## Facts

- A 13-year-old girl (“Beth”), born in March 1995, met Yasmin Pecolia Breathette (age 19) online.
- Beth’s online profile listed her age as “99,” and she told Breathette she was 17.
- The two communicated frequently by text and phone, including sexual discussions, and arranged to meet.
- On June 4, 2008, Breathette drove from North Carolina to South Carolina, picked Beth up, and brought her to Winston-Salem for the weekend.
- Over the weekend, the two engaged in sexual activity, including kissing, mutual touching, and oral sex.
- After a dispute, police became involved; Beth was returned home, and Breathette admitted meeting Beth online and engaging in sexual relations.
- Breathette was tried and convicted in superior court of taking indecent liberties with a minor under N.C. Gen. Stat. § 14-202.1.
- At trial, Breathette testified she believed Beth was at least 17 (and possibly over 18) based on Beth’s representations and online information.
- The defense requested a jury instruction that a reasonable mistake about Beth being over 15 negated the intent required for indecent liberties; the trial court refused.

## Issues

1. Whether a defendant’s reasonable mistake about a victim’s age is a defense to taking indecent liberties with a child under N.C. Gen. Stat. § 14-202.1.
2. Whether the trial court erred by refusing to instruct the jury on a mistake-of-age theory.

## Decision

- The Court of Appeals affirmed the conviction.
- The court held that mistake of age is not a defense to the offense of taking indecent liberties with a child under § 14-202.1.
- Because the requested instruction rested on a nonrecognized defense and misstated the law, the trial court properly refused to give it.
- The court found no instructional error.

## Legal Principles

- Under N.C. Gen. Stat. § 14-202.1, the State must prove the defendant acted for the purpose of arousing or gratifying sexual desire and that the victim was under the protected age, but the statute does not require proof that the defendant knew the victim’s age.
- The victim’s age functions as a defining condition of the protected class for this offense; a defendant’s belief about age does not negate the statute’s specified intent element.
- When the legislature intends knowledge-of-age requirements or mistake-of-age defenses in sexual-offense statutes, it does so expressly; the absence of such language in § 14-202.1 indicates no mistake-of-age defense.
- A trial court need not instruct the jury on a proposed defense theory that is not legally available.

## Conclusion

The court upheld the indecent-liberties conviction, ruling that a reasonable mistake about the victim’s age does not excuse or negate liability under N.C. Gen. Stat. § 14-202.1 and that the trial court correctly declined to instruct the jury on such a defense.


State v. Breathette, 690 S.E.2d 1 (N.C. Ct. App. 2010)