{ "id": 4174351, "name": "STATE OF NORTH CAROLINA v. YASMIN PECOLIA BREATHETTE, Defendant", "name_abbreviation": "State v. Breathette", "decision_date": "2010-03-02", "docket_number": "No. COA09-1007", "first_page": "697", "last_page": "706", "citations": [ { "type": "official", "cite": "202 N.C. App. 697" } ], "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": "94 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1956, "pin_cites": [ { "page": "406" }, { "page": "406", "parenthetical": "holding that where \"law of self-defense was irrelevant to the case, and had no application to the facts,\" trial court properly prevented trial counsel from arguing defense to jury" } ], "opinion_index": 0 }, { "cite": "244 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219491 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "412" }, { "page": "412-13" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0407-01" ] }, { "cite": "175 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "583", "parenthetical": "quoting State v. Crisp, 244 N.C. 407, 412, 94 S.E.2d 402, 406 (1956)" } ], "opinion_index": 0 }, { "cite": "277 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561889 ], "year": 1970, "pin_cites": [ { "page": "93", "parenthetical": "quoting State v. Crisp, 244 N.C. 407, 412, 94 S.E.2d 402, 406 (1956)" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0086-01" ] }, { "cite": "231 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "year": 1977, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "cite": "141 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "474", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "264 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572977 ], "year": 1965, "pin_cites": [ { "page": "349", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0348-01" ] }, { "cite": "678 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "226", "parenthetical": "quoting State v. Arnold, 264 N.C. 348, 349, 141 S.E.2d 473, 474 (1965) (per curiam)" } ], "opinion_index": 0 }, { "cite": "363 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151595 ], "year": 2009, "pin_cites": [ { "page": "355", "parenthetical": "quoting State v. Arnold, 264 N.C. 348, 349, 141 S.E.2d 473, 474 (1965) (per curiam)" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0352-01" ] }, { "cite": "343 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525293 ], "year": 1986, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0620-01" ] }, { "cite": "58 L. Ed. 2d 124", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "439 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11354337, 11354755, 11354505, 11355114, 11354701, 11354576, 11355217, 11354834, 11355026, 11354643, 11354933, 11354429 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/439/0830-01", "/us/439/0830-07", "/us/439/0830-03", "/us/439/0830-11", "/us/439/0830-06", "/us/439/0830-04", "/us/439/0830-12", "/us/439/0830-08", "/us/439/0830-10", "/us/439/0830-05", "/us/439/0830-09", "/us/439/0830-02" ] }, { "cite": "241 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "294 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573223 ], "year": 1978, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0382-01" ] }, { "cite": "273 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563497, 8563530, 8563475, 8563571, 8563603 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0102-02", "/nc/301/0102-03", "/nc/301/0102-01", "/nc/301/0102-04", "/nc/301/0102-05" ] }, { "cite": "267 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551721 ], "year": 1980, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0658-01" ] }, { "cite": "10 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "218 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616782 ], "year": 1940, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0258-01" ] }, { "cite": "798 So.2d 632", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9474411 ], "year": 2001, "pin_cites": [ { "page": "634", "parenthetical": "holding trial court did not err in refusing to give mistake of age instruction to jury in sexual battery case because mistake of age defense is not valid defense to sex crimes designed to protect children" } ], "opinion_index": 0, "case_paths": [ "/so2d/798/0632-01" ] }, { "cite": "142 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "694", "parenthetical": "observing that legislative purpose of \u00a7 14-202.1 was to \"supplement [existing law] and to give even broader protection to children\"" } ], "opinion_index": 0 }, { "cite": "264 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575136 ], "year": 1965, "pin_cites": [ { "page": "749", "parenthetical": "observing that legislative purpose of \u00a7 14-202.1 was to \"supplement [existing law] and to give even broader protection to children\"" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0746-01" ] }, { "cite": "370 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "407", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518221 ], "year": 1988, "pin_cites": [ { "page": "766", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0753-01" ] }, { "cite": "339 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "809" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522298 ], "year": 1986, "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0599-01" ] }, { "cite": "171 L. Ed. 2d 889", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2008, "opinion_index": 0 }, { "cite": "66 M.J. 39", "category": "reporters:specialty", "reporter": "M.J.", "case_ids": [ 4047772 ], "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/mj/66/0039-01" ] }, { "cite": "100 Nev. 280", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 2408840 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "282-83", "parenthetical": "holding mistake of fact as to victim's age was not valid defense to statutory offense of \"willful\" child abuse" }, { "page": "599", "parenthetical": "holding mistake of fact as to victim's age was not valid defense to statutory offense of \"willful\" child abuse" } ], "opinion_index": 0, "case_paths": [ "/nev/100/0280-01" ] }, { "cite": "Cal. Penal Code \u00a7 288", "category": "laws:leg_statute", "reporter": "Cal. Code", "year": 2009, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "205 Cal. Rptr. 492", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "year": 1984, "pin_cites": [ { "page": "496" }, { "page": "499" } ], "opinion_index": 0 }, { "cite": "685 P.2d 52", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "56" }, { "page": "59" } ], "opinion_index": 0 }, { "cite": "36 Cal. 3d 638", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 4467767 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/36/0638-01" ] }, { "cite": "96 L. Ed. 288", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1952, "pin_cites": [ { "parenthetical": "noting \"[e]xceptions [to mens rea requirement] . .. include sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent\"" } ], "opinion_index": 0 }, { "cite": "342 U.S. 246", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 641097 ], "year": 1952, "pin_cites": [ { "parenthetical": "noting \"[e]xceptions [to mens rea requirement] . .. include sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent\"" } ], "opinion_index": 0, "case_paths": [ "/us/342/0246-01" ] }, { "cite": "33 Colum. L. Rev. 55", "category": "journals:journal", "reporter": "Colum. L. Rev.", "year": 1933, "pin_cites": [ { "page": "73-74" } ], "opinion_index": 0 }, { "cite": "679 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "900", "parenthetical": "\"[I]n effectuating legislative intent, it is the duty of the courts to give effect to the words actually used in a statute and not to delete words used or to insert words not used.\"" } ], "opinion_index": 0 }, { "cite": "361 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "321 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566911 ], "year": 1987, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0102-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "122 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "771" } ], "opinion_index": 0 }, { "cite": "256 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570691 ], "year": 1961, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0027-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-190.17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "second degree sexual exploitation of a minor" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-190.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "first degree sexual exploitation of a minor" } ], "opinion_index": 0 }, { "cite": "90 S.E. 441", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "448-49" } ], "opinion_index": 0 }, { "cite": "172 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254262 ], "year": 1916, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/nc/172/0419-01" ] }, { "cite": "546 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "573", "parenthetical": "quoting Moose v. Board of Comm'rs of Alexander County, 172 N.C. 419, 433, 90 S.E. 441, 448-49 (1916)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135872 ], "year": 2001, "pin_cites": [ { "page": "500", "parenthetical": "quoting Moose v. Board of Comm'rs of Alexander County, 172 N.C. 419, 433, 90 S.E. 441, 448-49 (1916)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0495-01" ] }, { "cite": "328 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "313 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718465 ], "year": 1985, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0230-01" ] }, { "cite": "358 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "320 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727097 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0485-01" ] }, { "cite": "351 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "320", "parenthetical": "internal citation omitted" }, { "page": "320" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359068 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0544-01" ] }, { "cite": "561 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220194, 219977, 220046, 219926, 219993 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0291-04", "/nc/355/0291-01", "/nc/355/0291-05", "/nc/355/0291-02", "/nc/355/0291-03" ] }, { "cite": "551 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11353786 ], "year": 2001, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0044-01" ] }, { "cite": "266 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "585" } ], "opinion_index": 0 }, { "cite": "300 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559928 ], "year": 1980, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0150-01" ] }, { "cite": "432 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "129" }, { "page": "129" } ], "opinion_index": 0 }, { "cite": "334 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530709 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "364" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0356-01" ] } ], "analysis": { "cardinality": 1097, "char_count": 23607, "ocr_confidence": 0.762, "pagerank": { "raw": 1.4018693819386178e-07, "percentile": 0.6448592176609524 }, "sha256": "f6b1de8e8ad12488ff5f097e23b84e43586cfeac8ace062565f082e5f0f67861", "simhash": "1:4af9d502622d861e", "word_count": 3988 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. YASMIN PECOLIA BREATHETTE, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Yasmin Pecolia Breathette appeals her convictions for taking indecent liberties with a minor. Defendant argues on appeal that the trial court erred by not giving the jury her requested instruction that mistake of age is a valid defense to the offense of indecent liberties. We conclude that mistake of age is not a defense applicable to the charge, and, therefore, the trial court properly refused to instruct the jury on the defense. Consequently, we find no error.\nFacts\nThe State presented evidence at trial tending to establish the following facts: B.W. (\u201cBeth\u201d) was born in March 1995 and lived in Taylors, South Carolina with her mother. When Beth was 13 years old she met defendant, who was 19 at the time, on the social networking website MySpace and the two began messaging. Beth\u2019s MySpace page indicated that she was 99 years old because she did not \u201cwant people to know [her] real age.\u201d When defendant asked how old Beth was, Beth told her that she was 17. The two discussed \u201cchilling\u201d together at defendant\u2019s apartment, exchanged cell phone numbers, and began texting and calling each other on a daily basis. Defendant, whose MySpace page indicated that she was a lesbian, asked Beth whether she was a lesbian, and Beth told her that she was gay. When texting or talking, they would sometimes discuss \u201csexual stuff.\u201d Sometimes Beth would initiate the sexual conversations and sometimes it was defendant.\nDefendant and Beth decided that they wanted to meet in person, so defendant drove from her apartment in Winston-Salem, North Carolina on 4 June 2008, picked up Beth at a designated spot, and drove back to Winston-Salem for the weekend. When defendant and Beth got back to defendant\u2019s apartment, they watched TV together and \u201c[t]ongue kiss[ed].\u201d\nThe next day, 5 June 2008, defendant took Beth over to her friend Francesca\u2019s house, where they stayed most of the day. While watching TV, defendant and Beth \u201cmade out\u201d on the couch and kissed. Later that night, defendant and Beth went back to defendant\u2019s apartment, where they ordered pizza and watched TV and movies. Defendant and Beth later got into defendant\u2019s bed, where Beth gave defendant a \u201chickey\u201d on her neck. Defendant kissed Beth\u2019s breast, digitally penetrated her vagina, and performed oral sex on her. After about 10 minutes, they went to sleep.\nDefendant and Beth got into an argument on Friday, 6 June 2008, because Beth was \u201cacting childish\u201d and \u201cgetting on [defendant\u2019s] nerves.\u201d Although defendant told Beth that she could not spend the night at defendant\u2019s apartment, Beth ultimately spent the night there. Defendant left for work on Saturday morning before Beth woke up and Beth texted and called defendant several times during the day, asking for a ride home. Defendant did not want to drive Beth home and the two fought over the phone while defendant was at work. When defendant\u2019s supervisor overheard her yelling loudly on the phone at work, she was fired from her job. Defendant came home, yelling at Beth that she made her lose her job. Defendant collected Beth\u2019s things, threw them out into the front yard, and locked her out of the apartment. Beth contacted Amanda, one of defendant\u2019s friends that she had met during the weekend, and Amanda let Beth spend Saturday night at her house.\nThe next day, 8 June 2008, Amanda dropped Beth off at Francesca\u2019s house, where Beth told Francesca\u2019s mother about her fight with defendant and that they had done \u201csexual stuff.\u201d Francesca\u2019s mother called the police, who came to get Beth. While there, the police interviewed Beth and she told them that she was 17. Officers took Beth to the police station, where she told them that nothing had happened. Beth\u2019s mother arrived in Winston-Salem that evening and drove her home.\nOfficer J.A. Sheets interviewed defendant on 9 June 2008, at her apartment. Defendant told him that she met Beth on MySpace and that they had met in person because they were interested in dating each other. Defendant also told Officer Sheets that Beth\u2019s MySpace page had been changed to indicate that she was 18, although it had originally indicated that she was 21. Defendant told Officer Sheets that they had \u201cfingered\u201d each other, but that only she had performed oral sex. Defendant later texted Beth, asking her why she did not tell defendant her \u201creal age.\u201d When Beth responded that she did not know why, defendant texted back that \u201c[Beth] was wrong.\u201d\nDefendant was charged with two counts of taking indecent liberties with a minor and one count each of first degree kidnapping, first degree sexual offense, and attempted second degree sexual offense. Defendant pled not guilty and a jury trial was conducted 13-15 April 2009. At the close of the State\u2019s evidence, defendant moved to dismiss all five charges. The trial court dismissed the charges of kidnapping, first degree sexual offense, and attempted second degree sexual offense, but denied the motion as to the two counts of taking indecent liberties. Defendant then testified that she first came into contact with Beth through MySpace in May 2008. Defendant also found Beth on \u201cdownylink.com,\u201d a \u201cstraight, gay, lesbian, and bisexual Website for people over the age of eighteen.\u201d Defendant explained that when she saw Beth on downylink.com, she believed that Beth was over 18 because the website requires all users to verify that they are 18 years old or over. The jury convicted defendant of both charges and the trial court sentenced defendant to two consecutive presumptive-range sentences of 14 to 17 months imprisonment, but suspended the second sentence and imposed 36 months of supervised probation. Defendant timely appealed to this Court.\nI. Jury Instructions\nA. Mistake of Age Defense\nIn a written request, defendant asked the trial court to instruct the jury that\n[i]f you do find that the defendant was both acting under a belief that the alleged victim was older than 15 years old and that such belief was reasonable, albeit mistaken, then it would be your duty to render a verdict of not guilty to the charges of taking indecent liberties with a child as the defendant lacked the requisite guilty mind to formulate the specific intent to commit the crime.\nDefendant argues that the trial court committed reversible error by not instructing the jury that mistake of age is a defense to the charge of taking indecent liberties with a minor.\nIf a request is made for an instruction that is a correct statement of the law and is supported by the evidence, the trial court must give the instruction, at least in substance. State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993). Failure to instruct on a substantive or material feature of the evidence and the applicable law generally results in reversible error. State v. Ward, 300 N.C. 150, 155, 266 S.E.2d 581, 585 (1980). Any defense raised by the evidence is deemed a substantial feature of the case and requires an instruction. State v. Smarr, 146 N.C. App. 44, 54, 551 S.E.2d 881, 888 (2001), disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002).\nThe State argues that the trial court properly refused to instruct the jury on the mistake of age defense as the defense is inapplicable to the crime of taking indecent liberties with a minor. Relying on Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305 (1986), aff'd, 320 N.C. 485, 358 S.E.2d 383 (1987), the State maintains that this Court has \u201cexpressly recognized\u201d that mistake of age is not a defense to indecent liberties. In Cinema I Video, this Court stated:\n[M]istake of age is not a defense to prosecution for first degree rape, G.S. 14-27.2(a)(l), nor to first-degree sexual offense, G.S. 14-27(a)(l). Moreover, mistake of age is not a defense to the offense of taking indecent liberties with a minor. G.S. 14-202.1.\nId. at 569, 351 S.E.2d at 320 (internal citation omitted) (emphasis added). Defendant vigorously argues in her reply brief that Cinema I Video\u2019s language that mistake of age is not a valid defense to indecent liberties is dicta and thus we are not bound by Cinema I Video.\n\u201cLanguage in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby.\u201d Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985). As our Supreme Court has explained, \u201c \u2018general expressions in every opinion are to be taken in connection with the case in which those expressions are used[;] [i]f they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented for decision.\u2019 \u201d State v. Jackson, 353 N.C. 495, 500, 546 S.E.2d 570, 573 (2001) (quoting Moose v. Board of Comm\u2019rs of Alexander County, 172 N.C. 419, 433, 90 S.E. 441, 448-49 (1916)).\nIn setting out the language at issue here, the Court in Cinema I Video was addressing whether two of North Carolina\u2019s child pornography statutes \u2014 -N.C. Gen. Stat. \u00a7 14-190.16 (first degree sexual exploitation of a minor) and N.C. Gen. Stat. \u00a7 14-190.17 (second degree sexual exploitation of a minor) \u2014 violated the plaintiffs\u2019 First Amendment and Due Process rights. 83 N.C. App. at 568, 351 S.E.2d at 320. The indecent liberties statute, N.C. Gen. Stat. \u00a7 14-202.1 (2009), was not one of the criminal statutes being challenged by the plaintiffs in Cinema I Video. Thus, the language in Cinema I Video that \u201cmistake of age is not a defense to the offense of taking indecent liberties with a minor\u201d was not necessary to the Court\u2019s decision regarding constitutionality of the child pornography statutes. Consequently, we are not bound by Cinema I Video in deciding this case where the precise issue \u2014 the applicability of the defense \u2014 \u201cis presented for decision.\u201d\nDefendant is correct that \u201c[t]his is a case of first impression,\u201d as North Carolina\u2019s courts have not specifically addressed whether mistake of age is a recognized defense to a charge of taking indecent liberties with a minor. Generally, \u201c[i]gnorance or mistake as to a matter of fact... is a defense if it negatives a mental state required to establish a material element of the crime . . . .\u201d Wayne R. LeFave, Substantive Criminal Law \u00a7 5.6, at 394 (2d ed. 2003). In turn, \u201c[w]hether a criminal intent is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design.\u201d State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768, 771 (1961).\nN.C. Gen. Stat. \u00a7 14-202.1 defines the offense of taking indecent liberties with a minor:\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; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.\nN.C. Gen. Stat. \u00a7 14-202.l(a)(l)-(2). The statute is unambiguous as to the elements of the crime: the State must prove that (1) the defendant was at least 16; (2) the defendant was five years older than the complainant; (3) the defendant willfully took or attempted to take an indecent liberty with the complainant; (4) the complainant was under 16 at the time the alleged act or attempted act occurred; and (5) the defendant\u2019s conduct was for the purpose of arousing or gratifying sexual desire. State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987).\nDefendant argues that a defendant\u2019s knowledge of the complainant\u2019s age is an element of taking indecent liberties with a minor, making mistake of age a valid defense to the crime. The plain language of N.C. Gen. Stat. \u00a7 14-202.1, however, does not support defendant\u2019s contention. The statute only requires that the complainant be \u201cunder the age of 16 years\u201d at the time of defendant\u2019s conduct constituting the offense. N.C. Gen. Stat. \u00a7 14-202.1(a), (b). There is no explicit mens rea requirement in N.C. Gen. Stat. \u00a7 14-202.1 as to the complainant\u2019s age. See State v. Watterson,-N.C. App. \u2014 ,-, 679 S.E.2d 897, 900 (2009) (\u201c[I]n effectuating legislative intent, it is the duty of the courts to give effect to the words actually used in a statute and not to delete words used or to insert words not used.\u201d).\n\u201cWhen conduct is made criminal because the victim is under a certain age, it is no defense that the defendant was ignorant of or mistaken as to the victim\u2019s age; and it matters not that the defendant\u2019s mistaken belief was reasonable.\u201d 1 Charles E. Torcia, Wharton\u2019s Criminal Law \u00a7 78, at 563-64 (15th ed. 1996); accord Rollin M. Perkins & Ronald N. Boyce, Criminal Law \u00a7 7, at 919 (3rd ed. 1982) (explaining that \u201c \u2018[c]rimes such as . . . carnal knowledge, seduction, and the like, where the offense depends upon the [victim]\u2019s being below a designated age ... do require a mens rea,\u2019 although \u00e1 reasonable mistake of fact as to [the victim\u2019s] age is no defense\u201d (quoting Francis B. Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 73-74 (1933))). See also Morissette v. United States, 342 U.S. 246, 251 n.8, 96 L. Ed. 288, 294 n.8 (1952) (noting \u201c[e]xceptions [to mens rea requirement] . .. include sex offenses, such as rape, in which the victim\u2019s actual age was determinative despite defendant\u2019s reasonable belief that the girl had reached age of consent\u201d).\nIn People v. Olsen, 36 Cal. 3d 638, 685 P.2d 52, 205 Cal. Rptr. 492 (1984), the California Supreme Court confronted a virtually identical issue of legislative intent to the one presented in this case, holding that a good faith, reasonable mistake of age was not a defense to a charge of \u201cwillfully\u201d committing \u201clewd or lascivious acts involving children.\u201d The California statute at issue in Olsen, similar to our indecent liberties statute, provides:\nAny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony....\nCal. Penal Code \u00a7 288(a) (2009) (emphasis added). Recognizing the \u201cexistence] [of] a strong public policy to protect children of tender years[,]\u201d the Olsen Court concluded that a mistake of age defense was \u201cuntenable,\u201d 36 Cal. 3d at 645, 685 P.2d at 56, 205 Cal. Rptr. at 496, and that \u201cone who commits lewd or lascivious acts with a child, even with a good faith belief that the child is [over the designated age], does so at his or her peril[,]\u201d id. at 649, 685 P.2d at 59, 205 Cal. Rptr. at 499. See also Childers v. State, 100 Nev. 280, 282-83, 680 P.2d 598, 599 (1984) (holding mistake of fact as to victim\u2019s age was not valid defense to statutory offense of \u201cwillful\u201d child abuse); United States v. Wilson, 66 M.J. 39, 43 (C.A.A.F.) (noting that \u201c[t]wenty-two states have no provision in their statutory framework for a mistake of fact defense when the sexual activity involves children: there is neither a mens rea with respect to age nor an explicit defense\u201d), cert. denied, \u2014 U.S.-, 171 L. Ed. 2d 889 (2008).\nThis Court has similarly noted \u201cthe legislative policy, inherent in [N.C. Gen. Stat. \u00a7 14-202.1], to provide broad protection to children from the sexual conduct of older persons, especially adults.\u201d State v. Hicks, 79 N.C. App. 599, 603, 339 S.E.2d 806, 809 (1986). Our Supreme Court has also recognized \u201cthe great breadth of protection against sexual contact the statute seeks to afford children and the reasons for it\u201d:\nUndoubtedly [N.C. Gen. Stat. \u00a7 14-202.l\u2019s] breadth is in recognition of the significantly greater risk of psychological damage to an impressionable child from overt sexual acts. We also bear in mind the enhanced power and control that adults, even strangers, may exercise over children who are outside the protection of home or school.\nState v. Banks, 322 N.C. 753, 766, 370 S.E.2d 398, 407 (1988) (citation and quotation marks omitted); accord State v. Harward, 264 N.C. 746, 749, 142 S.E.2d 691, 694 (1965) (observing that legislative purpose of \u00a7 14-202.1 was to \u201csupplement [existing law] and to give even broader protection to children\u201d). We conclude, therefore, that a defendant\u2019s mistake as to the complainant\u2019s age is not a valid defense to a charge of taking indecent liberties with a minor under N.C. Gen. Stat. \u00a7 14-202.1. As the defense is inapplicable, the trial court properly refused to give defendant\u2019s proffered instruction on the defense. See also Darden v. State, 798 So.2d 632, 634 (Miss. Ct. App. 2001) (holding trial court did not err in refusing to give mistake of age instruction to jury in sexual battery case because mistake of age defense is not valid defense to sex crimes designed to protect children).\nB. Meaning of \u201cWillfully \u201d\nDefendant also argues that the trial court erred by not giving the jury her requested instruction regarding the meaning of \u201cwillfully\u201d in N.C. Gen. Stat. \u00a7 14-202.1(a). Basing her requested instruction on language in the Supreme Court\u2019s decision in State v. Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940), defendant requested the trial court to instruct the jury that \u201c \u2018willfully\u2019 means something more than an intention to commit the offense. It implies committing the offense purposely and designed in violation of law.\u201d The trial court declined to give defendant\u2019s proffered instruction, and, instead, instructed the jury that \u201c [t]he term willfully means that the act is done purposely and without justification or excuse.\u201d The trial court\u2019s instruction on \u201cwillfulness\u201d is taken from State v. Maxwell, 47 N.C. App. 658, 660, 267 S.E.2d 582, 584, appeal dismissed and disc. review denied, 301 N.C. 102, 273 S.E.2d 307 (1980), where this Court held that the term \u201cwillfully\u201d in N.C. Gen. Stat. \u00a7 14-202.1 means \u201cpurposely and without justification or excuse.\u201d\nAlthough the trial court is required to give a requested instruction if it is legally correct and supported by the evidence, Harvell, 334 N.C. at 364, 432 S.E.2d at 129, a defendant is not entitled to have the requested instruction given verbatim, so long as it is given in substance, State v. Agnew, 294 N.C. 382, 395, 241 S.E.2d 684, 692, cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124 (1978). As this Court has observed: \u201cDetermining whether a requested instruction was given in substance is undeniably a very subjective undertaking. Our appellate courts have been loath to find reversible error based on failure to give a requested jury instruction when in the court\u2019s opinion the \u2018in substance\u2019 requirement has been fulfilled.\u201d State v. Carson, 80 N.C. App. 620, 625, 343 S.E.2d 275, 279 (1986).\nOur Supreme Court recently defined the term \u201cwillfully\u201d to mean \u201c \u2018the wrongful doing of an act without justification or excuse, or the commission of an act puiposely and deliberately in violation of law.\u2019 \u201d State v. Ramos, 363 N.C. 352, 355, 678 S.E.2d 224, 226 (2009) (quoting State v. Arnold, 264 N.C. 348, 349, 141 S.E.2d 473, 474 (1965) (per curiam)). As the trial court\u2019s instruction in this case \u2014 explaining that \u201cwillful[ness]\u201d denotes an act \u201cdone purposely and without justification or excuse\u201d \u2014 largely mirrors the Supreme Court\u2019s definition in Ramos, we conclude that the trial court\u2019s instruction to the jury is a correct statement of the law and substantially similar to the one requested by defendant. The trial court, therefore, did not err in refusing to give the specific instruction requested by defendant.\nII. Arguments to Jury\nBased on her argument regarding her requested instruction on mistake of age, defendant argues that the trial court erred by preventing defense counsel from arguing the defense to the jury. Under N.C. Gen. Stat. \u00a7 7A-97 (2009), \u201c[cjounsel is given wide latitude to argue the facts and all reasonable inferences which may be drawn therefrom, together with the relevant law, in presenting the case to the jury.\u201d State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977). N.C. Gen. Stat. \u00a7 7A-97, however, \u201cdoes not authorize counsel to argue law which is not applicable to the issues, for such arguments \u2018could only lead to confusion in the minds of the jury.\u2019 \u201d In re Farr\u2019s Will, 277 N.C. 86, 93, 175 S.E.2d 578, 583 (1970) (quoting State v. Crisp, 244 N.C. 407, 412, 94 S.E.2d 402, 406 (1956)). \u201cWhen the remarks of counsel are not warranted by either the evidence or the law, ... it is the duty of the judge to interfere.\u201d Id.\nAs the trial court correctly concluded that a mistake of age defense is not a valid defense to taking indecent liberties with a minor, it did not err by preventing defense counsel from arguing the defense to the jury at defendant\u2019s trial. See Crisp, 244 N.C. at 412-13, 94 S.E.2d at 406 (holding that where \u201claw of self-defense was irrelevant to the case, and had no application to the facts,\u201d trial court properly prevented trial counsel from arguing defense to jury).\nDefendant similarly argues that the trial court should have allowed defense counsel to argue to the jury that in order for defendant to have acted \u201cwillfully,\u201d she must have been \u201caware that [Beth] was underage and engaged in sexual activity with her anyway.\u201d Defendant\u2019s contention regarding \u201cwillfulness\u201d is simply a variant of her \u201cmistake of age\u201d argument. The trial court properly refused to allow defendant\u2019s \u201cwillfulness\u201d argument as it is premised on an incorrect view of the law. Accordingly, we uphold defendant\u2019s convictions.\nNo Error.\nChief Judge MARTIN and Judge ERVIN concur.\n. The pseudonym \u201cBeth\u201d is used throughout the opinion to protect the minor\u2019s privacy and for ease of reading.\n. In \u201caffirmfing]\u201d this Court\u2019s decision, the Supreme Court did not address the issue of whether mistake of age is a defense to the offense of taking indecent liberties with a minor. Cinema I Video, 320 N.C. at 491, 358 S.E.2d at 385.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State.", "Mark Montgomery for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. YASMIN PECOLIA BREATHETTE, Defendant\nNo. COA09-1007\n(Filed 2 March 2010)\n1. Indecent Liberties\u2014 denial of requested instruction \u2014 mistake of age \u2014 no mens rea requirement\nThe trial court did not err in an indecent liberties case by refusing to instruct the jury on defendant\u2019s requested instruction that mistake of age was a valid defense. There is no specific mens rea requirement in N.C.G.S. \u00a7 14-202.1.\n2. Indecent Liberties\u2014 denial of requested instruction\u2014 willfully\nThe trial court did not err in an indecent liberties case by refusing to instruct the jury on defendant\u2019s requested instruction regarding the meaning of \u201cwillfully\u201d in N.C.G.S. \u00a7 14-202.1(a). The trial court\u2019s instruction to the jury was a correct statement of law and was substantially similar to the one requested by defendant.\n3. Criminal Law\u2014 denial of argument \u2014 mistake of age\u2014 willfulness\nThe trial court did not err in an indecent liberties case by preventing defense counsel from arguing the defense of mistake of age and willfulness to the jury. Mistake of age was not a valid defense to taking indecent liberties. Further, defendant\u2019s willfulness argument was premised on an incorrect view of the law.\nAppeal by defendant from judgments entered 15 April 2009 by Judge Lindsay R. Davis in Forsyth County Superior Court. Heard in the Court of Appeals 11 January 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State.\nMark Montgomery for defendant-appellant." }, "file_name": "0697-01", "first_page_order": 725, "last_page_order": 734 }