State v. Jones , 248 N.C. App. 418 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1239
Filed: 19 July 2016
Randolph County, Nos. 10 CRS 50216-17
STATE OF NORTH CAROLINA
v.
CLAYTON MICHAEL JONES
Appeal by defendant from judgment entered 15 May 2015 by Judge John O.
Craig, III in Randolph County Superior Court. Heard in the Court of Appeals 30
March 2016.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General,
for the State.
Clifford Clendenin & O’Hale, LLP, by Daniel A. Harris and Locke T. Clifford,
for defendant-appellant.
DAVIS, Judge.
Clayton Michael Jones (“Defendant”) appeals from his convictions for two
counts of second-degree sexual exploitation of a minor. On appeal, he contends that
the trial court (1) lacked the authority to grant his request for a waiver of his right to
a trial by jury; (2) improperly considered inadmissible evidence that had been
suppressed before trial; (3) erred in denying his motion to dismiss the charges against
him due to a fatal variance between the date of the offenses listed on the indictments
and the date established by the evidence at trial; and (4) improperly denied his
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Opinion of the Court
motions to dismiss. After careful review, we conclude that Defendant received a fair
trial free from prejudicial error.
Factual Background
The State presented evidence at trial tending to establish the following facts:
On 18 October 2009, images of child pornography were downloaded to a computer
later established as belonging to Defendant. The street address associated with the
IP address for the computer was the home of Defendant’s parents on Osborn Mill
Road in Randolph County, North Carolina.
The images were downloaded via a “peer-to-peer” file sharing software
program known as “Gnutella,” which — by means of a download engine — allows its
users to download image files from other users of the program. Gnutella utilizes a
search function where users type in a description of the image file for which they are
searching using descriptive terms and language. A list of results is then displayed
from which users may select the files they want to download. Those files are then
downloaded directly onto their computer.
Detective Bernie Maness (“Detective Maness”) with the Randolph County
Sheriff’s Office detected the images being downloaded to the computer’s IP address
through a software program used by law enforcement officials called “Peer Spectre,”
which monitors downloads occurring on various peer-to-peer software platforms,
including Gnutella. The images downloaded to the IP address were flagged as known
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child pornography, and Detective Maness procured a search warrant for the Osborn
Mill Road address.
On 17 December 2009, Detective Maness, along with Detective Jason Chabot
(“Detective Chabot”) and several deputies, went to the Osborn Mill Road address to
execute the search warrant. Defendant was not present when the detectives arrived,
but his parents were at home and let the detectives inside.
Upon entering Defendant’s bedroom, Detectives Maness and Chabot observed
a white Apple MacBook laptop (the “MacBook”) partially concealed underneath
Defendant’s mattress. The detectives seized the MacBook and continued their
search.
While the search was still ongoing, Defendant returned home and encountered
the detectives. Detective Maness identified himself to Defendant and informed him
that he and Detective Chabot were executing a search warrant for child pornography.
After hearing Detective Maness make this statement, Defendant “hung his head.”
Detective Maness subsequently conducted a forensic examination of the
MacBook using specialized software that allows law enforcement officers to view, but
not alter, the contents of computers. During his examination of the MacBook,
Detective Maness noted that there was only one user — “Clay” — listed on the laptop
login screen. Contained in the MacBook’s “trash bin” — where deleted files are stored
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Opinion of the Court
prior to their permanent deletion — were two image files depicting child pornography
that had been downloaded from the Gnutella software program.
On 12 July 2010, Defendant was indicted on two counts of second-degree sexual
exploitation of a minor. On 7 March 2011, Defendant moved to suppress certain
statements he had made to Detective Maness outside his parents’ house during the
execution of the search warrant in which he confessed that he had, in fact,
downloaded the child pornography to his MacBook from the Gnutella program. A
hearing on Defendant’s motion to suppress was held on 21 March 2011 before the
Honorable John O. Craig, III. At the hearing, Defendant argued that the statements
he provided to Detective Maness had been coerced and were therefore involuntary.
On 18 January 2012, the trial court entered an order granting Defendant’s motion
and suppressing the challenged statements.
On 11 May 2015, a jury trial was scheduled before Judge Craig in Randolph
County Superior Court. Shortly after the case was called for trial, Defendant
informed the court that he was voluntarily waiving his right to a jury trial pursuant
to Article I, § 24 of the North Carolina Constitution and N.C. Gen. Stat. § 15A-1201.
A bench trial then took place with Judge Craig presiding. At the conclusion of the
trial, Judge Craig found Defendant guilty of both charges. The trial court sentenced
Defendant to 19-32 months imprisonment, suspended the sentence, and placed
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Opinion of the Court
Defendant on 36 months of supervised probation. Defendant gave oral notice of
appeal in open court.
Analysis
I. Waiver of Right to Jury Trial
Defendant first argues that the trial court lacked the authority to allow him to
waive his right to a trial by jury. We disagree.
Effective 1 December 2014, the North Carolina Constitution was amended by
the citizens of North Carolina to allow criminal defendants to waive their right to a
trial by jury in non-capital cases. Article I, Section 24 of the North Carolina
Constitution now reads as follows:
No person shall be convicted of any crime but by the
unanimous verdict of a jury in open court, except that a
person accused of any criminal offense for which the State
is not seeking a sentence of death in superior court may, in
writing or on the record in the court and with the consent
of the trial judge, waive jury trial, subject to procedures
prescribed by the General Assembly. The General
Assembly may, however, provide for other means of trial
for misdemeanors, with the right of appeal for trial de novo.
N.C. Const. art. I, § 24.
This provision of our Constitution was ratified as a result of legislation passed
by the General Assembly calling for the amendment to be submitted to North
Carolina voters for approval. Chapter 300 of the 2013 North Carolina Session Laws,
which authorized the ballot measure, provided that “[i]f the constitutional
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Opinion of the Court
amendment proposed in Section 1 is approved by the voters, Section 4 of this act
becomes effective December 1, 2014, and applies to criminal cases arraigned in
superior court on or after that date.” 2013 N.C. Sess. Laws 821, 822, ch. 300, § 5
(emphasis added). Section 4 reads, in pertinent part, as follows:
(b) A defendant accused of any criminal offense for which
the State is not seeking a sentence of death in superior
court may, knowingly and voluntarily, in writing or on the
record in the court and with the consent of the trial judge,
waive the right to trial by jury. When a defendant waives
the right to trial by jury under this section, the jury is
dispensed with as provided by law, and the whole matter
of law and fact shall be heard and judgment given by the
court.
2013 N.C. Sess. Laws 821, 822, ch. 300, § 4(b). This provision was subsequently
codified in N.C. Gen. Stat. § 15A-1201.
Defendant contends that because he should have been arraigned shortly after
he was indicted on 12 July 2010 — well before the 1 December 2014 effective date of
the constitutional amendment and the accompanying session law — the trial court
lacked the authority to grant his request for a waiver of his right to a trial by jury.
N.C. Gen. Stat. § 15A-941 provides, in pertinent part, as follows:
(a) Arraignment consists of bringing a defendant in open
court or as provided in subsection (b) of this section before
a judge having jurisdiction to try the offense, advising him
of the charges pending against him, and directing him to
plead. The prosecutor must read the charges or fairly
summarize them to the defendant. If the defendant fails to
plead, the court must record that fact, and the defendant
must be tried as if he had pleaded not guilty.
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....
(d) A defendant will be arraigned in accordance with this
section only if the defendant files a written request with
the clerk of superior court for an arraignment not later
than 21 days after service of the bill of indictment. If a bill
of indictment is not required to be served pursuant to G.S.
15A-630, then the written request for arraignment must be
filed not later than 21 days from the date of the return of
the indictment as a true bill. Upon the return of the
indictment as a true bill, the court must immediately cause
notice of the 21-day time limit within which the defendant
may request an arraignment to be mailed or otherwise
given to the defendant and to the defendant’s counsel of
record, if any. If the defendant does not file a written
request for arraignment, then the court shall enter a not
guilty plea on behalf of the defendant.
N.C. Gen. Stat. § 15A-941(a), (d) (2015) (emphasis added).
Thus, N.C. Gen. Stat. § 15A-941 provides a formal mechanism for
arraignments that a criminal defendant may elect to invoke. However, it is not
uncommon for a defendant to forego the procedure set out in § 15A-941 and for his
arraignment to take place more informally.
Such was the case here. Defendant never requested a formal arraignment
pursuant to N.C. Gen. Stat. § 15A-941. Thus, his right to be formally arraigned by
means of this statutory procedure was deemed waived on or about 2 August 2010 —
21 days after he was indicted. Defendant’s arraignment did not occur until the first
day of his trial on 11 May 2015.
MR. ROSENTRATER: Nothing further as far as pretrial
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motions. Just for the sake of the record, let’s go ahead and
identify where we are.
This is page 2 of the trial section of the calendar, Mr.
Clayton Jones, charged with three [sic] counts of second-
degree exploitation of a minor. I suppose technically I
would move to join those.
MR. ROOSE: No objection.
THE COURT: Motion granted.
MR. ROSENTRATER: And to those charges, Mr. Roose,
how does your client plead?
MR. ROOSE: The Defendant pleads not guilty.
At no time did Defendant object in the trial court to the absence of a more
formal or earlier arraignment. Instead, he simply pled not guilty at which point the
trial proceeded. Moreover, at oral argument in this Court counsel for Defendant
conceded that Defendant was, in fact, arraigned on 11 May 2015 and has not raised
in this appeal any argument suggesting that the 11 May 2015 arraignment was in
any way legally deficient. Therefore, because Defendant’s arraignment occurred after
the effective date of the constitutional amendment and accompanying session law,
the trial court was constitutionally authorized to accept Defendant’s waiver of his
right to a jury trial.
II. Consideration by Trial Court of Inadmissible Evidence
Defendant next asserts that because Judge Craig served both as the factfinder
at trial and as the judge who ruled on Defendant’s pre-trial motion in limine, he was
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necessarily aware of Defendant’s involuntary confession to downloading the images
at issue. Therefore, Defendant argues, Judge Craig’s ability to serve as a fair and
impartial factfinder at Defendant’s trial was “tainted” by his knowledge of
Defendant’s suppressed statements.
It is important to note that Defendant chose to waive his right to a trial by jury
and proceed with a bench trial. He did so with full knowledge that the same trial
judge who had ruled on his motion in limine would also serve as the judge at his
bench trial. Therefore, Defendant cannot now argue on appeal that he was prejudiced
as a result of his own strategic decision to waive his right to a trial by jury and allow
Judge Craig to serve as the factfinder at his bench trial. See State v. Cook, 218 N.C.
App. 245, 249, 721 S.E.2d 741, 745 (“[A] defendant who invites error has waived his
right to all appellate review concerning the invited error, including plain error
review.” (citation and quotation marks omitted)), appeal dismissed and disc. review
denied, __ N.C. __, 724 S.E.2d 917 (2012).1
Furthermore, Defendant’s argument ignores the well-established principle
that “the trial court is presumed to disregard incompetent evidence in making its
decisions as a finder of fact.” State v. Jones, 186 N.C. App. 405, 411, 651 S.E.2d 589,
593 (2007); see also In re Cline, 230 N.C. App. 11, 14, 749 S.E.2d 91, 94 (2013) (“Where
1 We note that the record is devoid of any indication that Defendant expressed concern in the
trial court over Judge Craig serving as his trial judge after having also ruled on Defendant’s motion
in limine.
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the matter was heard without a jury, it is presumed that the trial court considered
only admissible evidence[.]”), disc. review denied, 367 N.C. 293, 753 S.E.2d 781, cert.
denied, __ U.S. __, 190 L.Ed.2d 100 (2014).
Because trial judges are presumed to ignore inadmissible evidence when they
serve as the finder of fact in a bench trial, no prejudice exists simply by virtue of the
fact that such evidence was made known to them absent a showing by the defendant
of facts tending to rebut this presumption. Here, Defendant has failed to make any
such showing. Therefore, Defendant’s argument on this issue is meritless.
III. Fatal Variance
Defendant next argues that a fatal variance existed between his indictments
and the evidence presented at trial. Specifically, he contends that while the
indictments stated that he received the pornographic images on 17 December 2009,
the evidence at trial established the date of receipt as 18 October 2009. As a result,
he asserts he was prejudiced.
Pursuant to N.C. Gen. Stat. § 14-190.17, a person commits
second-degree sexual exploitation of a minor when,
knowing the nature or content of the material, he
(1) Records, photographs, films, develops, or
duplicates material that contains a visual
representation of a minor engaged in sexual activity;
or
(2) Distributes, transports, exhibits, receives, sells,
purchases, exchanges, or solicits material that
contains a visual representation of a minor engaged
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Opinion of the Court
in sexual activity.
State v. Williams, 232 N.C. App. 152, 156, 754 S.E.2d 418, 421 (citation omitted and
emphasis added), appeal dismissed and disc. review denied, 367 N.C. 784, 766 S.E.2d
846 (2014).
Defendant argues that the inconsistency between the date of his purported
receipt of the images as listed in the indictments and the date established by the
evidence at trial constitutes a fatal variance, contending that time is an essential
element of the offense of second-degree sexual exploitation of a minor.
An indictment must include a designated date or
period of time within which the alleged offense occurred.
However, this Court has recognized that a judgment should
not be reversed when the indictment lists an incorrect date
or time if time was not of the essence of the offense, and the
error or omission did not mislead the defendant to his
prejudice. Generally, the time listed in the indictment is
not an essential element of the crime charged. This general
rule, which is intended to prevent a defendant who does not
rely on time as a defense from using a discrepancy between
the time named in the bill and the time shown by the
evidence for the State, cannot be used to ensnare a
defendant and thereby deprive him of an opportunity to
adequately present his defense.
We have held that a variance as to time becomes
material and of the essence when it deprives a defendant
of an opportunity to adequately present his defense.
State v. Stewart, 353 N.C. 516, 517-18, 546 S.E.2d 568, 569 (2001) (internal citations,
quotation marks, brackets, and ellipses omitted).
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In support of his position, Defendant relies upon State v. Riffe, 191 N.C. App.
86, 661 S.E.2d 899 (2008) — a case involving multiple counts of third-degree sexual
exploitation of a minor.2 In Riffe, the date of the offenses contained in the indictments
was inconsistent with the date of the offenses established at trial. Id. at 93, 661
S.E.2d at 904-05. The defendant’s computer had already been seized and was in the
possession of the Sheriff’s Office on 30 August 2004 — the day that the indictments
stated he was in possession of child pornography found on his computer. The evidence
at trial, however, showed that the files were saved on the computer’s hard drive and
last accessed by the defendant on 11 February 2004. During the second day of trial,
the State moved to amend the indictments in order to reflect the proper date of the
offenses, and the trial court allowed the amendment over the defendant’s objection.
Id. at 93, 661 S.E.2d at 905.
On appeal, we stated the following on this issue:
In order to prevail, defendant must show a fatal variance
between the offense charged and the proof as to an
essential element of the offense. In the instant case, the
amendment was made regarding the time of the alleged
criminal conduct. Thus, if time is not an essential element
of N.C. Gen. Stat. § 14-190.17A(a), an amendment relating
2 We have held that third-degree sexual exploitation of a minor and second-degree sexual
exploitation of a minor are separate and distinct offenses. See State v. Williams, 232 N.C. App. 152,
159-60, 754 S.E.2d 418, 424 (“[W]e believe that the Legislature’s criminalization of both receiving and
possessing such images was not intended merely to provide for the State a position to which to recede
when it cannot establish the elements of the greater offense, but rather to prevent or limit two separate
harms to the victims of child pornography.” (internal citation and quotation marks omitted)), appeal
dismissed and disc. review denied, 367 N.C. 784, 766 S.E.2d 846 (2014).
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to the date of the offense is permissible since the
amendment would not substantially alter the charge set
forth in the indictment. As we have set out above, the
elements of N.C. Gen. Stat. § 14-190.17A(a) include only
the elements of knowledge and possession.
A variance as to time, however, becomes material and of
the essence when it deprives a defendant of an opportunity
to adequately present his defense.
Id. at 93-94, 661 S.E.2d at 905 (internal citations, quotation marks, brackets, ellipses,
and emphasis omitted). We concluded that because “defendant did not present an
alibi defense and time is not an element of the offense, we therefore find no error as
to this issue.” Id. at 94, 661 S.E.2d at 905.
Thus, Riffe establishes that time is not an element of third-degree sexual
exploitation of a minor. We decline Defendant’s invitation to read into Riffe any sort
of implicit holding that — unlike the case with third-degree sexual exploitation of a
minor — time is, in fact, an element of second-degree sexual exploitation of a minor.
While Riffe reiterates the general rule that a variance as to time becomes
material if it deprives the defendant of his ability to prepare a defense, Defendant did
not attempt to advance an alibi defense or any other time-based defense at trial. Nor
has he argued on appeal that he would have done so had the indictment listed the
date of the offense as 18 October 2009. See State v. Hensley, 120 N.C. App. 313, 324-
25, 462 S.E.2d 550, 556-57 (1995) (“Defendant asserts the presence of a fatal variance
between the indictment and the proof offered at trial with respect to the date of the
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alleged offense. This argument cannot be sustained. . . . [W]e note defendant suffered
no prejudice as his defense was based upon complete denial of the charge rather than
upon alibi for the date set out in the indictment.”). Accordingly, Defendant’s
argument on this issue is overruled.
IV. Motions to Dismiss
Defendant’s final argument on appeal is that the trial court erred by denying
his motions to dismiss at the close of the State’s evidence and at the close of all the
evidence. Specifically, Defendant contends that the State failed to establish the
knowledge element of the offense of second-degree sexual exploitation of a minor. We
disagree.
“Upon defendant’s motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant’s being the perpetrator of
such offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation
omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). Substantial evidence is
evidence that a reasonable mind might accept as adequate to support a conclusion.
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In reviewing
challenges to the sufficiency of the evidence, we must view the evidence in the light
most favorable to the State, giving the State the benefit of all reasonable inferences.
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
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“Circumstantial evidence may withstand a motion to dismiss and support a
conviction even when the evidence does not rule out every hypothesis of innocence.”
State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). If the court decides
that a reasonable inference of the defendant’s guilt may be drawn from the
circumstances, then “it is for the jury to decide whether the facts, taken singly or in
combination, satisfy them beyond a reasonable doubt that the defendant is actually
guilty.” State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (citation,
quotation marks, ellipses, and emphasis omitted). When ruling on a motion to
dismiss, the trial court should only be concerned with whether “the evidence is
sufficient to get the case to the jury; it should not be concerned with the weight of the
evidence.” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
Defendant contends that the only evidence presented at trial tending to show
that he was aware of the contents of the pornographic files found on his computer
was the fact that he “hung his head” when Detective Maness informed him that he
and Detective Chabot were executing a search warrant of his parents’ home for child
pornography.
However, even putting aside the question of whether — and to what extent —
body language can in appropriate circumstances serve as admissible evidence of a
person’s state of mind, other competent evidence was presented by the State at
Defendant’s trial on the knowledge element of the offense. The State’s evidence
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showed that (1) the files in question had been manually downloaded directly to
Defendant’s computer using the Gnutella software file-sharing program; (2) the files
downloaded had titles clearly indicating that they contained pornographic images of
children; (3) the only user listed on the computer login screen was “Clay”; (4) the files
were manually transferred from the Gnutella program to the computer’s trash bin;
and (5) the MacBook was found in Defendant’s room partially concealed under his
mattress.
It is well established that “[k]nowledge and intent, as processes of the mind,
are often not susceptible of direct proof and in most cases can be proved only by
inference from circumstantial evidence.” State v. Sink, 178 N.C. App. 217, 221, 631
S.E.2d 16, 19, disc. review denied, 360 N.C. 581, 636 S.E.2d 195 (2006). We believe
the above-referenced evidence constitutes sufficient circumstantial evidence of
Defendant’s knowledge of the contents of the files discovered on his computer.
Consequently, the trial court did not err in denying Defendant’s motions to dismiss.3
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial
free from prejudicial error.
NO PREJUDICIAL ERROR.
3Because Defendant only challenges the sufficiency of the evidence to support the knowledge
element of the second-degree sexual exploitation of a minor charges, we need not address the
remaining elements of this offense.
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Judges ELMORE and HUNTER, JR. concur.
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