State v. Shelton, COA23-729, ___ N.C. App. ___ (Mar. 19, 2024)

In this Surry County case, defendant appealed his conviction of first-degree sexual exploitation of a minor, arguing error in denying his motion to dismiss for insufficient evidence showing he took photographs of a minor which depicted “sexual activity.” The Court of Appeals found no error. 

In 2021, defendant took nude photographs of his girlfriend’s daughter after promising to buy her whatever she wanted for Christmas. The girl eventually told her school guidance counselor, who reported it to the sheriff’s office. Defendant admitted he had taken pictures of the girl during an interview with law enforcement, but said he deleted the pictures the next day. At trial, the State presented testimony from the guidance counselor, law enforcement officers, and a video of defendant’s confession, while defendant did not present any evidence. Defendant moved to dismiss at the close of evidence but the trial court denied the motion.

Defendant argued that the State “failed to present direct evidence that the photographs showed sexual activity” for sexual exploitation of a minor under G.S. 14-190.16. Slip Op. at 4. The Court of Appeals noted the two relevant cases in this area exploring “sexual activity” in photographs of minors, State v. Ligon, 206 N.C. App. 458 (2010), and State v. Corbett, 264 N.C. App. 93 (2019). The court found the current case more similar to Corbett when looking at the “lascivious way” the photographs exhibited the girl’s body. Slip Op. at 8. Although defendant argued that the photographs themselves must be present in evidence, the court disagreed, noting that defendant “failed to show precedent which states the photographs must be available at trial to prove the charge of sexual exploitation.” Id. at 11.