NO. COA13-1283

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Wilson County

Nos. 12 CRS 3002-3

GREGORY PARKS

Appeal by defendant from judgments entered 11 February 2013 

by Judge Quentin T. Sumner in Wilson County Superior Court. 

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Joseph L. Hyde, for the State.

M. Alexander Charns for defendant-appellant.

McCULLOUGH, Judge.

Defendant Gregory Kent Parks appeals the denial of his 

motion to dismiss two counts of participating in the 

prostitution of a minor. Where the State failed to produce 

substantial, independent corroborative evidence to support the 

facts underlying defendant’s extrajudicial statement, in 

violation of the corpus delicti rule, we reverse defendant’s 

challenged convictions.

I. Background
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On 10 September 2012, defendant was indicted on two counts 

of first-degree sexual offense in violation of N.C. Gen. Stat. § 

14-27.4 and attaining habitual felon status. On 14 January 

2013, defendant was charged by superseding indictment with two 

counts of participating in the prostitution of a minor in 

violation of N.C. Gen. Stat. § 14-190.19(a).

On 16 November 2013, Wilson County Superior Court Judge 

Milton F. Fitch entered an order, sua sponte, which provided the 

following:

Upon review, the Court determined that 

in order to prevent any further delay of the 

Defendant’s cases and guarantee Defendant’s 

right to a speedy trial that the SBI 

laboratory expedite and conduct any and all 

testing of any materials submitted and held 

relating to these cases.

This Court hereby orders that the N.C. 

SBI laboratory expedite and perform DNA 

analysis and any other requested testing on 

any and all materials submitted to and held 

by the N.C. SBI Laboratory in these cases; 

and a laboratory report of the results to 

these ordered analysis be returned to the 

submitting parties and to District 

Attorney’s Office of the Seventh 

Prosecutorial District no later than 

December 21, 2012.

Prior to trial, on 1 February 2013, defendant filed a 

motion to dismiss the charges against him for failure by the 

State to test or properly preserve DNA specimens in his case and 
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for failure to follow a 16 November 2012 order requiring the SBI 

laboratory to conduct any and all testing of any materials 

submitted and held relating to defendant’s case. The trial 

court denied this motion.

Defendant’s trial commenced at the 4 February 2013 criminal 

session of Wilson County Superior Court. A.J. testified that on 

the evening of 15 June 2012, she was at home with her friend, 

D.T.1 D.T. was on the phone with defendant. D.T. told A.J. that 

defendant “was going to give her some marijuana for free if I 

walked down there with her, so I walked with her down the 

street.” Defendant lived “three houses down, right up the 

street.” When A.J. and D.T. arrived at defendant’s house, 

defendant answered the door and said, “[w]ill you come in?” 

After they walked inside, defendant closed the door behind them.

A.J. testified to the following:

Well, we got in the home, there was an older 

man [(defendant’s father)] in a wheelchair 

in there, and he said, “Well, y’all can walk 

on back here, follow me to my room.” He 

said, “I’m not going to give you the 

marijuana out here.” [So] I followed [D.T.] 

and [defendant] back to his room. And when 

we got in the bedroom, he pulled out a 

knife.

 

1Because A.J. and D.T. were minors during the commission of the 

alleged crimes, both seventeen years old in 15 June 2012, 

initials are used to protect their identities.
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Defendant had closed his bedroom door. Defendant put the knife 

to A.J.’s neck and said “he was going to kill me if I didn’t 

take my clothes off. . . . He told both of us to take our 

clothes off before he killed us.”

A.J. testified that defendant went into an adjoining 

bathroom, returned with pills, and told the girls “to take the 

pills or he was going to kill us.” A.J. took one pill. 

After [defendant] got the pills and made us 

take them, he told us -– well, we were lying 

on the bed, and he just got on top of us -–

on me first, and he started licking me on my 

vagina, and then he went over to [D.T.], and 

he started licking on her vagina, and then 

he told me to just wait until he finished 

her.

Defendant went back and forth between A.J. and D.T. until A.J. 

stabbed him with a scalpel in the head. A.J. testified that she 

had brought a scalpel from her house and kept it in her coat 

pocket. After stabbing defendant, A.J. and D.T. ran out of the 

bedroom and unsuccessfully attempted to exit the house through a 

locked side door. Defendant’s father was telling defendant “to

stop and to let us go and that he was tired of him doing it.”

While A.J. and D.T. were standing by the back door, defendant 

stated, “[w]ell, you made my dad mad, I’m going to kill you[.]”

Defendant’s father followed A.J. and D.T. back to the bedroom 
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“to get [our] clothes.” After they put their clothes back on, 

defendant opened the door and A.J. and D.T. went home.

A.J. called the police. A.J. initially reported to police 

that she and D.T. were on their way to McDonald’s when defendant 

“grabbed” them, pulled out a knife, forced them to take drugs 

and pills, and sexually assaulted them. She admitted at trial 

that when she first spoke with police, she did not “tell the 

truth at first, because I was afraid that I might get in trouble 

because I’m going to get some marijuana with a friend.” In 

addition, A.J. testified that defendant did not solicit sex in 

exchange for money or marijuana.

D.T. testified that on the evening of 15 June 2012, she was 

at A.J.’s house when defendant called her. Defendant said “he 

was going to give [A.J.] a bag of some weed[.]” D.T. testified 

that there was no agreement between defendant and herself for 

sex, an exchange of marijuana for sex, or an exchange of money 

for sex. A.J. and D.T. walked to defendant’s house. Defendant 

took them into his bedroom. The three sat on his bed and 

defendant took out pills from his pocket. Defendant then 

proceeded to pull out a pocketknife and stated, “I’m crazy, I’ve 

been doing this for years, and y’all -– y’all take off y’all’s 
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clothes now. I ain’t playing with y’all.” D.T. used the 

bathroom that was adjoined to the bedroom and called the police.

Defendant forced D.T. and A.J. to take their clothes off 

and lay on the bed. Defendant put his “tongue in [their] 

vagina[s].” D.T. grabbed a scalpel from a pocketbook, passed it 

to A.J., and A.J. stabbed defendant in the back of his head. 

A.J. and D.T. ran out of the bedroom, but encountered a locked 

door. Defendant’s father told defendant, “Gregory, just let 

them go, just let them go.” Defendant began shouting, “[d]addy, 

shut up. Y’all going to make my daddy have a heart attack. You 

shut up.” Defendant’s father then followed A.J. and D.T. back 

to defendant’s bedroom and they put on their clothes. 

Afterward, A.J. and D.T. left defendant’s home, returned to 

A.J.’s house, and called the police.

D.T. admitted that she lied in her first statement to the 

police when she reported the following:

Well, the first time I told -– I told that 

we had went -– we was on the way to 

McDonald’s and he had snatched us up; which, 

it was a lie. I knew it was a lie when we 

told y’all that we was going to McDonald’s 

and stuff and he snatched us up. That ain’t 

it. It really was that we had went to go do 

some weed, like, he had called the phone and 

said he was gonna give us [weed.]
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Detective Michael Thomas Harrell of the Wilson Police 

Department testified that on the morning of 16 June 2012, 

defendant gave the following statement to police:

On Wednesday, I called [A.J.] for the first 

time. I see her around the neighborhood and 

say, ‘Hey,’ when I see her. She had some 

drama on Wednesday, so I called her to see 

what happened. We talked for about an hour 

before she asked me if I could get any weed. 

I told her I might could get some weed. She 

said she would get back up with me on 

Friday. I tried to call her . . . She 

called me back, and I told her I had 

something for her. She asked if I had any 

money. I said, ‘Yeah, I got some money.’ 

She said she was waiting on her friend. She 

called me back about three times and asked 

which house to come to. . . . [A.J.] asked, 

and said, “You are supposed to have 

something waiting on me.” I said, “Why, did 

you bring something?” We went back to my 

room and I asked what they were working 

with. They both took their clothes off. 

[A.J.] asked about the money, again, and I 

played it off, because I didn’t have much 

money for them. They told me to get them 

going, so I was touching on them and eating 

them out, switching back and forth. When I 

went back down on [D.T.], [A.J.] hit me in 

the back of the head, and I said, ‘What the 

f***?’ She went for the door. I think she 

went in the drawer where I had pointed to 

earlier when I said I got some money. I 

don’t know if they set me up or not.

On 11 February 2012, a jury found defendant guilty of both 

counts of participating in the prostitution of a minor and not 

guilty of both charges of first-degree sexual offense. 
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Defendant pled guilty to having attained habitual felon status. 

Defendant was sentenced to two consecutive terms of 127 to 165 

months. Defendant appeals.

II. Discussion

On appeal, defendant argues that the trial court erred by 

(A) denying his motion to dismiss two counts of participating in 

the prostitution of a minor based on insufficiency of the 

evidence and based on a fatal variance between the indictments, 

jury charge, and proof at trial; (B) admitting evidence in 

violation of Rule 404(b) of the North Carolina Rules of 

Evidence; (C) violating his constitutional rights under the 

Sixth Amendment of the United States Constitution; (D) denying 

his motion to dismiss based on a failure to obey a court order 

to test evidence; and (E) allowing amendment of the superseding 

indictments.

A. Motion to Dismiss the Charges of Participating in the 

Prostitution of a Minor

Defendant argues that the trial court erred by denying his 

motion to dismiss the charges of participating in the 

prostitution of a minor charges for insufficiency of the 

evidence. Specifically, defendant contends that the State 

failed to present sufficient evidence that defendant “patronized 
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a minor prostitute.” Defendant argues that the State 

erroneously relied solely on defendant’s extrajudicial statement 

to prove his guilt, without providing other corroborating 

evidence in violation of the corpus delicti rule. We agree.

Before reaching the merits of defendant’s arguments, we 

address the State’s contention that defendant failed to raise 

the issue of a violation of the corpus delicti rule at trial and 

that, as a result, he has failed to preserve this issue for 

appellate review. Pursuant to Rule 10(a)(1) of the North 

Carolina Rules of Appellate Procedure, we note that in order to 

preserve an issue for appellate review,

a party must have presented to the trial 

court a timely request, objection, or 

motion, stating the specific grounds for the 

ruling the party desired the court to make 

if the specific grounds were not apparent 

from the context. It is also necessary for 

the complaining party to obtain a ruling 

upon the party’s request, objection, or 

motion.

N.C. R. App. P. Rule 10(a)(1) (2013). However, after thoroughly 

reviewing the transcript of defendant’s trial, we hold that 

although defense counsel did not use the exact words “corpus 

delicti” in arguing that the trial court grant defendant’s 

motion to dismiss the charges of promoting the prostitution of a 

minor based on the insufficiency of the evidence, the substance 
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of the argument was sufficiently presented to the trial court. 

Accordingly, we proceed to the merits of defendant’s arguments. 

See State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682

(2003) (holding that “[a]lthough defendant did not raise his 

double jeopardy argument using those exact words, the substance 

of the argument was sufficiently presented, and more 

importantly, addressed by the trial court in finalizing its 

instructions to the jury”).

When reviewing a defendant’s motion to 

dismiss a charge on the basis of 

insufficiency of the evidence, this Court 

determines whether the State presented 

substantial evidence in support of each 

element of the charged offense. Substantial 

evidence is relevant evidence that a 

reasonable person might accept as adequate, 

or would consider necessary to support a 

particular conclusion.

State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012) 

(citation omitted). “This Court reviews the trial court’s 

denial of a motion to dismiss de novo and views the evidence in 

the light most favorable to the State, giving the State every 

reasonable inference therefrom, and resolving any contradictions 

or discrepancies in the State’s favor.” State v. Miles, __ N.C. 

App. __, __, 730 S.E.2d 816, 822 (2012) (citation omitted).
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In light of these principles, we consider the elements of 

the offense of participating in the prostitution of a minor. 

Pursuant to N.C. Gen. Stat. § 14-190.192,

[a] person commits the offense of 

participating in the prostitution of a minor 

if he is not a minor and he patronizes a 

minor prostitute. As used in this section, 

“patronizing a minor prostitute” means:

(1) Soliciting or requesting a minor 

to participate in prostitution;

(2) Paying or agreeing to pay a minor, 

either directly or through the 

minor’s agent, to participate in 

prostitution; or

(3) Paying a minor, or the minor’s 

agent, for having participated in

prostitution, pursuant to a prior 

agreement.

N.C. Gen. Stat. § 14-190.19 (2011).

Defendant relies on the North Carolina Supreme Court’s 

holding in State v. Smith, 362 N.C. 583, 669 S.E.2d 299 (2008). 

In Smith, the issue before the Court was whether there was 

substantial corroborating evidence independent of the 

defendant’s extrajudicial confession sufficient to sustain a 

conviction for first-degree sexual offense. Id. at 585, 669 

S.E.2d at 301. The Court noted that in order to find a 

 

2We note that, effective 1 October 2013, N.C. Gen. Stat. § 14-

190.19 was repealed by Session Laws 2013-368, s. 4. The current 

statute is applicable to offenses committed on or after 1 

October 2013. However, because the events of this case took 

place on 15 June 2012, the former statute applies.
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defendant guilty of first-degree sexual offense, the State must 

prove, beyond a reasonable doubt, that

(1) the defendant engaged in a sexual act 

with a victim who is under the age of 

thirteen, and (2) the defendant is at least 

twelve years old and at least four years 

older than the victim. A sexual act, as 

defined by statute, means “cunnilingus, 

fellatio, analingus, or anal intercourse, 

but does not include vaginal intercourse. 

Sexual act also means the penetration, 

however slight, by any object into the 

genital or anal opening of another person’s 

body[.]” Fellatio is defined as “any 

touching of the male sexual organ by the 

lips, tongue, or mouth of another person.”

Id. at 592-93, 669 S.E.2d at 306 (citations omitted). The Smith

Court stated that “[u]nder the corpus delicti3 rule, the State 

may not rely solely on the extrajudicial confession of a 

defendant, but must produce substantial independent 

corroborative evidence that supports the facts underlying the 

confession.” Id. at 588, 669 S.E.2d at 303 (citing State v. 

Parker, 315 N.C. 222, 337 S.E.2d 487 (1985)).

The Smith victim “twice denied that a first-degree sexual 

offense ever occurred.” Id. at 593, 669 S.E.2d at 306. In 

reviewing the defendant’s extrajudicial confession, the 

defendant provided that the victim “unzipped his pants, removed 

 

3“The term corpus delicti literally means ‘body of the crime.’” 

State v. Smith, 362 N.C. 583, 589, 669 S.E.2d 299, 304 (2008) 

(citations omitted).
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his penis, and attempted fellatio, but that he could not achieve 

an erection because of his alcohol consumption.” Id. (emphasis 

in original). The Smith Court stated that taking into 

consideration the defendant’s extrajudicial confession alone, “a 

jury could not determine beyond a reasonable doubt that [the 

victim’s] mouth ever made contact with [the] defendant’s penis, 

which is a required element in a sexual offense prosecution.” 

Id. at 593-94, 669 S.E.2d at 306.

The State argued that several pieces of corroborative 

evidence, along with the defendant’s extrajudicial confession, 

were sufficient under the corpus delicti rule to sustain a 

conviction for first-degree sexual offense, but the Smith Court 

disagreed. The State first argued that the defendant’s trial 

testimony that he felt “something” touch his penis was strongly 

corroborative, but the Court held that, “[l]ike the 

extrajudicial confession, this statement is also vague; it is 

not clear from the record what this ‘something’ was.” Id. at 

594, 669 S.E.2d at 307. Next, the State argued that defendant’s 

statement to the victim’s brother that “he had let [the victim] 

give him oral sex” was strongly corroborative. The Smith Court 

held that the corroborating evidence supporting the defendant’s 

extrajudicial confession must be substantial and independent, 
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and that this statement was not independent because it was 

derived immediately following defendant’s extrajudicial 

confession elicited by a detective. Id. Lastly, the State 

argued that several pieces of “opportunity evidence” – testimony 

from both the defendant and the victim that they were alone 

together in a bedroom as well as testimony from the victim’s 

brother that he left the victim with the defendant – were 

sufficient to sustain the defendant’s conviction. The Smith

Court held that because “no independent proof, such as physical 

evidence or witness testimony, of any crime [could] be shown[,]” 

the opportunity evidence was not strong enough to establish the 

corpus delicti of first-degree sexual offense. Id. at 595-96, 

669 S.E.2d at 307-308. Based on the foregoing, the Smith Court 

held that the State “ha[d] not met its burden [of providing] 

strong corroboration evidence relevant to the essential facts 

and circumstances of [the] defendant’s extrajudicial confession”

and reversed the defendant’s conviction. Id. at 596, 669 S.E.2d 

at 308.

Similar to the facts found in Smith, in the case sub 

judice, although A.J. and D.T. gave several differing accounts 

of the events that took place on the evening of 15 June 2012, 

both A.J. and D.T. testified at trial that defendant did not 
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solicit sex from them in exchange for money or marijuana. 

Furthermore, we find defendant’s extrajudicial statement 

regarding an alleged exchange of sex for money or marijuana with 

A.J. and D.T. to be vague. Defendant’s extrajudicial statement 

provided the following, in pertinent part:

[A.J.] asked if I had any money. I said, 

‘Yeah, I got some money.’ She said she was 

waiting on her friend. She called me back 

about three times and asked which house to 

come to. . . . [A.J.] asked, and said, “You 

are supposed to have something waiting on 

me.” I said, “Why, did you bring 

something?” We went back to my room and I 

asked what they were working with. They 

both took their clothes off. [A.J.] asked 

about the money, again, and I played it off, 

because I didn’t have much money for them.

The State argues that “an agreement to exchange sex for 

marijuana might be inferred even without Defendant’s statements” 

and that other independent evidence corroborated defendant’s 

extrajudicial confession. However, after careful review, we are 

not persuaded. The record is insufficient to strongly 

corroborate the essential element that defendant patronized a 

minor prostitute in order to convict defendant of participating 

in the prostitution of a minor. Because the State did not meet 

its burden in violation of the corpus delicti rule, we hold that 

the trial court erred by failing to grant defendant’s motion to 
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dismiss. Accordingly, we reverse defendant’s conviction of two 

counts of participating in the prostitution of a minor.

Based on the disposition of defendant’s first argument, it 

is unnecessary for us to address his remaining arguments on 

appeal.

Reversed.

Judges HUNTER, Robert C., and GEER concur.