North Carolina v. Breathette

690 S.E.2d 1 (2010)

Facts

Beth was born in March 1995. When Beth was 13 years old, she met D, who was 19 at the time, on the social networking website MySpace and the two began messaging. Beth's MySpace page indicated that she was 99 years old because she did not 'want people to know [her] real age.' Beth told D that she was 17. The two discussed 'chilling' together at D's apartment, exchanged cell phone numbers, and began texting and calling each other on a daily basis. D asked Beth whether she was a lesbian, and Beth told her that she was gay. When texting or talking, they would sometimes discuss 'sexual stuff.' Sometimes Beth would initiate the sexual conversations and sometimes it was D. D drove from her apartment and picked up Beth at a designated spot, and drove back to Winston-Salem for the weekend. D and Beth kissed. D and Beth later got into D's bed, where Beth gave D a 'hickey' on her neck. D kissed Beth's breast, digitally penetrated her vagina, and performed oral sex on her. After about 10 minutes, they went to sleep. D and Beth got into an argument and wanted to go home but slept there anyway. D left for work on Saturday morning before Beth woke up and Beth texted and called asking for a ride home. When D's supervisor overheard her yelling loudly on the phone at work, she was fired from her job. D collected Beth's things, threw them out into the front yard, and locked her out of the apartment. Beth contacted Amanda, one of D's friends that she had met during the weekend, and Amanda let Beth spend Saturday night at her house. Amanda dropped Beth off at Francesca's house, where Beth told Francesca's mother about her fight with D and that they had done 'sexual stuff.' Francesca's mother called the police, who came to get Beth. 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's mother arrived in Winston-Salem that evening and drove her home. The police interviewed Beth, and her MySpace page had been changed to 18. D told police that they had 'fingered' each other, but that only she had performed oral sex. D 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. D pled not guilty, and a jury trial was conducted 13-15 April 2009. 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. D 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 D of both charges and sentenced to 14-17 months in prison. D appealed.