{ "id": 4178147, "name": "STATE OF NORTH CAROLINA v. JAMES EDD LIGON, JR.", "name_abbreviation": "State v. Ligon", "decision_date": "2010-08-17", "docket_number": "No. COA09-747", "first_page": "458", "last_page": "471", "citations": [ { "type": "official", "cite": "206 N.C. App. 458" } ], "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": "655 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640214 ], "year": 2008, "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0426-01" ] }, { "cite": "651 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639564 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "286" }, { "page": "318" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0279-01" ] }, { "cite": "671 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642496 ], "year": 2009, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/se2d/671/0351-01" ] }, { "cite": "242 S.W.3d 192", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 8301904 ], "year": 2007, "pin_cites": [ { "page": "198, n.7", "parenthetical": "providing the The American Heritage Dictionary definition and the Webster's New Universal Unabridged Dictionary definition" } ], "opinion_index": 0, "case_paths": [ "/sw3d/242/0192-01" ] }, { "cite": "352 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "year": 1987, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] }, { "cite": "364 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "689 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "441-42" } ], "opinion_index": 0 }, { "cite": "188 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156039 ], "year": 2008, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0193-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-190.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(5)(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-190.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "430 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "918-19" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75-76" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "504" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "year": 1995, "pin_cites": [ { "page": "676-77" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] }, { "cite": "130 L. Ed. 2d 429", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1330529, 1332356, 1330884, 1335114, 1332012, 1330701, 1332079, 1330544, 1333073, 1335603, 1332603, 1334483, 1332790, 1332535, 1332666, 1335835 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/1006-07", "/us/513/1006-08", "/us/513/1006-05", "/us/513/1006-06", "/us/513/1006-01", "/us/513/1006-15", "/us/513/1006-02", "/us/513/1006-10", "/us/513/1006-11", "/us/513/1006-13", "/us/513/1006-16", "/us/513/1006-14", "/us/513/1006-12", "/us/513/1006-09", "/us/513/1006-03", "/us/513/1006-04" ] }, { "cite": "444 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "336 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537586 ], "year": 1994, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0321-01" ] }, { "cite": "140 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "523 U.S. 1109", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11549667, 11549894, 11549543, 11549929, 11549819, 11549646, 11549585, 11549970, 11549719, 11549749, 11549623, 11549786, 11549691, 11549853 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/523/1109-05", "/us/523/1109-12", "/us/523/1109-01", "/us/523/1109-13", "/us/523/1109-10", "/us/523/1109-04", "/us/523/1109-02", "/us/523/1109-14", "/us/523/1109-07", "/us/523/1109-08", "/us/523/1109-03", "/us/523/1109-09", "/us/523/1109-06", "/us/523/1109-11" ] }, { "cite": "277 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "492 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "613", "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" }, { "page": "613" } ], "opinion_index": 0 }, { "cite": "347 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551315 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "317", "parenthetical": "quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0309-01" ] }, { "cite": "154 L. Ed. 2d 404", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9287777, 9287908, 9288011, 9287756, 9287981, 9288046, 9287856, 9288081, 9287888, 9287955, 9287828, 9287801, 9287930, 9287871 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/1006-02", "/us/537/1006-08", "/us/537/1006-12", "/us/537/1006-01", "/us/537/1006-11", "/us/537/1006-13", "/us/537/1006-05", "/us/537/1006-14", "/us/537/1006-07", "/us/537/1006-10", "/us/537/1006-04", "/us/537/1006-03", "/us/537/1006-09", "/us/537/1006-06" ] }, { "cite": "561 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "355 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219909 ], "year": 2002, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0320-01" ] }, { "cite": "661 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "362 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150926 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0342-01" ] }, { "cite": "186 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156410 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0308-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "indecent liberties with a child" } ], "opinion_index": 0 }, { "cite": "49 L. Ed. 2d 1210", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "219 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "187" }, { "page": "187" } ], "opinion_index": 0 }, { "cite": "288 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569503 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "411" }, { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0397-01" ] }, { "cite": "446 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1994, "pin_cites": [ { "page": "190" }, { "page": "88" }, { "page": "191" }, { "page": "88" }, { "page": "89" }, { "page": "88" }, { "page": "88" } ], "opinion_index": 0 }, { "cite": "337 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549457 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "191" }, { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0182-01" ] }, { "cite": "263 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "610" }, { "page": "610" } ], "opinion_index": 0 }, { "cite": "299 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575300 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "494-95" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0491-01" ] }, { "cite": "679 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "194 N.C. App. 725", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4163489 ], "year": 2009, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0725-01" ] }, { "cite": "160 L. Ed. 2d 500", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "543 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5966624, 5970432, 5934145, 5903781, 5884587, 5874285, 5977294, 3444882, 5978675, 3442196, 5978454, 3436472, 5974716, 5970846 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/543/1023-09", "/us/543/1023-01", "/us/543/1023-04", "/us/543/1023-05", "/us/543/1023-03", "/us/543/1023-13", "/us/543/1023-11", "/us/543/1023-02", "/us/543/1023-08", "/us/543/1023-14", "/us/543/1023-06", "/us/543/1023-12", "/us/543/1023-07", "/us/543/1023-10" ] }, { "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": "595 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "135", "parenthetical": "quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2988021 ], "year": 2004, "pin_cites": [ { "page": "346", "parenthetical": "quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0330-01" ] } ], "analysis": { "cardinality": 1195, "char_count": 31647, "ocr_confidence": 0.754, "pagerank": { "raw": 5.1124576340692434e-08, "percentile": 0.32086947926307674 }, "sha256": "f9a0aefcde9e09dfcd4d2ecb79f16f5eb4c710b887a3e57a5a8abeebce603c6f", "simhash": "1:03ac322250ef0466", "word_count": 5163 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and BEASLEY concur.", "Judge WYNN concurred in this opinion prior to 9 August 2010." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES EDD LIGON, JR." ], "opinions": [ { "text": "WYNN, Judge.\nA person commits the offense of first degree sexual exploitation of a minor if he uses, employs, induces, coerces, encourages, or facilitates a minor to engage in sexual activity. In the present case, Defendant James Edd Lig\u00f3n, Jr., was convicted of first degree sexual exploitation of a minor and taking indecent liberties with a child based on several photographs he took of a minor female. Because these photographs do not meet the statutory definition of \u201csexual activity,\u201d we reverse Defendant\u2019s conviction for first degree sexual exploitation of a minor. We uphold, however, Defendant\u2019s conviction on the charge of taking indecent liberties with a child.\nThe police first became interested in Defendant when they were notified by employees at two separate businesses, Eckerd Drugs and Walgreens, that Defendant sought to have questionable photographs developed. Walgreens has a policy against printing photographs depicting full frontal nudity, sexual activity, pornography, or child pornography. Three of the photographs that Walgreens withheld from Defendant\u2019s order depicted the five-year-old child whom we refer to by the pseudo-initials, A.B.\nOne picture showed A.B., wearing shorts, sitting on a bench with her legs spread apart. Another picture showed the photographer\u2019s hand pulling away the leg of A.B.\u2019s shorts revealing the crotch area underneath her pants. A third picture showed A.B. pulling up the leg of her own shorts with the fingers of her other hand in her crotch area. Due to the lighting in the photographs, it could not be determined whether the pictures showed A.B.\u2019s private parts or underpants.\nDetective Paula Barnes met with Defendant twice about the photographs. In an interview on 31 October 2005, Detective Barnes asked Defendant if he knew the girl depicted in the photographs. Defendant said he did, and that she lived just up the street from him. Defendant told Detective Barnes that the reason he had taken the photographs of A.B. was that his dog had jumped into her lap and had scratched her on her inner thigh. Defendant told Detective Barnes that he was concerned about lawsuits, and he wanted to document that there was no serious injury.\nAt some point, Detective Barnes confirmed with A.B. and with her parents that she had been scratched by Defendant\u2019s dog. The mother told Detective Barnes that the scratch was on the upper thigh; the child said it was on the lower thigh.\nDetective Barnes asked Sergeant David Lee Romick, a detective sergeant with the Asheville Police Department, for his assistance in interviewing Defendant. On 17 November 2005, Sergeant Romick interviewed Defendant. He showed Defendant all of the photographs, including the photographs of A.B. that had been withheld by Walgreens. Defendant told Sergeant Romick that he had taken the photographs of A.B. because his dog had scratched her upper thigh, and he was trying to avoid a lawsuit.\nSergeant Romick then accused Defendant of taking the pictures of A.B. in order to stimulate himself. \u201cYou looked at these photographs, and you would masturbate while looking at these photographs of this little girl.\u201d Defendant began to cry and get upset. He did not disagree with Sergeant Romick. Defendant said he was sick and needed help. He agreed to speak further with Detective Barnes about the photographs.\nDefendant then told Detective Barnes that he used his other photographs, specifically pictures depicting a young woman in a red bikini, for masturbation material. Defendant indicated that he realized he had a problem, and he asked where he could go to get help. Detective Barnes then asked Defendant whether he would have used the photographs of A.B. for masturbation, had he been allowed to take them home. Defendant said he would have.\nDefendant was tried on 20-23 June 2006 for taking indecent liberties with a child and first degree sexual exploitation of a minor. The State presented the evidence summarized above. Defendant introduced testimony from his neighbor, John Livingston, who stated that he saw A.B. playing with Defendant\u2019s dog on the day she was allegedly injured. Livingston testified that he heard her yell, and when he looked in her direction, he saw Defendant\u2019s dog in her lap while she was sitting on a bench. Livingston testified that he saw the dog jump away and A.B. looking on her leg as though \u201cmaybe something happened to her.\u201d Livingston went back inside, and did not see anyone taking pictures.\nDefendant testified in his own defense. He admitted taking the photographs of A.B., but explained that the only reason he did so was to protect himself from lawsuits. Defendant testified that the pictures were not taken for any kind of sexual gratification. He admitted that he had masturbated to photographs similar to those of the female in the red bathing suit, but he denied having told Detective Barnes that he masturbated to those particular pictures. He said that when he told Detective Barnes he needed help, he meant he needed legal help with this case. Defendant also introduced the testimony of his mother, with whom he lives, three people from the congregation at his church, and his girlfriend.\nDefendant\u2019s counsel moved to dismiss all charges at the close of the State\u2019s case. The trial court denied the motion to dismiss the charge of taking indecent liberties with a child, but reserved ruling on the charge of first degree sexual exploitation of a minor. Defense counsel presented evidence and, at the close of all the evidence, renewed his motion to dismiss the charge of sexual exploitation of a minor. The trial court denied the motion. The jury found Defendant guilty of taking indecent liberties with a child and first degree sexual exploitation of a minor.\nOn appeal, Defendant argues that the trial court erred by: (I) permitting various witnesses to give their opinions regarding the photographic evidence; (II) admitting hearsay statements of A.B. and her babysitter; (III) denying Defendant\u2019s motion to dismiss the charges due to insufficient evidence; and (IV) failing to instruct the jury on second-degree sexual exploitation of a minor.\nI. Opinion Testimony Regarding the Photographs\nDefendant first argues that the trial court erred in allowing lay opinion testimony regarding the content of the pictures. Defendant concedes that he did not object at trial to the witnesses\u2019 characterization of the pictures. We therefore review the admission of this testimony for plain error. See N.C. R. App. P. 10(a)(4) (2010). \u201cUnder the plain error standard of review, defendant has the burden of showing: \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. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)), cert. denied, Jones v. North Carolina, 543 U.S. 1023, 160 L. Ed. 2d 500 (2004).\nDefendant also argues that the trial court erred in admitting the Police Incident Report which states that \u201cphoto\u2019s [sic] had juvenile\u2019s female private\u2019s [sic] showing.\u201d Defendant objected at trial to the admission of the report. We therefore review the trial court\u2019s admission of this evidence for abuse of discretion. State v. Buie, 194 N.C. App. 725, 730, 671 S.E.2d 351, 354, disc. rev. denied, 363 N.C. 375, 679 S.E.2d 135 (2009). Defendant argues that each opinion as to what the photographs depicted was prejudicial because the jury would have determined that the pictures were not sexual in nature and consequently found Defendant not guilty.\nThere is nothing in the record indicating that any of the witnesses testified as an expert. The question is therefore whether the testimony regarding the contents of the photographs was admissible as lay opinion. Pursuant to the North Carolina Rules of Evidence, admissible lay opinion testimony \u201cis limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2009).\nThe record shows no evidence that the testifying witnesses perceived the behavior depicted in the photographs first-hand. Although their opinions as to what the pictures showed were based on their perceptions of the photographs, the helpfulness of those opinions to the jury, which was in no worse position to evaluate the pictures, is questionable. We must determine the extent to which a witness may testify to his observations of a photograph that is equally available to the jury.\nIn State v. Fulton, 299 N.C. 491, 263 S.E.2d 608 (1980), our Supreme Court considered the admissibility of an officer\u2019s opinion that the tread design shown in a photograph of shoe tracks found near a crime scene and the tread design on the bottom of defendant\u2019s tennis shoes were identical. The Court held that the admission of this testimony was error. Id. at 494, 263 S.E.2d at 610. Because no effort had been made to qualify the witness as an expert, it followed \u201cthat his opinion was inadmissible because the jury was apparently as well qualified as the witness to draw the inferences and conclusions from the facts that [the officer] expressed in his opinion.\u201d Id.\nWe consider also State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994). Defendants in Alexander, alleged that \u201cthe trial court erred when it allowed Officer Frank to testify that a photograph shown to him at trial showed \u2018small openings that appeared to be buckshot\u2019 on Corey Hill\u2019s arm.\u201d Id. at 190, 446 S.E.2d at 88. Defendants argued that the testimony constituted inadmissible lay opinion. Id. Our Supreme Court disagreed, holding the statements to be admissible as \u201cshorthand statements of fact\u201d \u2014 i.e. \u201cinstantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.\u201d Id. at 191, 446 S.E.2d at 88 (quoting State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975), vacated in part, Spaulding v. North Carolina, 428 U.S. 904, 49 L. Ed. 2d 1210 (1976)). The Court in Alexander indicated that the officer\u2019s interpretation of the photograph need not even be correct. Id. at 191, 446 S.E.2d at 89.\nWith these principles in mind, we turn to the facts of the case before us. Defendant argues that the following constitutes improper lay opinion testimony: statements that the photographs were \u201cdisturbing,\u201d \u201cgraphic,\u201d \u201cof a sexual nature involving children,\u201d \u201cobjectionable,\u201d \u201cconcerning\u201d to the witness, and that Defendant pulled away the minor\u2019s pant leg to get a \u201cshot into the vaginal area.\u201d Defendant argues that such statements were not admissible as \u201cshorthand statements of fact.\u201d Defendant argues that the photographic evidence was either sexual in nature or it was not, and no specialized training was necessary to discern what the pictures showed.\nDefendant concedes that he failed to object to the testimony when it was offered. We are directed to no case finding prejudicial error in admitting testimony regarding the contents of a still photograph where the testimony was not objected to at trial. After careful review, we hold that the alleged error in allowing the State\u2019s witnesses to testify to their reactions to the photographs does not rise to the level of plain error.\nDefendant did object to the admission of the Police Report, where Officer Driver wrote \u201cphoto\u2019s [sic] had juvenile\u2019s female private\u2019s [sic] showing.\u201d During voir dire, the following colloquy occurred between the prosecutor and Officer Driver:\nQ: And did you record all of the information contained in this report? Is this your writing?\nA: Yes, sir, it is.\nQ: And the language that is contained on Page 2, [including \u201cphoto\u2019s had juvenile\u2019s female private\u2019s showing\u201d], this is your language and your writing?\nA: Yes, sir.\nQ: Where did you obtain this information that you put on Page 2?\nA: I wrote that as an overview of what \u2014 a baseline of information. I talked with \u2014 I just didn\u2019t know anything about this case. I walk in. I spent 15 or 10 minutes with the manager. I tried to fill it out as quickly as I can, get some basic information on there, and then pass that on to the appropriate investigator.\nQ: So the language on Page 2, then, is how you personally viewed this incident?\nA: At the time, yes, sir.\nIt is clear from this testimony that the officer\u2019s notation constituted a shorthand rendition of his observations. The report reflects the officer\u2019s instantaneous conclusions of the mind as to the appearance of the pictures. We therefore hold that the statement was a \u201cshorthand statement of fact\u201d such as has been deemed admissible by our Supreme Court. See Alexander, 337 N.C. at 191, 446 S.E.2d at 88.\nDefendant next argues that testimony that the subjects of his pictures did not know that they were being photographed constituted improper lay opinion. Assuming this was error, still the error does not rise to the level of reversible error because Defendant cannot show any prejudice resulting from the jury\u2019s possible belief that the subjects of his pictures were unaware. Such statements do not bear on his guilt or innocence of the offenses charged. See N.C. Gen. Stat. \u00a7 14-202.1 (2009) (indecent liberties with a child); N.C. Gen. Stat. 14-190.16 (2009) (first degree sexual exploitation of a minor).\nDefendant next argues that the trial court erred in admitting Detective Barnes\u2019 statement that Defendant\u2019s explanation was not consistent with what the photographs depicted. Defendant infers from this that Detective Barnes testified that Defendant was lying. Defendant argues that an opinion as to the credibility of a witness is not helpful to the jury\u2019s determination of a fact in issue.\nIn support of this argument, Defendant cites State v. Gobal, 186 N.C. App. 308, 651 S.E.2d 279 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008). However, Gobal is factually distinguishable. In Gobal, the testimony at issue constituted improper vouching \u2014 i.e. one witness testified that another was telling the truth. Gobal, 186 N.C. App. at 318-19, 651 S.E.2d at 286. We there noted that \u201cour Supreme Court has determined that when one witness \u2018vouchees] for the veracity of another witness,\u2019 such testimony is an opinion which is not helpful to the jury\u2019s determination of a fact in issue and is therefore excluded by Rule 701.\u201d Id. at 318, 651 S.E.2d at 286 (quoting State v. Robinson, 355 N.C. 320, 335, 561 S.E.2d 245, 255, cert. denied, Robinson v. North Carolina, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002)). Defendant does not point to any such vouching in the present case.\nWe conclude that the trial court did not commit prejudicial error in permitting witnesses to testify regarding the photographic evidence.\nII. Hearsay Statements of A.B. and the Babysitter\nDefendant next argues that the trial court committed plain error in allowing statements of A.B. and the babysitter, neither of whom testified, into evidence. The statements in question were offered during the testimony of Detective Barnes and during cross-examination of Defendant. Detective Barnes testified that she learned from A.B. that she was five-years-old at the time of the incident. A.B. told Detective Barnes that she had been scratched by the dog on her shin. The babysitter told Detective Barnes that A.B. had been scratched on her inner thigh. No objections were made to Detective Barnes\u2019 testimony. The prosecutor asked Defendant more about these same statements on cross-examination.\nDefendant now argues that the statements were hearsay offered to prove that A.B. was five-years-old, A.B. was scratched on the shin, and there- was no legal reason for Defendant to have taken the photographs of A.B.\u2019s upper thigh. Defendant asserts that these out-of-court statements were offered for their truth and met no exception to the prohibition on the admission of hearsay evidence. Defendant also argues that these unproven hearsay statements were used by the prosecutor to impeach the credibility of Defendant on cross-examination. Defendant maintains that the admission of these statements constituted prejudicial error.\nHearsay is defined as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2009). \u201cHearsay is not admissible except as provided by statute or by these rules.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (2009). Notwithstanding, \u201c[t]he law \u2018wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself.\u2019 \u201d State v. Warren, 347 N.C. 309, 317, 492 S.E.2d 609, 613 (1997) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)), cert. denied, Warren v. North Carolina, 523 U.S. 1109, 140 L. Ed. 2d 818 (1998). \u201cOpening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidence would be incompetent or irrelevant had it been offered initially.\u201d State v. Sexton, 336 N.C. 321, 360, 444 S.E.2d 879, 901, cert. denied, Sexton v. North Carolina, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994).\nDuring defense counsel\u2019s cross-examination of Detective Barnes, the following exchange took place:\nQ: . . . But it\u2019s possible that he \u2014 that he\u2019s telling the truth about the dog scratching the little girl?\nA: It\u2019s a possibility.\nQ: It\u2019s a possibility. And it\u2019s a possibility that you explored, because you spoke to [A.B.] and you spoke to the parents, and you confirmed that she had been scratched by the dog, didn\u2019t you?\nA: Yes, I did.\nQ: So the child had been scratched by the dog, and he did take pictures. And the story that he did tell you was an accurate story, at least to the point that the child had been scratched by the dog. Where the child had been scratched is somewhat in dispute, correct?\nA: Correct.\nQ: Everybody confirmed that the dog jumped up on the child and scratched the child?\nA: Correct.\nQ: And everything in your investigation verified those facts that the child had been scratched. At the time of the photos, he went and told the babysitter about it. Everything was verified, wasn\u2019t it?\nA: Yes, it was.\nDuring redirect examination of Detective Barnes, the State asked more about the investigation of the scratch on A.B.\u2019s leg. It was during this latter examination that the testimony was offered that Defendant now argues was impermissible hearsay. We hold Defendant opened the door to allow the State to ask related questions concerning the investigation into the scratch on A.B.\u2019s leg. See Warren, 347 N.C. at 317, 492 S.E.2d at 613.\nDefendant also argues that the trial court erred in admitting hearsay to establish A.B.\u2019s age. Defendant did not object to this evidence when it was offered at trial. We are persuaded by the State\u2019s argument that there was no dispute below about A.B.\u2019s age. Indeed, during defense counsel\u2019s direct examination of Defendant, counsel-referring to one of the photographs \u2014 asked: \u201cThis is you, James, taking a child that\u2019s five years old\u201d and pulling aside her pants? Defendant replied, \u201cYes.\u201d Moreover, the jury could see for itself from the photographs that A.B. was not an adult when the pictures were taken. Thus, the testimony merely corroborated a fact which the jury could deduce from other evidence. Consequently, assuming arguendo that it was error to admit the statement, Defendant cannot demonstrate that a different result would have been reached absent the error. We hold that the trial court did not commit prejudicial error in admitting the contested hearsay statements of A.B. and her babysitter.\nIII. Defendant\u2019s Motion to Dismiss\nIn his next argument, Defendant acknowledges that by failing to renew his motion to dismiss the.indecent liberties charge at the close of all the evidence, he has failed to preserve that claim of error. N.C. R. App. P. 10(a)(3) (2010). He requests this Court to suspend the Rules, pursuant to Rule 2, to address his claim that the trial court erred in denying his motion to dismiss the charge of taking indecent liberties with a child. We decline the invitation to suspend the Rules, and hold that Defendant has failed to preserve his claim of error regarding the charge of taking indecent liberties with a child. See State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995).\nWe now turn to Defendant\u2019s argument that the trial court erred in denying his motion to dismiss the charge of first degree sexual exploitation of a minor. The test of the sufficiency of the evidence in a criminal case is whether \u201cthere is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u201d State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). \u201cSubstantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d Id. On review, the evidence must be viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences that can be drawn from the evidence. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75-76, 430 S.E.2d 913, 918-19 (1993)), cert. denied, Fritsch v. North Carolina, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).\nIn North Carolina, first degree sexual exploitation of a minor is criminalized by N.C. Gen. Stat. \u00a7 14-190.16 which provides:\n(a) Offense. \u2014 A person commits the offense of first degree sexual exploitation of a minor if, knowing the character or content of the material or performance, he:\n(1) Uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity;\nN.C. Gen. Stat. \u00a7 14-190.16 (2009). \u201cSexual activity\u201d is elsewhere defined as \u201cmasturbation\u201d or \u201ctouching in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female.\u201d N.C. Gen. Stat. \u00a7 14-190.13(5)(a), (c) (2009).\nDefendant argues that none of the photographs show any sexual activity. The State maintains that the picture depicting A.B. pulling up the leg of her shorts while the fingers of her other hand are in her pubic area is sufficient evidence for the jury to find a depiction of masturbation. The State argues further that, along with the other evidence, the jury could infer that defendant coerced or encouraged A.B. to touch herself for the purpose of producing a photograph depicting such activity. The State contends that the photograph of Defendant pulling aside A.B.\u2019s shorts depicts \u201ctouching\u201d that meets the statutory definition of sexual activity.\nSimply stated, the pictures do not depict any sexual activity. North Carolina does not provide a statutory definition of masturbation. However, the dictionary defines the word as \u201c[e]xcitation of the genital organs, usually to orgasm, by manual contact or means other than sexual intercourse.\u201d The American Heritage Dictionary 771 (2d College ed. 1985). This definition is not satisfied by a photograph of A.B. merely having her hand in proximity to her crotch area. The other picture, depicting Defendant\u2019s hand, shows him touching A.B.\u2019s shorts, not her body. This does not satisfy the definition of touching her \u201cgenitals, pubic area, or buttocks\u201d as required by statute.\nRegarding the picture of A.B. pulling aside her own shorts with her other hand near her crotch area, the State argues that,\nviewing this photograph[] along with the evidence that defendant took photographs of other female juveniles, including one in which he focused on the juvenile\u2019s vaginal area; masturbated to photographs he took of the young woman in the red bathing suit; began crying when Detective Barnes asked him if he would have masturbated to the photographs of [A.B.] had Walgreens given them to him; admitted to Detective Barnes that he would have masturbated to the photographs of [A.B.] had Walgreens given them to him; and admitted he was sick and needed help, gives rise to a reasonable inference that defendant induced, coerced, encouraged, or facilitated [A.B.] to touch herself for the purpose of producing a photograph depicting such activity.\nIt is obvious that by compounding the prejudice attendant upon each of these unsavory facts the State could accumulate enough disgust to convince a jury that Defendant had committed some moral offense. We cannot overlook, however, the unpleasant fact that none of these allegations points to any illegal behavior. Defendant\u2019s use of his photographs for the purpose of masturbation does not prove that the photographs themselves depict masturbation, or that the behavior can be inferred from them. Viewing the evidence in the light most favorable to the State, we hold that the pictures cannot support a conviction of first degree sexual exploitation of a minor.\nThis result should not be misinteipreted as a declaration of Defendant\u2019s innocence. We are quite disturbed by the picture of Defendant pulling away the leg of A.B.\u2019s shorts to photograph the area revealed. But we cannot ignore that the State failed to procure the testimony of the alleged victim in this case. Indeed, the State presented no evidence that Defendant had done anything to satisfy the statutory definition of prohibited sexual conduct. See N.C. Gen. Stat. \u00a7 14-190.16 (2009). We are barred from reading the statute broadly enough to prohibit Defendant\u2019s conduct because we are compelled to construe this statute strictly. See State v. Hernandez, 188 N.C. App. 193, 202, 655 S.E.2d 426, 432 (2008). If our legislature had intended to criminalize such behavior as Defendant\u2019s, it certainly could have done so.\nBecause we hold that the trial court erred in denying Defendant\u2019s motion to dismiss the charge of first degree sexual exploitation of a minor, we need not reach Defendant\u2019s argument that the trial court erred in not instructing the jury on second-20-degree sexual exploitation of a minor.\nIn sum, we uphold Defendant\u2019s conviction for taking indecent liberties with a child. However, we reverse Defendant\u2019s conviction on the charge of first degree sexual exploitation of a minor.\nNo error in part, reversed in part, and remanded for resentencing.\nJudges CALABRIA and BEASLEY concur.\nJudge WYNN concurred in this opinion prior to 9 August 2010.\n. N.C. Gen. Stat. \u00a7 14-190.16 (2009).\n. For a comprehensive review of how various jurisdictions determine the admissibility of testimony identifying the defendant in surveillance video footage, see State v. Belk, _ N.C. App. _, _, 689 S.E.2d 439, 441-42 (2009), disc. review denied, 364 N.C. 129, _ S.E.2d _ (2010). However, regarding the case on review, we do not find these cases particularly relevant to the question of the admissibility of testimony interpreting images depicted in a still photograph where the identity of the defendant is not an issue.\n. The Court held this to be harmless error beyond a reasonable doubt because expert testimony was also offered to support the same conclusion. Fulton, 299 N.C. at 494-95, 263 S.E.2d at 610.\n. \u201cCorey Hill had already testified that his wounds were caused by \u2018glass coming through the window from the shotgun blast.\u2019 \u201d Alexander, 337 N.C. at 190, 446 S.E.2d at 88.\n. We note that the cases the Alexander Court relied upon involved a witness\u2019s first-hand observations, whereas Alexander itself involved a witness\u2019s perception of a photograph. See State v. Spaulding, 288 N.C. at 411, 219 S.E.2d at 187; State v. Williams, 319 N.C. 73, 78, 352 S.E.2d 428, 432 (1987). There is an inconsistency between Fulton and Alexander, since lay opinion testimony that would run afoul of the former could be rendered admissible by the latter. Nonetheless, we are bound by Alexander\u2019s extension of the \u201cshorthand statements of fact\u201d concept to witnesses\u2019 observations of photographs.\n. Compare Young v. State, 242 S.W.3d 192, 198, n.7 (Tex. App. 2007) (providing the The American Heritage Dictionary definition and the Webster\u2019s New Universal Unabridged Dictionary definition).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State.", "Brian Michael Aus, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EDD LIGON, JR.\nNo. COA09-747\n(Filed 17 August 2010)\n1. Evidence\u2014 lay opinion testimony \u2014 content of pictures\nThe trial court did not commit plain error in a sexual exploitation of a minor and taking indecent liberties with a child case in allowing lay opinion testimony regarding the content of photographs. Additionally, the trial court did not abuse its discretion in admitting a police incident report which stated that \u201cphoto\u2019s [sic] had juvenile\u2019s female private\u2019s [sic] showing.\u201d Such statement was a \u201cshorthand statement of fact\u201d previously deemed admissible by our Supreme Court.\n2. Evidence\u2014 lay opinion testimony \u2014 subjects of photographs\nThe trial court did not commit reversible error in a sexual exploitation of a minor and taking indecent liberties with a child case by allowing testimony that the subjects of photographs taken by defendant did not know that they were being photographed because the statements did not bear on defendant\u2019s guilt or innocence.\n3. Evidence\u2014 lay opinion testimony \u2014 statement inconsistent with photographs\nThe trial court did not err in a sexual exploitation of a minor and taking indecent liberties with a child case in admitting a detective\u2019s statement that defendant\u2019s explanation of why he took certain photographs was not consistent with what the photographs depicted.\n4. Evidence\u2014 hearsay \u2014 opened door \u2014 corroboration a fact\u2014 no prejudicial error\nThe trial court did not commit plain error in a sexual\" exploitation of a minor and taking indecent liberties with a child case in allowing statements of the victim and the babysitter, neither of whom testified, into evidence. Defendant opened the door to allow the State to ask questions concerning the investigation into a scratch on the victim\u2019s leg and testimony regarding the victim\u2019s age merely corroborated a fact which the jury could have deduced from other evidence. Even assuming arguendo that it was error to admit the statement, defendant could not demonstrate that a different result would have been reached absent the error.\n5. Appeal and Error\u2014 preservation of issues \u2014 motion to dismiss \u2014 failure to renew motion at close of all evidence\nDefendant did not renew his motion to dismiss the charge of taking indecent liberties with a child at the close of all the evidence and thus failed to preserve for appellate review his argument that the trial court erred in denying his motion to dismiss the charge.\n6. Sexual Offenses\u2014 first-degree sexual exploitation \u2014 insufficient evidence \u2014 motion to dismiss improperly denied\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of first-degree sexual exploitation of a minor because the photographs taken by defendant of a minor child did not depict any sexual activity.\nAppeal by defendant from judgment entered 26 June 2006 by Judge Zoro J. Guice, Jr. in Superior Court, Buncombe County. Heard in the Court of Appeals 8 December 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State.\nBrian Michael Aus, for defendant-appellant." }, "file_name": "0458-01", "first_page_order": 482, "last_page_order": 495 }