told Cassia, \u201cyou sound very sexy\u201d and stated he wanted \u201cto do whatever you are curious about or want to try.\u201d When Cassia asked defendant if they were going to kiss, defendant replied, \u201cif you want ... we can do more if you want[.]\u201d Defendant then asked Cassia, \u201care you turned on at all right now?\u201d Defendant stated that he was also turned on and told Cassia, \u201cI want you on top of me Cassia replied, \u201clike sex,\u201d and defendant answered \u201cyeah.\u201d On 15 January 2008, defendant and Detective Marshbum engaged in another chat on NC Romance. Defendant agreed to meet Cassia at the mall at 11:30 a.m. that day. Substantial evidence sustained the jury verdict of guilty of solicitation of a person the defendant believed to be a child, by means of a computer, for the purpose of committing an unlawful sex act.\nDefendant argues that there was no evidence that he \u201centiced or advised\u201d Detective Marshburn to meet with him within the meaning of N.C. Gen. Stat. \u00a7 14-202.3(a). We disagree.\nDefendant does not suggest definitions for these words. They are not defined in N.C. Gen. Stat. \u00a7 14-202.3(a), nor can we find any case law in our state providing us with a definition. When a word used in a statute is not explicitly defined by that statute, the General Assembly is presumed to have used the word to convey its natural and ordinary meaning. State v. Worley,- N.C. App.-,-, 679 S.E.2d 857, 861 (2009). \u201c \u2018The best indicia of [the legislature\u2019s] intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.\u2019 \u201d State v. Abshire, 363 N.C. 322, 330, 677 S.E.2d 444, 450 (2009) (quoting Coastal Ready-Mix Concrete Co. v. Bd. of Comm\u2019rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)). The purpose of statutes such as N.C. Gen. Stat. \u00a7 14-202.3 is to protect children against exploitation. Outmezguine v. State, 97 Md. App. 151, 166, 627 A.2d 541, 548 (1993); Bone v. State, 771 N.E.2d 710, 717 (Ind. App. 2002); Ward v. State, 994 So.2d 293, 300 (Ala. Crim. App. 2007); PROTECT Act, Pub. L. No. 108-21, \u00a7 1(a), 117 Stat. 650, 650 (2003).\n\u201cWebster\u2019s Ninth New Collegiate Dictionary... defines \u2018advise\u2019 as \u2018recommendf.]\u2019 \u201d People v. Hatcher, 392 Ill. App. 3d 163, 167, 910 N.E.2d 757, 761 (2009) (citing Webster\u2019s Ninth New Collegiate Dictionary 59 (1988)).\nEntice has been defined as: \u201cto lure; to lead on by exciting hope of reward or pleasure; to tempt,\u201d Webster\u2019s New 20th Century Dictionary (2d ed. 1960), and \u201c[t]o wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce.... To lure, induce, tempt, incite, or persuade a person to do a thing.\u201d Black\u2019s Law Dictionary 531 (6th ed. 1990).\nState v. Scieszka, 897 P.2d 1224, 1226 (Utah Ct. App. 1995); State v. Hansen, 750 N.W.2d 111, 114 (Iowa 2008); Government of Virgin Islands v. Berry, 604 F.2d 221, 225 n. 6 (1979), superseded on other grounds by statute, 14 V.I.C. \u00a7 1052(b) (2009); Bayouth v. State, 294 P.2d 856, 863 (Okla. Crim. App. 1956). We believe that defendant\u2019s words to Cassia fall within these rather broad definitions, particularly when the entire online and telephone conversations are considered. Hatcher, 392 Ill. App. 3d at 167, 910 N.E.2d at 761. \u201cWe do not find [the above] definitions at all inconsistent with defendant\u2019s conduct. On the contrary, they accurately describe his course of conduct.\u201d Scieszka, 897 P.2d at 1226. Defendant\u2019s assignment of error is overruled.\nIII. PLAIN ERROR\nDefendant argues that the trial court committed plain error in allowing Detective Marshburn to give opinion testimony. We disagree.\nUnder the plain error standard of review, defendant has the burden of showing: \u201c \u2018(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.\u2019 \u201d State v. McNeil, 165 N.C. App. 777, 784, 600 S.E.2d 31, 36 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). \u201cIndeed, even when the \u2018plain error\u2019 rule is applied, \u2018[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.\u2019 \u201d State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203, 212 (1977)).\n\u201cStatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.\u201d State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007) (citing State v. Greene, 324 N.C. 1, 11, 376 S.E.2d 430, 437 (1989), vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990)); N.C. Gen. Stat. \u00a7 15A-1443(c) (2007) (\u201cA defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.\u201d); see also State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983) (holding that the defendant could not assign error to testimony elicited by his counsel during a cross-examination of the State\u2019s witness).\nIn the instant case, the following exchange occurred when defendant\u2019s counsel cross-examined Detective Marshburn:\nQ: And one last question. In your last chat [defendant] said he was coming to Raleigh, which is State\u2019s Exhibit Number 17.\nA: Um-hum.\nQ: Just to be sure, there is no specific references [sic] to any sex act; is that correct?\nA: That\u2019s correct.\nQ: So you don\u2019t know why he was coming to Raleigh on that day.\nA: It is my opinion he was coming to Raleigh to have sex with a 14 year old.\nQ: But you don\u2019t know that.\nA: That\u2019s my opinion.\nEven assuming arguendo the elicited statements above are error, defendant cannot be prejudiced by them as a matter of law because he invited them. Gobal, 186 N.C. App. at 319, 651 S.E.2d at 287. Defendant\u2019s assignment of error is overruled.\nIV. INEFFECTIVE ASSISTANCE OF COUNSEL (\u201cIAC\u201d)\nIn the alternative, defendant urges this Court to hold that he was denied the effective assistance of counsel because his trial counsel: (1) failed to renew his motion to dismiss at the close of all the evidence, and (2) elicited and failed to move to strike Detective Marshburn\u2019s lay opinion testimony. We disagree.\n\u201cClaims of ineffective assistance of counsel are . . . most properly raised in a motion for appropriate relief.\u201d State v. Jones, 176 N.C. App. 678, 688, 627 S.E.2d 265, 271 (2006). \u201cOur Supreme Court has held that an ineffective assistance claim brought on direct review will be decided on the merits only \u2018when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u2019 \u201d Id. (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)).\n\u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). \u201cDeficient performance may be established by showing that counsel\u2019s representation fell below an objective standard of reasonableness.\u201d Id. (internal quotations and citations omitted). \u201cGenerally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Id. (internal quotations and citations omitted).\nAs for defendant\u2019s first IAC argument, if the evidence is sufficient to support a conviction, the defendant is not prejudiced by his counsel\u2019s failure to make a motion to dismiss at the close of all the evidence. Gayton-Barbosa,-N.C. App. at-, 676 S.E.2d at 594. Since we have found that the evidence in the instant case was sufficient to support the jury\u2019s verdict, \u201cdefendant has not shown counsel\u2019s assistance to be constitutionally inadequate, [and thus his] assignment of error is without merit.\u201d Id. at-, 676 S.E.2d at 594.\nAs for defendant\u2019s second IAC argument, \u201c[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable 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) (citing Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698). The online chats and the telephone call between defendant and Detective Marshbum provide overwhelming evidence that defendant thought Detective Marshbum was a 14-year-old girl and that defendant was meeting her at the mall for a sexual encounter. Even if defendant\u2019s counsel had not elicited or had moved to strike Detective Marshbum\u2019s lay opinion testimony, there was no reasonable probability that a different outcome would have resulted.\nV. CONCLUSION\nDefendant\u2019s remaining assignments of error not argued in his brief are abandoned. N.C. R. App. P 28(b)(6) (2009). Defendant received a fair trial free from error.\nNo error.\nJudges WYNN and BEASLEY concur.\n. \u201cChat rooms\u201d and \u201cinstant messenger\u201d are types of Internet services that allow users to engage in real time dialogue \u201cby typing messages to one another that appear almost immediately on the others\u2019 computer screens.\u201d Reno v. American Civil Liberties Union, 521 U.S. 844, 851-52, 117 S. Ct. 2329, 2335, 138 L. Ed. 2d 874, 885 (1997).\n. After defendant\u2019s offense date, our General Assembly adopted a series of amendments to this statute, including, inter alia, enticing \u201cby means of a computer or any other device capable of electronic data storage or transmission,\u201d and stating that the age difference between the defendant and the victim or perceived victim is to be five years. See N.C. Gen. Stat. \u00a7 14-202.3(a) (2009).", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.", "Mark Montgomery, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY\nNo. COA09-785\n(Filed 16 February 2010)\n1. Sexual Offenses\u2014 solicitation of child by means of computer for purpose of committing unlawful sex act \u2014 motion to dismiss \u2014 sufficiency of evidence\nA de novo review revealed the trial court did not err by denying defendant\u2019s motion to dismiss the charge of solicitation of a person believed to be a child by means of a computer for the purpose of committing an unlawful sex act under N.C.G.S. \u00a7 14-202.3(a) based on alleged insufficient evidence that defendant \u201centiced or advised\u201d the undercover detective to meet with him. Defendant\u2019s words, including his entire online and telephone conversations, fell within these definitions and accurately described his course of conduct.\n2. Evidence\u2014 cross-examination \u2014 opinion testimony \u2014 invited error\nThe trial court did not commit plain error in a case involving the solicitation of a person believed to be a child by means of a computer for the purpose of committing an unlawful sex act by allowing a detective to give opinion testimony that defendant was going to have sex with a fourteen-year-old. Even assuming the elicited statements were error, defendant cannot be prejudiced .by them as a matter of law when he invited them during cross-examination.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 failing to renew motion to dismiss \u2014 eliciting and failing to move to strike testimony\nDefendant did not receive ineffective assistance of counsel based on his trial counsel\u2019s failing to renew his motion to dismiss at the close of all evidence and by eliciting and failing to move to strike a detective\u2019s lay opinion testimony. There was no reasonable probability that a different outcome would have resulted absent the alleged errors.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAssignments of error defendant failed to argue in his brief were deemed abandoned under N.C. R. App. P. 28(b)(6).\nAppeal by defendant from judgment entered 17 February 2009 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 8 December 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.\nMark Montgomery, for defendant-appellant." }, "file_name": "0457-01", "first_page_order": 485, "last_page_order": 496 }