State v. Corey

• Court: Supreme Court of North Carolina
• Decided: December 6, 2019
• Docket: 189PA18
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 189PA18

Filed 6 December 2019

STATE OF NORTH CAROLINA

v. KURT ALLEN COREY

On discretionary review pursuant to N.C.G.S. § 7A-31-31 of a unanimous,

unpublished decision of the Court of Appeals, No. COA17-1031, 2018 WL 2642772

(N.C. Ct. App., June 5, 2018), affirming, in part, and vacating and remanding, in part,

a judgment entered on 15 December 2016 by Judge William R. Bell in the Superior

Court, Burke County. Heard in the Supreme Court on 4 March 2019.

Joshua H. Stein, Attorney General, by Amy Kunstling Irene, Special Deputy Attorney General, for the State-appellant

Franklin E. Wells, Jr., for defendant-appellee.

ERVIN, Justice

The issue that the parties have presented for our consideration in this case is

whether the Court of Appeals correctly held that defendant Kurt Allen Corey was

entitled to a new hearing concerning the existence of a statutory aggravating factor

on the grounds that the trial court failed to conduct a jury instruction conference prior

to instructing the jury with respect to the manner in which it should determine

whether the relevant aggravating factor did or did not exist. See N.C.G.S. § 15A- STATE V. COREY

Opinion of the Court

1340.16(d)(15) (2017). Although a careful review of the record reveals that the

indictment underlying defendant’s conviction for committing a sex offense with a

child is fatally defective, we are still required to consider the issues that the parties

have presented for our consideration given that the trial court consolidated

defendant’s conviction for committing a sex offense against a child for judgment with

defendant’s conviction for taking indecent liberties with a child. As a result of our

conclusion that defendant’s indictment for committing a sex offense against a child is

fatally defective and our determination that the trial court’s erroneous failure to

conduct a jury instruction conference prior to submission of the existence of the

relevant statutory aggravating factor to the jury did not “materially prejudice”

defendant, we arrest judgment with respect to defendant’s conviction for committing

a sex offense against a child, vacate the trial court’s judgment, and remand this case

to the Superior Court, Burke County, for resentencing based upon defendant’s

conviction for taking indecent liberties with a child.

Shannon1 was born on 16 September 2002. Shannon’s mother married

defendant when Shannon was four years old. After her mother’s marriage to

defendant, Shannon lived with her mother, her two siblings, and defendant, who

assumed the role of Shannon’s father in the family household. When Shannon’s

mother and defendant briefly separated in 2009, Shannon and her two siblings

1 The victim in this case will be referred to as “Shannon,” which is a pseudonym used to protect the victim’s identity and for ease of reading.

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resided with defendant until Shannon’s mother returned to the family home once the

separation had ended.

From 2009 through 2014, defendant forced Shannon to engage in oral sex,

vaginal intercourse, and anal sex while Shannon’s mother was at work. Dr. Terry

Hobbs, a pediatrician who was qualified as an expert in the field of sexual assault

forensics, examined Shannon. Based upon the results of this examination, Dr. Hobbs

testified that Shannon’s demeanor and attitude were consistent with those of a

person who had suffered a traumatic event and that, in his opinion, Shannon had

experienced “constipation encopresis,” a condition consistent with the occurrence of

sexual abuse.

On 16 August 2014, Shannon informed her grandmother that defendant had

regularly engaged in sexual activity with her from the time that she was six years old

until the date in question. Shortly thereafter, Shannon’s grandmother told Shannon’s

mother about Shannon’s accusations against defendant. On 18 August 2014,

Shannon’s mother reported the allegations that Shannon had made against

defendant to a representative of the Caldwell County Sheriff’s Office.

On 1 December 2014, the Burke County grand jury returned bills of indictment

charging defendant with two counts of rape of a child, two counts of committing a

sexual offense with a child, and two counts of taking indecent liberties with a child,

with one of these rapes, sex offenses, and indecent liberties alleged to have taken

place in 2009 and the other rape, sex offense, and indecent liberties alleged to have

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taken place in 2013. The count of the indictment returned against defendant for the

purpose of charging him with committing a sex offense against a child in 2013 alleged

that “on or about the date of offense shown [calendar year 2013] and in the county

named above [Burke] the defendant named above [Kurt Allen Corey] unlawfully,

willfully, and feloniously did engage in a sexual act with Victim #1, a child who was

under the age of 13 years, namely 10 – 11 years of age,” and that, “[a]t the time of the

offense the defendant was at least 18 years of age.” On 24 May 2016, the State

notified defendant that the State intended to prove the existence of the statutory

aggravating factor that “[t]he defendant took advantage of a position of trust or

confidence, including a domestic relationship, to commit the offense” set out in

N.C.G.S. § 15A-1340.16(d)(15) in the event that defendant was convicted of

committing any felony offense.

The charges against defendant came on for trial before the trial court and a

jury at the 12 December 2016 criminal session of the Superior Court, Burke County.

On 15 December 2016, the jury returned verdicts acquitting defendant of committing

a sex offense against a child in 2009, of both counts of rape, and of taking indecent

liberties with a child in 2009 and convicting defendant of committing a sex offense

against a child and taking indecent liberties with a child in 2013. After accepting the

jury’s verdict, the trial court convened a proceeding for the purpose of determining

whether the aggravating factor of which the State had given defendant notice existed.

Neither the State nor the defendant presented additional evidence at this sentencing-

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related proceeding. At the conclusion of this additional proceeding, the jury found as

an aggravating factor that “defendant took advantage of a position of trust or

confidence . . . to commit the offense.” Based upon the jury’s verdicts and its own

determination with respect to the calculation of defendant’s prior record level, the

trial court consolidated defendant’s convictions for judgment, determined that

defendant should be sentenced in the aggravated range, and sentenced defendant to

a term of life imprisonment without the possibility of parole. Defendant noted an

appeal from the trial court’s judgment to the Court of Appeals.

In seeking relief from the trial court’s judgment before the Court of Appeals,

defendant argued, among other things, in reliance upon that Court’s decision in State

v. Hill, 235 N.C. App. 166, 760 S.E.2d 85 (2014), that the trial court had committed

reversible error by failing to conduct a jury instruction conference prior to submitting

the issue of whether the “position of trust or confidence” aggravating factor existed

in this case. On 5 June 2018, the Court of Appeals filed a unanimous, unpublished

opinion holding that the trial court had committed reversible error by failing to

conduct a jury instruction conference before submitting the “position of trust or

confidence” aggravating factor to the jury given that defendant had not been provided

with an adequate opportunity to object to the instructions that the trial court

delivered to the jury concerning the manner in which it should determine whether

that aggravating factor existed. State v. Corey, No. COA17-1031, slip op. at 2, 2018

WL 2642772, at *1 (N.C. Ct. App., June 5, 2018). In reaching this result, the Court

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of Appeals focused its analysis upon N.C.G.S. § 15A-1231(b), which the Court of

Appeals had determined to require that

“Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of the trial, materially prejudiced the case of the defendant.”

Hill, 235 N.C. App. at 170, 760 S.E.2d at 88 (quoting N.C.G.S. § 15A-1231(b) (2013)).

In the Court of Appeals’ view, defendant was entitled to challenge the trial court’s

failure to comply with the requirements set out in N.C.G.S. § 15A-1231(b) (2017) on

appeal even though he had failed to object to any non-compliance with the

requirements of that statutory provision before the trial court, citing State v.

Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000) (stating that, “[w]hen a trial

court acts contrary to a statutory mandate, the defendant’s right to appeal is

preserved despite the defendant’s failure to object during trial”). In addition, the

Court of Appeals noted that the “material prejudice” necessary to support an award

of appellate relief existed in the event that the trial court failed to conduct any charge

conference addressing the manner in which the trial court should instruct the jury

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for the purpose of determining whether the relevant aggravating factor did or did not

exist and did not afford the defendant’s trial counsel an opportunity to object to the

trial court’s instructions relating to the relevant aggravating factor before they were

delivered to the jury, citing Hill, 235 N.C. App. at 172-73, 760 S.E.2d at 90. After

reviewing the record, the Court of Appeals determined that the trial court had failed

to hold the required jury instruction conference before submitting the “position of

trust or confidence” aggravating factor to the jury and had not afforded defendant’s

trial counsel an adequate opportunity to object to the trial court’s instructions

concerning the “position of trust or confidence” aggravating factor. Corey, slip op. at

6, 2018 WL 2642772, at *2. As a result, the Court of Appeals vacated defendant’s

sentence and remanded this case to the trial court for a new proceeding to be

conducted for the purpose of determining whether the “position of trust or confidence”

aggravating factor existed in this case. Id. On 21 September 2018, this Court granted

the State’s request for discretionary review of the Court of Appeals’ decision.

In seeking to persuade us to reverse the Court of Appeals’ decision, the State

argues that the Court of Appeals incorrectly held that the trial court’s failure to

conduct a jury instruction conference prior to submitting the “position of trust or

confidence” aggravating factor to the jury constituted reversible error per se. The

State posits that N.C.G.S. § 15A-1231(b) does not create a statutory mandate which

can support an award of appellate relief in the absence of a contemporaneous

objection at trial, citing State v. Young, 368 N.C. 188, 207, 775 S.E.2d 291, 304 (2015).

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In addition, while a defendant can seek relief on the basis of a trial court’s failure to

comply with a statutory mandate without having taken any action before the trial

court in order to preserve the alleged error for purposes of appellate review, the

existence of such a statutory mandate does not absolve the defendant from the

necessity for establishing that the trial court’s error was prejudicial, citing State v.

Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). As a result, even if it was error for

the trial court to fail to hold a jury instruction conference prior to submitting the issue

of whether the “position of trust or confidence” aggravating factor existed in this case

to the jury, the State contends that the Court of Appeals was still required to find

that the trial court’s error resulted in “material prejudice” to defendant before

overturning the trial court’s judgment.

Moreover, the State argues that, in order to demonstrate “material prejudice,”

defendant was required to show the existence of a reasonable possibility that, had the

error in question not occurred, a different result would have been reached at the

sentencing proceeding, citing N.C.G.S. § 15A-1443(a) (providing that “[a] defendant

is prejudiced by errors relating to rights arising other than under the Constitution of

the United States when there is a reasonable possibility that, had the error in

question not been committed, a different result would have been reached at the trial

out of which the appeal arises”). According to the State, defendant cannot show that

the trial court’s erroneous failure to hold a jury instruction conference prior to

submitting the issue of whether the “position of trust or confidence” aggravating

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factor existed to the jury “materially prejudiced” him given that the trial court

correctly instructed the jury concerning the circumstances under which it should and

should not find the existence of the “position of trust or confidence” aggravating

factor, given that the trial court’s instructions with respect to that issue tracked the

language of N.C.G.S. 15A-1340.16(d)(15), and given that the record contained

overwhelming evidence tending to show the existence of the “position of trust or

confidence” aggravating factor in this case, citing e.g., State v. Tucker, 357 N.C. 633,

639, 588 S.E.2d 853, 857 (2003) (stating that “[a] parent-child relationship is also

indicative of a position of trust and such evidence supports the aggravating factor of

abusing a position of trust”). As a result, the State urges us to reverse the Court of

Appeals’ decision on the grounds that any error that the trial court might have

committed by failing to hold a jury instruction conference prior to submitting the

issue of the existence of the “position of trust or confidence” aggravating factor to the

jury did not result in “material prejudice” to defendant.

In defendant’s view, on the other hand, N.C. Gen. Stat. § 15A-1231(b)

establishes a statutory mandate requiring trial judges to conduct a separate jury

instruction conference before instructing the jury concerning the manner in which it

should determine whether a particular statutory aggravating factor does or does not

exist. Defendant argues that the Court of Appeals has held that no showing of

prejudice is a necessary prerequisite to an award of appeal relief when the trial judge

completely fails to comply with the requirements set out in N.C.G.S. § 5A-1231(b),

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citing Hill, 235 N.C. App. at 173, 760 S.E.2d at 90. The defendant argues that, in

this case, as in Hill, the trial court failed to conduct any jury instruction conference

before submitting the issue of the existence of the “position of trust or confidence”

aggravating factor to the jury, entitling defendant to relief from the jury’s decision to

find the existence of the relevant aggravating factor regardless of whether the trial

court’s error resulted in “material prejudice” to defendant.

In addition, defendant contends that, even if a showing of “material prejudice”

is required, he has made such a showing in this case. According to defendant, the

trial court simply read the relevant language from N.C.G.S. § 15A-1340.16(d)(15) to

the jury without defining either a “position of trust” or a “domestic relationship” and

failed to inform the jury that the “position of trust or confidence” aggravating factor

had to arise from the relationship between Shannon and defendant and only existed

in “very limited circumstances,” citing State v. Mann, 355 N.C. 294, 319, 560 S.E.2d

776, 791 (2002). In defendant’s view, the trial court’s failure to conduct a jury

instruction conference prior to submitting the issue of the existence of the “position

of trust or confidence” aggravating factor to the jury precluded defendant from

objecting to the trial court’s failure to include such information in the instructions

that were provided to the jury relating to the relevant aggravating factor. As a result,

defendant contends that the necessary “material prejudice” existed in this case, so

that the Court of Appeals did not err by determining that he was entitled to a new

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hearing concerning the existence of the “position of trust or confidence” aggravating

factor in this case.

As an initial matter, we are obligated to determine, on our own motion, the

extent to which the trial court and this Court had jurisdiction over this matter.

According to N.C.G.S. § 15-144.2(b) (Supp. 2018), “[i]f the victim is a person under

the age of 13 years, it is sufficient to allege that the defendant unlawfully, willfully,

and feloniously did engage in a sex offense with a child under the age of 13 years,

naming the child, and concluding as required by law,” with “[a]ny bill of indictment

containing the averments and allegations named in this section [being] good and

sufficient in law as an indictment for a sex offense against a child under the age of 13

years.” As we have already noted, the count of the indictment returned against

defendant for the purpose of charging him with committing a sex offense against a

child in 2013 alleged that defendant had committed the crime charged against

“Victim # 1.” Earlier this year, this Court held that the “use of the phrase ‘Victim #

1’ does not constitute ‘naming the child’ ” as required by N.C.G.S. § 15-144.2(b), with

the fact that the victim is named in other portions of the record, such as “the arrest

warrant, original indictment, and proceedings at trial,” being insufficient to excuse

the State’s failure to name the victim as required by N.C.G.S. § 15-144.2(b) given that

the “facial validity [of an indictment] ‘should be judged based solely upon the

language of the criminal pleading in question without giving any consideration to the

evidence that is ultimately offered in support of the accusation contained in that

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pleading,’ ” State v White, 372 N.C. 248, 252–54, 827 S.E.2d 80, 83–84 (2019) (quoting

State v. Ellis, 368 N.C. 342, 347, 776 S.E.2d 675, 679 (2015); see also State v. Benton,

275 N.C. 378. 382, 167 S.E.2d 775, 777 (1969) (stating that “ ‘[a] charge in a bill of

indictment must be complete in itself, and contain all of the material allegations that

constitute the offense charged,’ ” with “allegations in the warrant on which defendant

was originally arrested” being insufficient “to supply a deficiency in the bill of

indictment” (quoting State v. Guffey, 265 N.C. 331, 333, 144 S.E.2d 14, 17 (1965), and

citing 42 C.J.S., Indictments and Informations § 108, p. 990)); State v. Loesch, 237

N.C. 611, 612, 75 S.E.2d 654, 655 (1953) (stating that “ ‘[a]n indictment for an offense

created by statute must be framed upon the statute, and this fact must distinctly

appear upon the face of the indictment itself’ ”) (quoting State v. Jackson, 218 N.C

373, 375, 11 S.E.2d 149, 150 (1940)). Thus, an indictment purporting to charge the

defendant with committing a sex offense against “Victim # 1,” without otherwise

naming the victim, is “facially invalid.” White, 372 N.C. at 254, 827 S.E.2d at 84. As

a result, given that “[a] valid bill of indictment is essential to the jurisdiction of the

trial court to try an accused for a felony,” State v. Rankin, 371 N.C. 885, 886, 821

S.E.2d 787, 790 (2018) (quoting State v. Campbell, 368 N.C. 83, 86, 772 S.E.2d 440,

443 (2015)), and given that the Court is obligated to address jurisdictional deficiencies

regardless of whether they are brought to its attention by the parties or not, State v.

Fowler, 266 N.C. 528, 530, 146 S.E.2d 418, 420 1966) (stating that “[t]he court cannot

properly give judgment unless it appears in the record that an offense is sufficiently

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charged” and that “[i]t is the duty of this Court to look through and scrutinize the

whole record, and if it sees that the judgment should have been arrested, it will ex

mero motu direct it to be done”) (citing State v. Strickland, 243 N.C. 100, 103, 89

S.E.2d 781, 784 (1955);2 State v. Thorne, 238 N.C. 392, 396, 78 S.E.2d 140, 142 (1953);

State v. Scott, 237 N.C. 432, 433–34, 75 S.E. 2d 154, 155 (1953)), we are required by

well-established North Carolina law to arrest judgment with respect to defendant’s

conviction for committing a sex offense against a child in 2013 on our own motion

subject to the understanding that “[t]he State, if it is so advised, may proceed against

the defendant upon a sufficient bill of indictment.” Benton, 275 N.C. at 382, 167

S.E.2d at 778.

A decision to vacate the judgment that the trial court entered in this case does

not, however, eliminate the necessity for the Court to determine whether the trial

court committed prejudicial error by failing to conduct a jury instruction conference

prior to the submission of the “position of trust or confidence” aggravating factor to

the jury given that defendant’s conviction for taking indecent liberties with a child in

2013 remains undisturbed. In view of the fact that the trial court consolidated

2 Our decision in Fowler refers to this case as State v. Strickland, which is how it is titled at the top of the relevant pages in Volume No. 243 of the North Carolina Reports. The table of contents in Volume No. 243 of the North Carolina Reports indicates that both State v. Strickland and State v. Nugent appear on the page in question. The South Eastern Reporter, however, refers to the case as State v. Nugent. Despite these differing names, each involves the same case, with Louis Hardy Strickland being shown as the second of the four defendants involved in the case before the trial court and with Mr. Strickland being the only defendant who sought appellate review of the trial court’s judgment by this Court.

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defendant’s convictions for committing a sex offense against a child and taking

indecent liberties with a child in 2013 for judgment and the fact that the sentence

embodied in the judgment that the trial court entered at the conclusion of the

sentencing proceeding was based upon defendant’s sex offense conviction, N.C.G.S. §

15A-1340.22(b) (2017) (providing that, in the event that the trial court elects to

consolidate multiple offenses for judgment, “[a]ny sentence imposed shall be

consistent with the appropriate prior conviction level of the most serious offense”),

the trial court will need to resentence defendant based upon his conviction for taking

indecent liberties with a child on remand. The necessity for the trial court to make

this resentencing decision, in turn, requires us to ascertain whether there is any legal

defect in the jury’s determination that the “position of trust or confidence”

aggravating factor exists in this case.

According to N.C.G.S. § 15A-1231(b) (2017), prior to “the arguments to the jury,

the judge must hold a recorded conference on instructions out of the presence of the

jury,” at which “the judge must inform the parties of the offenses, lesser included

offenses, and affirmative defenses on which he will charge the jury and must inform

them of what, if any, parts of tendered instructions will be given.” However, N.C.G.S.

§ 15A-1231(b) also provides that “[t]he failure of the judge to comply fully with the

provisions of this subsection does not constitute grounds for appeal unless his failure,

not corrected prior to the end of the trial, materially prejudiced the case of the

defendant.” As the Court of Appeals noted in Hill, 235 N.C. App. at 171, 760 S.E.2d

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at 89, the use of mandatory statutory language such as that found in N.C.G.S. § 15A-

1231(b) and the importance of the purposes sought to be served by the holding of a

jury instruction conference indicates that “holding a charge conference is mandatory”

and that “a trial court’s failure to do so is reviewable on appeal even in the absence

of an objection at trial.” In view of the fact that the record clearly establishes that

the trial court did not conduct a jury instruction conference or otherwise discuss the

manner in which the jury should be instructed concerning the issue of the existence

of the “position of trust or confidence” aggravating factor with counsel for the parties

before submitting that issue to the jury, we hold, despite defendant’s failure to lodge

a contemporaneous objection to trial court’s non-compliance with N.C.G.S. § 15A-

1231(b), that the trial court erred by failing to conduct a jury instruction conference

concerning the manner in which the jury should determine the existence or

nonexistence of the “position of trust or confidence” aggravating factor before allowing

the jury to determine whether that aggravating factor did or did not exist.3

3 We do not believe that the fact that N.C.G.S. § 15A-1231(b) requires the trial court to “inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will instruct the jury” supports an inference that no jury instruction conference is necessary outside the context of the guilt-innocence portion of a criminal trial. On the contrary, we are persuaded by the Court of Appeals’ reasoning in Hill, 235 N.C. at 172, 760 S.E.2d at 89, that the absence of any “specifics of how the trial court should conduct a separate sentencing proceeding” and the absence of any statutory language suggesting the existence of a legislative “intent to mandate a different procedure than that which governs trials of criminal offenses” in sentencing-related proceedings shows that N.C.G.S. § 15A- 1231(b) “applies to sentencing proceedings” conducted pursuant to N.C.G.S. § 15A- 1340.16(a1).

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The Court of Appeals appears to have concluded in Hill that the showing of

“material prejudice” ordinarily required as a prerequisite for an award of appellate

relief arising from a trial court’s failure to comply with N.C.G.S. § 15A-1231(b) need

not be made in the event that the trial court fails to hold any sort of jury instruction

conference at all, citing Hill, 235 N.C. App. at 172–73, 760 S.E.2d at 90 (citing State

v. Clark, 71 N.C. App. 55, 57–58, 322 S.E.2d 176, 177 (1984), disapproved on other

grounds in State v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990)), with this implicit

distinction between cases in which the trial judge entirely fails to comply with

N.C.G.S. § 15A-1231(b) and cases in which the trial court partially complies with

N.C.G.S. § 15A-1231(b) appearing to rest upon the use of “fully” in the relevant

statutory language. When read literally and in context, however, the reference in

N.C.G.S. § 15A-1231(b) to the necessity for the trial court to “comply fully” with the

statutory requirement that a jury instruction conference be conducted, instead of

distinguishing between a complete and a partial failure to comply with the applicable

statutory requirement, is intended to require the making of a showing of “material

prejudice” a prerequisite to an award of appellate relief regardless of the nature and

extent of the trial court’s non-compliance with N.C.G.S. § 15A-1231(b). As a result,

to the extent that the Court of Appeals decided in this case that, under Hill and Clark,

a total failure to conduct a jury instruction conference necessitates the holding of a

new proceeding for the purpose of determining that a particular aggravating factor

exists regardless of whether the defendant did or did not make a showing of “material

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prejudice,” that decision was erroneous and any earlier decisions to the contrary are

overruled.

As we have already noted, N.C.G.S. § 15A-1443(a) (2018) provides that a non-

constitutional error is prejudicial in the event that the defendant shows that “there

is a reasonable possibility that, had the error in question not been committed, a

different result would have been reached at the trial out of which the appeal arises.”

Although the Court of Appeals held that the trial court’s error materially prejudiced

defendant because the trial court failed to give defendant “the opportunity to object

to the instruction on the aggravating factor” and although defendant argues that the

trial court’s error materially prejudiced him because “[t]he instruction given did not

advise the jury that [the ‘position of trust and confidence’ aggravating] factor arises

only from the relationship between the defendant and the victim and applies in ‘very

limited circumstances,’ ”4 we do not find these arguments persuasive. As a practical

matter, the logic underlying the Court of Appeals’ prejudice determination is

tantamount to an assertion that mere non-compliance with N.C.G.S. § 15A-1231(b),

standing alone, automatically requires an award of appellate relief. For the reasons

set forth above, an automatic reversal rule cannot be squared with the language of

4 In addition to the arguments discussed in the text of this opinion, defendant also contends that the trial court failed to “advise the jury what it must do if one or more jurors did have a reasonable doubt” about the existence of the relevant aggravating circumstance and that “[t]he verdict form . . . contains no instructions about what to do if the answer was ‘[n]o.’ ” However, the trial court clearly instructed the jury that, it if failed to find the existence of the “position of trust or confidence” aggravating factor, it should “leave the blank—the space blank with regard to the aggravating factor.”

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N.C.G.S. § 15A-1231(b). In addition, given that the undisputed, overwhelming

evidence contained in the present record tends to show that the victim in this case

was defendant’s step-child, with the victim having been dependent upon the

defendant in various ways; given that defendant has not pointed to anything in the

present record that in any way suggests that there is any likelihood that the jury

would have relied upon any relationship other than the one between the victim and

defendant in the course of finding the existence of the relevant aggravating factor;

and given the strength of the evidence tending to show the existence of the “position

of trust or confidence” aggravating factor in this case, we are unable to conclude that

any of the arguments that defendant has advanced in an attempt to show “material

prejudice” have any merit either.5 Simply put, as this Court has previously noted,

“[a] parent-child relationship” of the type revealed by the undisputed evidence in this

case “is . . . indicative of a position of trust,” with evidence establishing the existence

of such a relationship tending to “support[ ] the aggravating factor of abusing a

position of trust.” Tucker, 357 N.C. at 639, 588 S.E.2d at 857 (2003). Thus, for all of

5 Although defendant asserted that the trial court should have included the additional information set out in the text in its sentencing proceeding instructions in his brief before the Court of Appeals, the relevant statements were made in the context of a discussion of the prejudice that resulted from the trial court’s failure to conduct a jury instruction conference rather than in the context of an independent challenge to the lawfulness of the trial court’s instructions to the jury concerning the existence or non-existence of the aggravating factor delineated in N.C.G.S. § 15A-1340.16(d)(15). As a result, there is no need for this Court to remand this case to the Court of Appeals for consideration of any challenge to the validity of the trial court’s instructions to the jury concerning the “position of trust or confidence” aggravating factor.

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these reasons, we conclude that the trial court’s failure to comply with N.C.G.S. §

15A-1231(b) did not “materially prejudice” defendant, so that defendant is not

entitled to any relief from the jury’s decision to find the existence of the “position of

trust or confidence” aggravating factor in this case.

Thus, for the reasons set forth above, we hold that the indictment underlying

defendant’s conviction for committing a sex offense with a child in 2013 is fatally

defective and that the trial court’s judgment with respect to the conviction must be

vacated. In addition, we hold that the Court of Appeals erred by determining that

the trial court’s erroneous failure to conduct a jury instruction conference prior to

submitting the issue of whether “defendant took advantage of a position of trust or

confidence, including a domestic relationship, to commit the offense” “materially

prejudiced” defendant. As a result, the judgment entered by the trial court based

upon defendant’s consolidated convictions is vacated, judgment is arrested in

connection with defendant’s conviction for committing a sex offense against a child in

2013, the Court of Appeal’s decision that the trial court’s failure to hold a jury

instruction conference before submitting the “position of trust or confidence”

aggravating factor to the jury constituted prejudicial error is reversed, and this case

is remanded to the Superior Court, Burke County, for resentencing based upon

defendant’s conviction for taking indecent liberties with a child, subject to the

understanding that the State remains free to recharge defendant with committing a

sex offense with a child in 2013 on the basis of a valid indictment.

-19- STATE V. COREY

VACATED IN PART, REVERSED IN PART.

Justice DAVIS did not participate in the consideration or decision of this case.

-20- Justice NEWBY dissenting in part and concurring in result only in part.

For the reasons stated in my dissenting opinion in State v. White, 827 S.E.2d

80 (N.C. 2019), I dissent from the portion of the majority opinion that holds the

indictment technically flawed. Defendant was fully aware of the identity of the victim,

his wife’s daughter, and the charges against him. As I stated in White, “Once again,

a child victim must endure the emotional distress and indignities of another trial

because of a purely legal technicality. It is this type of legal gamesmanship which

leads to cynicism about whether justice prevails in our criminal justice system.” Id.

at 85.

I concur in result only in part because the statutory language relevant here

does not specifically require a formal charge conference during the sentencing phase;

thus, the absence of a separate charge conference during the sentencing phase was

not error.

Section 15A-1231 governs jury instructions at trial and provides:

(b) Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the judge to comply fully with the provisions of this subsection does not constitute grounds STATE V. COREY

Justice Newby dissenting in part and concurring in result only in part.

for appeal unless his failure, not corrected prior to the end of the trial, materially prejudiced the case of the defendant.

N.C.G.S. § 15A-1231(b) (2017). The text of section 15A-1231 does not mention the

sentencing phase of trial or aggravating factors.

Section 15A-1340.16 governs the procedures for determining the existence of

aggravating factors during a noncapital sentencing. If the defendant does not admit

the existence of an aggravating factor, the State must prove its existence to the jury

beyond a reasonable doubt. N.C.G.S. § 15A-1340.16(a), (a)(1) (2017). Section

15A-1340.16(a1) allows the jury to determine if one or more aggravating factors exists

in the same trial or at the sentencing phase. N.C.G.S. § 15A-1340.16(a1).

If the court determines that a separate [sentencing] proceeding is required, the proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the guilty verdict is returned. . . . A jury selected to determine whether one or more aggravating factors exist shall be selected in the same manner as juries are selected for the trial of criminal cases.

Id. Neither the plain language of section 15A-1231(b) nor the plain language of

section 15A-1340.16 requires a trial judge to hold another formal charge conference

before instructing the jury at a sentencing proceeding to determine the existence of

an aggravating factor. It merely requires that the charge conference occur “[b]efore

the arguments to the jury” and “out of the presence of the jury.” N.C.G.S.

§ 15A-1231(b).

Justice Newby dissenting in part and concurring in result only in part.

Here the same jury that convicted defendant during the guilt-innocence phase

found the relevant aggravating factor during the sentencing phase. By holding the

charge conference during the guilt-innocence phase, the trial court complied with the

statutory requirements that the charge conference occur “[b]efore the arguments to

the jury” and “out of the presence of the jury.” Further, defendant had been properly

notified that the State intended to present an aggravating factor to the jury; he knew

the trial court would instruct the jury on the factor. The trial court gave defendant

and the State an opportunity to be heard before and after the trial court instructed

the jury on the aggravating factor. Defendant did not object. Reading the statute to

require an additional charge conference adds to the statutory text. Accordingly, I

respectfully dissent in part and concur in result only in part.

-3- Justice MORGAN dissenting, in part, and concurring in the result, in part.

While I agree with my colleagues in the majority that N.C.G.S. § 15-144.2(b)

(2017) expressly requires that a short-form indictment for statutory sex offense name

the alleged child victim, I must disagree with them that the indictment upon which

defendant was found guilty for committing a sex offense against a child in 2013 failed

to comport with the statute’s requirements. I would find that the indictment at issue

is facially valid and, therefore, sufficient to confer jurisdiction upon our courts to

adjudicate the case, because the indictment fulfills all of the legal requirements which

are required for the validity of the charging instrument. The indictment that this

Court determined to be fatally defective in State v. White, 372 N.C. 248, 256, 827

S.E.2d 80, 86 (2019), is virtually indistinguishable from the count of the indictment

in the present case from which the conviction arose which the majority has vacated,

while expressly informing the State that defendant may be recharged with the crime

of committing a sex offense against a child. I would embrace and apply the

fundamental reasoning of my dissenting opinion in White, thereby affirming

defendant’s conviction of committing a sex offense against a child. My resolution of

the jury charge conference issue which this case presents is consistent with the

learned majority; however, I find it needless to overrule the Court of Appeals

precedent of State v. Hill, 235 N.C. App. 166, 760 S.E.2d 85 (2014), disc. rev. denied,

367 N.C. 793, 766 S.E.2d 637 (2014) and its significant progeny to reach the same

legal conclusion determined by the majority, and would likewise reverse the lower

appellate court as to this sentencing matter and remand the case to the superior court STATE V. COREY

Justice Morgan dissenting, in part, and concurring in the result, in part.

for resentencing as dictated.

Section 15-144.2(b) of the North Carolina General Statutes, in delineating the

essentials of a short-form indictment for a sex offense, states in pertinent part:

(b) If the victim is a person under the age of 13 years, it is sufficient to allege that the defendant unlawfully, willfully, and feloniously did engage in a sex offense with a child under the age of 13 years, naming the child, and concluding as aforesaid [in subsection (a)].

N.C.G.S. § 15-144.2(b) (Supp. 2018). “Any bill of indictment containing the averments

and allegations named in this section is good and sufficient in law as an indictment

for sex offense against a child under the age of 13 years and all lesser included

offenses.” N.C.G.S. § 15-144.2(b) (Supp. 2018). Pursuant to N.C.G.S. § 14-27.4A(a)

(now recodified as N.C.G.S. § 14-27.28 (2017)), “[a] person is guilty of statutory sexual

offense with a child by an adult if the person is at least 18 years of age and engages

in a sexual act with a victim who is a child under the age of 13 years.” N.C.G.S. § 14-

27.28 (2017).

The majority conveniently disregards the extensive statutory, constitutional,

and conceptual developments which allow a measure of practical deviation from the

rigid and staid technical requirements imposed on criminal indictments at common

law in concluding here that the indictment upon which defendant was found guilty

for committing a sex offense against a child was fatally defective. Its taut and

unpliant embrace of such archaic principles are demonstrated by the majority’s heavy

Justice Morgan dissenting, in part, and concurring in the result, in part.

reliance on State v. Jackson, 218 N.C. 373, 11 S.E.2d 149 (1940) and its progeny of

cases which were decided by this Court some decades ago. However, more recently

this Court has recognized that “we are no longer bound by the ‘ancient strict pleading

requirements of the common law.’ ” State v. Williams, 368 N.C. 620, 623, 781 S.E.2d

268, 271 (2016) (quoting State v. Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746

(1985)). “Instead, contemporary criminal pleadings requirements have been ‘designed

to remove from our law unnecessary technicalities which tend to obstruct justice.’ ”

Id. The General Assembly has provided that “[e]very criminal proceeding by

indictment is sufficient in form for all intents and purposes if it expresses the charge

against the defendant in a plain, intelligible, and explicit manner, and the same shall

not be quashed, nor the judgment thereon stayed, by reason of any informality or

refinement, if in the bill or proceeding, sufficient matter appears to enable the court

to proceed to judgment.” N.C.G.S. § 15-153 (2017), quoted in Williams, 368 N.C. at

623, 781 S.E.2d at 271 (2016) (emphasis added). Our courts have joined the General

Assembly in its efforts to simplify the standard for indictments. See e.g., State v.

Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953). Because “the quashing of

indictments is not favored,” State v. James, 321 N.C. 676, 681, 365 S.E.2d 579, 582

(1988), an indictment is facially valid if it uses “either literally or substantially the

language found in the statute defining the offense.” Williams, 368 N.C. at 626, 781

S.E.2d at 272. Indeed, this Court has determined that “[a]n indictment or criminal

charge is constitutionally sufficient if it apprises the defendant of the charge against

Justice Morgan dissenting, in part, and concurring in the result, in part.

him with enough certainty to enable him to prepare his defense and to protect him

from subsequent prosecution for the same offense.” State v. Coker, 312 N.C. 432, 434,

323 S.E.2d 343, 346 (1984).

In the case at bar, the count of the indictment returned against defendant for

the purpose of charging him with committing a sex offense against a child alleged

that, “on or about the date of offense shown and in the county named above the

defendant named above unlawfully, willfully, and feloniously did engage in a sexual

act with Victim #1, a child who was under the age of 13 years, namely 10 – 11 years

of age. At the time of the offense the defendant was at least 18 years of age. This act

was in violation of the above-referenced law.” In finding that defendant’s indictment

for sex offense was facially invalid, the majority expressly relies upon its holding in

White that the “use of the phrase ‘Victim #1’ does not constitute ‘naming the child’ ”

as required by N.C.G.S. § 15-144.2(b). See White, 372 N.C. at 248, 827 S.E.2d at 80.

However, whether or not the State’s use of “Victim #1” was sufficient for purposes of

“naming the victim,” although relevant, is not as automatically dispositive of the

facial validity of the indictment at issue as the majority unfortunately believes.

Rather, as earlier noted and as evidenced in our previous holdings, the validity of the

indictment depends upon whether defendant was sufficiently apprised of the charge

against him. “It is the duty of this Court to look through and scrutinize the whole

record” in assessing whether “an offense is sufficiently charged.” State v. Fowler, 266

N.C. 528, 530, 146 S.E.2d 418, 420 (1966).

Justice Morgan dissenting, in part, and concurring in the result, in part.

Here, although the State employed an effort to protect the alleged victim’s

identity by identifying her as “Victim #1” in defendant’s indictment for the sex offense

at issue, a review of the whole record reveals that defendant was sufficiently apprised

of the charges against him. The indictment substantially tracks the critical language

of N.C.G.S. § 14-27.4A, the statute under which defendant was charged. The initials

of the alleged victim—which our appellate courts and federal courts have deemed

sufficient for an indictment to be facially valid—appeared in the arrest warrant that

was issued for defendant and which served as a preface for defendant’s subsequent

indictment for sex offense, as well as in the indictment charging defendant with

taking indecent liberties with a child in 2013. See e.g., State v. McKoy 196 N.C. App.

650, 657–58, 675 S.E.2d 406, 412, appeal dismissed and disc. rev. denied, 363 N.C.

586, 683 S.E.2d 215 (2009) (holding that “[t]he record on appeal demonstrates that

[d]efendant had notice of the identity of the victim . . . [because] [t]he arrest warrants

served on [d]efendant listed the victim by her initials.”); see also United States v.

Wabo, 290 F.Supp.2d 486, 490 (D.N.J. 2003) (concluding that “the Superseding

Indictment contains sufficient factual and legal information for the defense to prepare

its case. Although the victims are identified by initials, it is not essential that an

indictment identify victims by their given names.”). The notice to defendant of the

identity of “Victim #1” was so clear and effective that neither he nor his trial counsel

raised an issue of any insufficiency or vagueness in the indictment as to the alleged

child victim’s identity. And while my distinguished colleagues of the majority are

Justice Morgan dissenting, in part, and concurring in the result, in part.

correct that this Court may act ex mero motu on a matter involving the properness of

jurisdiction, it is inescapable to recognize that defendant considered himself to be so

apprised of the elements of his alleged crime of committing a sex offense against a

child that the issue was not even broached for review by this Court or by the Court of

Appeals.

I would find that the effectiveness and sufficiency of the notice given to

defendant as to the identity of “Victim #1” in the indictment for sex offense of a minor

child, based upon the alleged victim’s identity being sufficiently divulged in the

documents which are contained in the present record, is readily apparent from the

procedural and substantive circumstances at the trial level, and buttressed by the

lack of the issue being presented for resolution at the appellate level. With the

majority’s citation of language excerpted from White that the “facial validity [of an

indictment] ‘should be judged based solely upon the language of the criminal pleading

in question without giving any consideration to the evidence that is ultimately offered

in support of the accusation contained in that pleading,’ ” 372 N.C. at 254, 827 S.E.2d

at 84, the majority erects the proverbial straw man that it easily blows down by

conflating the State’s legally sufficient proof that defendant’s stepchild was the

indictment’s “Victim #1” with the State’s legally sufficient notice that defendant’s

stepchild was the indictment’s “Victim #1.” However, defendant did indeed know the

identity of the indictment’s “Victim #1” before any evidence was presented at trial,

Justice Morgan dissenting, in part, and concurring in the result, in part.

due to the legal sufficiency of the charging instrument and supportive documentation

in the record, and illustrated by defendant’s familiarity with the State’s contentions.

In my view, the majority does not sufficiently justify its determination that the

indictment charging defendant with committing a sex offense against a child is

facially invalid as to the identification of the alleged child victim as “Victim #1” in

light of the achievement of required notice to defendant which protected all of his

constitutional rights, while simultaneously satisfying the legal requirements for a

valid short-form indictment and salvaging some protection of privacy for the minor

child. I would therefore hold that the indictment was facially valid and sufficient to

confer jurisdiction upon our courts to adjudicate the case, thus affirming defendant’s

conviction.

I now turn to the issues that the parties have presented for our consideration.

North Carolina General Statutes Section 15A-1231 addresses the subject of jury

instructions in criminal jury trials. Subsection (b) of the statute reads as follows:

Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of

Justice Morgan dissenting, in part, and concurring in the result, in part.

trial, materially prejudiced the case of the defendant.

N.C.G.S. § 15A-1231(b) (2017) (emphasis added). Section 15A-1340.16(a) of the

General Statutes provides a general foundation for the concept of aggravated and

mitigated sentences in criminal matters, stating in pertinent part that “[t]he court

shall consider evidence of aggravating or mitigating factors present in the offense

that make an aggravated or mitigated sentence appropriate,” with “[t]he State

bear[ing] the burden of proving beyond a reasonable doubt that an aggravating factor

exists.” N.C.G.S. § 15A-1340.16(a) (2017). If the defendant does not admit to the

existence of an aggravating factor, then only a jury may determine if an aggravating

factor is present in an offense. N.C.G.S. § 15A-1340.16(a1). If the jury finds that any

aggravating factors exist, then the court may depart from the presumptive range of

sentences if the court determines that they outweigh any mitigating factors that are

present, and upon such a departure may impose a sentence that is permitted by the

aggravated range. N.C.G.S. § 15A-1340.16(b) (2017). A circumstance in the

perpetration of a criminal offense that the defendant took advantage of a position of

trust or confidence, including a domestic relationship, to commit the offense is

statutorily established as an aggravating factor. N.C.G.S. § 15A-1340.16(d) (15)

(2017).

I agree with the majority that, regardless of the nature and extent of the trial

court’s non-compliance with the requirements of N.C.G.S. § 15A-1231(b), defendant

is required to show that he was materially prejudiced by such non-compliance in order

Justice Morgan dissenting, in part, and concurring in the result, in part.

to be afforded relief on appeal and that defendant failed to demonstrate such

prejudice here. However, because the Court of Appeals firmly premised its decision

on its precedent embodied in State v Hill, 235 N.C. App. 166, 760 S.E.2d 85 (2014) in

determining that defendant was materially prejudiced because his trial counsel was

not given an opportunity to object to the instructions regarding the aggravating factor

before they were given to the jury, I depart from the majority regarding the manner

in which I reach the same conclusion that in the present case, defendant was not

materially prejudiced by the trial court’s failure to conduct a jury charge conference

on the submitted aggravating factor. In doing so, my alternative determination would

simultaneously distinguish the instant case from Hill on their respective procedural

facts, thereby preventing the need to overrule Hill and its progeny as the majority

has seen fit to do.

The Court of Appeals, in deciding Hill, deemed it important to accentuate that

“in addition to not holding a charge conference, the trial court, contrary to the General

Rules of Practice, did not, following his charge to the jury, give counsel an opportunity

to object to the charge . . . As a result, defense counsel was unable to have any input

into the jury instructions at all.” Hill, 235 N.C. App. at 173, 760 S.E.2d at 90. The

lower appellate court included this circumstance in its ultimate conclusion in Hill

that defendant experienced material prejudice. On the other hand, however, the trial

court in the case at bar provided both defendant and the State with the opportunity

to be heard both before and after the trial court’s instructions to the jury on the

Justice Morgan dissenting, in part, and concurring in the result, in part.

aggravating factor. The trial transcript in the present case contains the following

exchange among the trial court, the State’s prosecutor Mr. Swanson, and defendant’s

counsel Mr. Bostian, immediately after the jury returned its verdicts of guilty and at

the outset of the sentencing phase of the case:

THE COURT: Okay. Ladies and gentlemen, now that you have returned a verdict - - and I didn’t know this until you - - what - - I had a sense of what your verdicts were or know what your verdicts were - - the State in this matter has also filed what is called an “aggravating factor.”

An aggravating factor is something that the jury has to determine whether it exists or not. And if, in fact, the jury finds that it does exist, it is something the Court could consider in imposing the sentence in this case. I don’t know whether - -

Are you ready to proceed with that at this point?

MR. SWANSON: Yes, Your Honor, I think they have - - I am ready to proceed.

THE COURT: Are you ready to proceed?

MR. BOSTIAN: Yes, Your Honor.

(emphasis added). Both the State and defendant declined the opportunity to offer

further evidence on the aggravating factor before giving brief statements to the jury.

After instructing the jury, the trial court excused the jury from the courtroom to

deliberate the issue of the existence of the aggravating factor, and the transcript of

the proceedings displays the trial court’s invitation to counsel for both sides:

THE COURT: All right, outside the presence of the jury, Defendant is present in open court with his attorney, Mr.

Justice Morgan dissenting, in part, and concurring in the result, in part.

Swanson’s here on behalf of the State, the jury having returned those guilty verdicts on two of the six charges, and the State previously having asked the Court to make a determination with respect to the out-of-state Michigan conviction; is there anything else you want to be heard - - or do you wish to be heard any further on that?

(emphasis added). Neither defendant nor the State chose to say anything through

their respective counsel about the trial court’s instruction to the jury on the

aggravating factor.

Consistent with the Court of Appeals’ emphasis in Hill regarding the

importance of defense counsel’s opportunity at a trial’s sentencing phase to be heard

following the trial court’s jury charge instruction on an aggravating factor in order to

prevent a trial court’s failure to comply fully with the provisions of N.C.G.S. § 15A-

1231(b) from reaching a level of material prejudice to a defendant’s case, and our

recognition of this essential common trait which Hill shares with the instant case,

this Court has likewise determined the cases of State v. Bennett, 308 N.C. 530, 302

S.E.2d 786 (1983) and State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002).

In Bennett, we considered the provisions of N.C.G.S. § 15A-1231(b), in

conjunction with other statutes and pertinent rules, in assessing the defendant’s

argument that he was not given the opportunity by the trial court to object to

instructions outside the presence of the jury. After charging the jury with its

instructions, the trial court asked if there was “anything further from either the State

Justice Morgan dissenting, in part, and concurring in the result, in part.

or the defendant”; the defendant’s response was, “Nothing for the defendant.”

Bennett, 308 N.C. at 535, 302 S.E.2d at 789-90. We observed:

At this time the defendant could have objected to the instructions out of the hearing of the jury or requested that he be permitted to make his objections out of the presence of the jury. The record reveals that the defendant did neither. His failure to object to the instructions cannot, on the record before us, be said to have been caused by the lack of opportunity for the defendant to make his objections out of the hearing of the jury.

Id. Wiley presented another opportunity for this Court to examine the operation of

N.C.G.S. § 15A-1231(b) where the issue of material prejudice was raised with regard

to a jury charge conference and counsel’s ability to be heard concerning a trial court’s

instructions. We cited our holding in State v. Wise, 326 N.C. 421, 390 S.E.2d 142, cert.

denied, 498 U.S. 853, 111 S. Ct. 146, 112 L. Ed. 2d 113 (1990) as controlling the

outcome in Wiley in determining that, where both sides indicated that they were

satisfied with the jury charge, defendant cannot show material prejudice from a trial

court’s failure to comply fully with provisions of N.C.G.S. § 15A-1231(b) if the

defendant had the opportunity to object to the charge but declined to do so. Wiley, 355

N.C. at 630, 565 S.E.2d at 49 (2002).

The important aspect of defense counsel’s opportunity at a trial’s sentencing

phase to be heard following the trial court’s charge to the jury is a critical trial level

juncture which was not afforded to the defendant in Hill but was undoubtedly offered

to defendant in the current matter. This distinguishing feature provides a sufficient

Justice Morgan dissenting, in part, and concurring in the result, in part.

rationale upon which to find that defendant’s case was not materially prejudiced

under N.C.G.S. § 15A-1231, that the statute’s interpretation afforded by Hill from

the Court of Appeals and Hill’s predecessors of Wiley and Wise from this Court in

construing the content and applicability of N.C.G.S. § 15A-1231(b) is sound, and that

Hill and its progeny—coupled with their foundation which is consistent with this

Court’s precedent regarding similar issues under N.C.G.S. § 15A-1231(b)—are

procedurally distinguishable in evaluating trial proceeding occurrences such that it

is needless to overrule Hill and its guiding principles.

Based on the foregoing observations, I would reverse the Court of Appeals on

all issues, while accordingly reinstating defendant’s conviction for the offense of

committing a sex offense against a child and the trial court’s resulting judgment.

-13-