IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 24-815
Filed 2 July 2025
Wake County, Nos. 18 CRS 201795-910, 19 CRS 218465-910, 19 CR 218467-910
STATE OF NORTH CAROLINA
v.
KEVIN LEIGH WINGATE
Appeal by defendant from judgment entered 27 July 2023 by Judge Keith O.
Gregory in Superior Court, Wake County. Heard in the Court of Appeals
19 May 2025.
Attorney General Jeff Jackson, by Special Deputy Attorney General Tamika L. Henderson, for the State.
George B. Currin, and Cheshire Parker Schneider PLLC, by Hart Miles, for defendant.
ARROWOOD, Judge.
Kevin Leigh Wingate (“defendant”) appeals from judgment following a jury
verdict finding him guilty of four counts of indecent liberties with a child and one
count of a first degree statutory sex offense, and subsequent imposition of a 364
months minimum, 536 months maximum prison sentence. For the following reasons,
we vacate defendant’s sentence, and remand this matter to the trial court for a new
trial. STATE V. WINGATE
Opinion of the Court
I. Factual Background
On 29 January 2018, the Apex Police Department issued three warrants for
the arrest of defendant, on two counts of taking indecent liberties with a child under
N.C.G.S. § 14-202.1, and one count of first degree statutory sex offense under
N.C.G.S. § 14-27.29. Defendant was ultimately indicted on four counts of indecent
liberties and one count of first degree statutory sex offense, all under the statutes
cited in the arrest warrants. Following his arraignment, defendant pleaded not guilty
on 25 July 2018. Defendant’s trial began a full five years later on 24 July 2023,
lasting four days and concluding on 27 July. The testimony at trial tended to show
the following.
Defendant is father to a son, James1, who was 12 years old in September 2017.
At that time, James’ mother was vacationing in Scotland, leaving his father to watch
him and his sister. James testified that defendant walked into James’ room while he
was playing video games and began discussing puberty and adolescence, which James
found unusual. Defendant then proceeded to pull his pants down and told James to
touch his penis; when James declined, defendant grabbed James’ hand and forced
him to pull on defendant’s penis. James then pulled his own pants down at
defendant’s request, and defendant performed what James described as a “doctor’s
examination,” where defendant inspected James’ penis, although James was unable
1 A pseudonym is used to protect the identity of the victim, who was a minor at the time of the
offense and at the time of trial.
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to remember if defendant touched it. Defendant then lay on the bed with his penis
out and asked James if he had any questions.
Defendant then left the room and James resumed playing video games, only
for defendant to return again two hours later. Defendant began to talk to James
about his uncles who were gay, and some details about gay relationships; James
found this puzzling, as his uncles were not a significant part of his life. Defendant
left, then returned an hour later and told James that if he played with defendant the
way his uncles played, he would get pizza. James declined, to which defendant
responded, “Good job,” and gave James a high five. Defendant left and a little while
later made a frozen pizza for the children. James testified that there were no more
uncomfortable encounters while his mother was in Scotland, but defendant would
occasionally wrestle with him.
James did not tell his mother what defendant had done when she arrived
home, as he thought it could have simply been a normal experience. However, during
a health class covering instances of abuse, James testified that he realized that what
defendant had done was not actually normal. Then, the first weekend after his
mother had returned home, she and James’ sister were downstairs, while he was
upstairs in his room playing video games. James testified that defendant came in
and began wrestling with James as he had in the past; but defendant proceeded to
overpower James, who was wearing cotton pajama pants, and he said he felt
defendant’s penis go inside his anus about 12 times. James brought his arm forward
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to try and get off bed, but defendant grabbed and pulled on his arm. After James
began to cry, defendant let him go, and James went downstairs to tell him mother
that defendant had hurt his shoulder.
James did not initially tell his mother about anything that defendant had done
other than hurt his shoulder; he testified that immediately afterwards, his mind was
“clouded with the fact that my shoulder was hurting and I was crying,” and that he
was unsure whether what had just happened was a type of wrestling move. He
eventually told his mother that defendant had made James touch his penis, but not
about the anal penetrations; he testified that he was unsure why he did not tell his
mother this. James’ mother had him visit her own therapist, then James spoke with
Kennedy Gayno (“Mr. Gayno”), an intake social worker with Child Protective
Services, on 25 October 2017. Mr. Gayno testified at trial that James told him about
the incident of defendant pulling his pants down and trying to force James to touch
his penis. Mr. Gayno did a home visit to defendant that same day, where defendant
admitted to pulling down his pants and showing James his penis, but denied forcing
him to touch it. Defendant agreed to move out of the home due to his admitted
exposing himself.
James met with Leigh Howell (“Ms. Howell”), a child abuse evaluation
specialist at SAFEchild, a child advocacy center, on 28 November 2017, where she
conducted a forensic interview. At trial, Ms. Howell was deemed an expert in the
diagnostic interviewing of children and the disclosure process for child sexual abuse.
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During this interview, James told Ms. Howell that he never touched his father’s
penis, nor did he disclose the anal penetrations. That same day, James received a
physical examination from Dr. Elizabeth Witman (“Dr. Witman”), a general
pediatrician on staff at Wake Medical Children’s Hospital. Dr. Witman testified that
the results of this exam were normal, including the genital/anal exam. She testified
that it did not surprise her that James’ exam was normal, as abnormal physical
findings in cases of child sexual abuse are exceptional, in about five percent of cases.
Dr. Witman stated that the lack of physical findings were consistent with James’
disclosure of sexual abuse.
James began seeing therapist Miriane Portes (“Ms. Portes”) on
1 December 2017. Ms. Portes had a bachelor’s degree in psychology, a master’s
degree in social work, a certification in Eye Movement Desensitization and
Reprocessing (EMDR) therapy (a trauma-treatment therapy), and was deemed by the
trial court to be an expert in trauma therapy. James met with Ms. Portes regularly
over the ensuing months, and began to relate to her in a piecemeal fashion what he
remembered while engaging in EMDR. It is not entirely clear from Ms. Portes’
testimony how or when James disclosed the alleged anal penetrations; on
22 January 2018, he described defendant coming into the room and thrusting his
genitals towards him and pulling his arm back. He continued to discuss feelings of
guilt from the experience over the next few sessions. On 5 June, Ms. Portes
attempted to create a chronology of the abuse James suffered; at this session, James
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told her that defendant penetrated him 8–9 times. Sometime in the spring of 2018,
Ms. Portes diagnosed James with PTSD; she testified that the symptoms he was
experiencing were consistent with the trauma had reported.
Defendant did not present any witnesses during the trial, and evidence closed
at the end of Ms. Portes’ testimony. Defendant moved to dismiss all charges, which
the trial court denied. The jury found defendant guilty on all charges, and he was
subsequently sentenced to 364 months minimum, 536 months maximum active
prison sentence. Defendant gave notice of appeal 7 August 2023.
On 22 April 2025, the State filed a Motion to Correct Error in Appellate Brief.
We exercise our discretion to allow the motion and incorporate the correction into the
State’s argument on appeal.
II. Discussion
Defendant raises five issues on appeal: (1) whether the indictment provided
sufficient notice that defendant had been charged with the offense of which he was
ultimately convicted; (2) whether the trial court erred in sentencing defendant to the
mandatory 300 month minimum sentence for a sexual offense with a child by an
adult, since he was not indicted for this offense; (3) whether the trial court committed
plain error by allowing expert testimony that vouched for the credibility of the victim
and constituted an improper opinion of guilt; (4) whether the trial court committed
reversible error by denying defendant’s motion to dismiss the charge of first degree
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statutory sexual offense; and (5) whether defendant’s trial counsel rendered
ineffective assistance of counsel.
A. Standard of Review
In order to preserve an issue for appellate review, a party must object before
the trial court; otherwise, the issue is deemed waived. N.C. R. App. P. Rule 10(a)(1).
However, in criminal cases, even if an issue is unpreserved, it may be raised for the
first time on appeal on the basis of plain error. Id. Rule 10(a)(4). Plain error is a
fundamental error that so affected the trial proceedings that the jury would have
returned a different verdict absent the error. State v. Lawrence, 365 N.C. 506, 518
(2012). Plain error is to be applied cautiously and reserved for exceptional cases. Id.
Where we find plain error to have affected a jury verdict, the appropriate remedy is
to order a new trial. See, e.g., State v. Towe, 366 N.C. 56, 63 (holding that testimony
characterizing a victim as sexually abused amounted to plain error, and ordering a
new trial). Because defendant counsel did not object to the testimony of the expert
witnesses at trial, we review this issue for plain error.
B. Impermissible Vouching
“Our appellate courts have consistently held that the testimony of an expert to
the effect that a prosecuting witness is believable, credible, or telling the truth is
inadmissible evidence.” State v. Bailey, 89 N.C. App. 212, 219 (1988) (citations
omitted). The application of this holding to cases involving the alleged sexual abuse
of children has produced the rule that an expert witness, in the absence of physical
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evidence, may not testify that sexual abuse actually occurred. State v. Stancil, 355
N.C. 266, 266–67 (2002); see also State v. Chandler, 364 N.C. 313 (2010) (“And for
expert testimony presenting a definitive diagnosis of sexual abuse, an adequate
foundation requires supporting physical evidence of the abuse.”). Improper testimony
need not take form of an explicit statement by the expert witness that the alleged
victim was sexually abused: we have held that a doctor testifying that a child’s
“disclosure” was “consistent with sexual abuse” was impermissible vouching, where
the “disclosure” was the child’s description of abuse. State v. Frady, 228 N.C. App.
682, 685–86 (2013). But see State v. Betts, 267 N.C. App. 272, 281 (“Frady does not
stand for the proposition that use of the word ‘disclosure’ was error. Rather, the
expert's testimony in Frady that the victim’s description of the abuse ‘was consistent
with sexual abuse’ was the equivalent of testifying the victim was credible.”).
1. Miriane Portes
In the case sub judice, Ms. Portes made a number of statements during her
testimony that communicated to the jury her own belief that James had been sexually
abused by defendant, thereby engaging in impermissible vouching. Ms. Portes
testified that “since there’s a lot of avoidance with trauma, I knew that there was a
lot of things that [James] hadn’t reported yet . . . .” The entire basis for Ms. Portes’
belief that there were “things” James had not yet reported was her belief that James
had been sexually abused, as she almost explicitly states. In subsequent testimony,
she stated, “I started understanding that some things [defendant did] were part of
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the grooming behavior before it escalated to the wrestling incident.” When Ms. Portes
described the beginning of her therapy sessions with James, she stated that she
“already knew why he was there because he had been referred by a colleague of mine,
so I already knew that he was seeking therapy for sexual abuse.” Ms. Portes does not
use the term “alleged” or “reported” sexual abuse; rather, her testimony indicates that
James was in therapy for sexual abuse that actually occurred. The State contends
that this was merely a description of the referral process rather than vouching. Even
assuming this is true, Ms. Portes should not have testified in this way, given the
implication of the actual occurrence of abuse.
Finally, and perhaps most importantly, we address Ms. Portes’ testimony that
she diagnosed James with PTSD. Our Supreme Court has held that “evidence that a
prosecuting witness is suffering from post-traumatic stress syndrome should not be
admitted for the substantive purpose of proving that a rape has in fact occurred.”
State v. Hall, 330 N.C. 808, 821 (1992). The process for diagnosing PTSD is a
therapeutic process, rather than a fact-finding one, and the jury may accord too much
weight to this therapeutic diagnosis. Id. at 820. However, a PTSD diagnosis may be
introduced for other purposes, such as corroboration or as explanation for delays in
reporting. Id. at 822.
Ms. Portes testified that she eventually diagnosed James with PTSD, and that
the symptoms with which he presented were consistent with the trauma that he had
reported. This testimony is of the precise sort forbidden by Hall, and by extension,
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Frady and Stancil: by stating that these PTSD symptoms were consistent with
James’ disclosures of the trauma of sexual abuse, Ms. Portes was in effect stating
that these disclosures were more credible, because James had these symptoms. Not
all of Ms. Portes’ references to PTSD were necessarily in error, given that Hall
permits the introduction of a PTSD diagnosis for the purposes of explaining delays in
reporting. Because James’s report of defendant’s anal penetration came much later
than his reports of defendant’s other behaviors, a PTSD diagnosis would be useful in
explaining this delay. Instead, however, Ms. Portes’s testimony that she diagnosed
James with PTSD was used as substantive evidence to bolster James’ reports of
abuse, which is impermissible.
2. Dr. Elizabeth Witman
Dr. Witman’s interaction with James was limited to her physical evaluation of
him as part of the SAFEchild Advocacy Center, however at trial she stated that the
lack of physical findings was consistent with James’ disclosure of sexual abuse. This
testimony was in error.
“Whether sufficient evidence supports expert testimony pertaining to sexual
abuse is a highly fact-specific inquiry.” Chandler, 364 N.C. at 313. In State v.
Warden, our Supreme Court reaffirmed the rule that a definitive diagnosis of sexual
abuse was impermissible without supporting physical evidence, but declined to
specify what would qualify as a “diagnosis” or whether a lack of physical evidence
could be incorporated into an expert opinion. See 376 N.C. 503, 506–07 (2020).
- 10 - STATE V. WINGATE
In State v. Davis, this Court held that it was “impermissible for an expert to
offer an opinion that a lack of physical evidence is consistent with sexual abuse . . . ”
while recognizing that ”it may permissible for the State to offer expert testimony that
the lack of physical evidence does not necessarily rule out that sexual abuse may have
occurred.” 265 N.C. 512, 517 (2019) (emphasis in original). On the other hand, in
State v. Perdomo, we concluded that expert witness testimony that a girl’s disclosure
of sexual abuse was consistent with a lack of physical finding was not in error, since
her testimony was based on her expertise and “provided the jury with an opinion,
based on her expertise, that a lack of physical findings of sexual abuse does not
generally correlate with an absence of sexual abuse.” 276 N.C. App. 136, 141–42
(2021).
Here, Dr. Witman stated that her findings, specifically the absence of physical
signs of abuse, were nevertheless consistent with James’s disclosure of sexual abuse.
She did not clarify that the lack of evidence did “not necessarily rule out” abuse, or
provide a general opinion that the lack of physical findings does not generally
correlate with an absence of sexual abuse, both of which may have been permissible
under Davis. Instead, she described the lack of physical findings as “consistent” with
a disclosure of sexual abuse, which is impermissible under Davis. Therefore, Dr.
Witman’s testimony amounted to impermissible vouching.
C. Plain Error
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Because defense counsel never objected to Ms. Portes’ or Dr. Witman’s
testimony, we review only for plain error. Applying the framework of State v. Ryan,
we hold that impermissible vouching from this testimony rose to the level of plain
error, requiring a new trial.
Expert testimony that amounts to impermissible vouching often draws no
objection during trial, leading to a significant number of cases that have consequently
reviewed this issue for plain error. See, e.g., State v. Couser, 163 N.C. App. 727 (2004)
(holding that the physical evidence was insufficient to support the expert witness’
opinion of sexual abuse, and other evidence was lacking such that the testimony was
plain error); State v. Crabtree, 249 N.C. App. 395 (holding that one of the expert
witnesses impermissibly vouched for the victim, but eyewitness testimony prevented
this from rising to plain error). Our review of many of these cases has produced a
useful framework for evaluating plain error under these circumstances:
Notably, a review of relevant case law reveals that where the evidence is fairly evenly divided, or where the evidence consists largely of the child victim’s testimony and testimony by corroborating witnesses with minimal physical evidence, especially where the defendant has put on rebuttal evidence, the error is generally found to be prejudicial, even on plain error review, since the expert’s opinion on the victim’s credibility likely swayed the jury’s decision in favor of finding the defendant guilty of a sexual assault charge.
State v. Ryan, 223 N.C. App. 325, 337 (2012) (citations omitted).
In this case, there was no physical evidence indicating that an assault
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occurred, as Dr. Witman’s testimony emphasized. The State’s evidence was primarily
the testimony of James himself, with Mr. Gayno, Dr. Witman, Ms. Howell and Ms.
Portes serving as witnesses corroborating James’s story. Ms. Portes was the only one
who testified that James had told her that defendant penetrated him, and it was her
testimony that attempted to explain why it took James as long as he did to actually
disclose the anal penetrations. Ms. Portes saw James for many months, and had
more significant interactions with him on this matter than anyone else in his life, as
James shared more memories with Ms. Portes than he did his own mother.
The errors of Ms. Portes’s testimony are compounded when viewed in the
context of Dr. Witman’s testimony concerning the physical exam. Dr. Witman’s
testimony placed more weight and significance on the corroborating testimony of Ms.
Portes. She also impermissibly vouched for the credibility of the allegations as
previously discussed. Given the crucial role Ms. Portes played in the trial coupled
with the vouching and de-emphasis of the lack of physical evidence from Dr. Witman’s
testimony, it is apparent from the transcript that their testimony “likely swayed the
jury’s decision in favor of finding the defendant guilty of a sexual assault charge.”
Ryan, 223 N.C. App. at 337. Because the jury would have reached a different verdict
absent this impermissible testimony, we order defendant’s sentence to be vacated and
this case remanded to the trial court for a new trial.
D. Sufficiency of Defendant’s Indictment
We briefly address defendant’s argument that the indictment under which he
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was eventually convicted of statutory sex offense on a child by an adult was
insufficient to place him on notice that he had been charged with that offense. We
agree and address this issue to ensure that defendant is properly indicted and
arraigned, and thereby properly placed on notice, before the commencement of his
new trial.
Although defendant failed to raise the issue of a defective indictment before
the trial court, a defendant may raise the issue of jurisdiction at any point, including
for the first time on appeal. See State v. Harwood, 243 N.C. App. 425, 427–28 (2015).
“On appeal, we review the sufficiency of an indictment de novo.” State v. McKoy, 196
N.C. App. 650, 652 (2009).
A sufficient indictment requires the following:
(1) The offense is charged in a plain, intelligible, and explicit manner; (2) The offense is charged properly so as to avoid the possibility of double jeopardy; and (3) There is such certainty in the statement of the accusation as to enable the accused to prepare for trial and to enable the court, on conviction or plea of Nolo contendere or guilty to pronounce sentence according to the rights of the case.
State v. Reavis, 19 N.C. App. 497, 498 (1973) (citation omitted). If these requirements
are met, a reference to the wrong statute, and the caption of the indictment referring
to the name of the wrong offense, is not fatal to the sufficiency of the indictment. Id.;
State v. Billinger, 213 N.C. App. 249, 257 (2011).
The indictment at issue listed the offense as “First Degree Statutory Sex
Offense,” and cited N.C.G.S. § 14-27.29 as the statute violated. {R 12} At defendant’s
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arraignment, the State read the charge as “one count of first degree statutory sex
offense,” to which defendant pled not guilty. The jury verdict sheet listed the offense
with this same name, and the trial court initially sentenced defendant under § 14-
27.29 before the State noted that it was “the big B1.” While defendant was ultimately
sentenced in accordance with the minimum sentence required under § 14-27.28,
statutory sex offense on a child by an adult, his judgment and commitment sheet read
that he was convicted under § 14-27.29.
At trial, the State announced that defendant had been charged with first
degree statutory sex offense with a child by an adult, although later that day the trial
court referred to the charge as first degree statutory sex offense. During a motion
conference, the State again referred to the charge as sex offense with a child by an
adult, and during the charge conference and jury, the trial court referred to the
offense in this way and read the proper elements of that offense, including the
element that the defendant must be over 18. However, defendant was announced in
open court of having been convicted of first-degree statutory sex offense.
It is clear from this summary of the various references to defendant’s charge
that the indictment violates the third requirement of the Reavis test: “such certainty”
in the indictment to allow the defendant to prepare for trial and the court to
pronounce sentence. We read the holdings of Reavis and Billinger relating to statute
references and captions not as permission to ignore as a rule these portions of the
indictment, but as guidance that when an indictment is otherwise clear, these aspects
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will not render an indictment fatally flawed. Contained within defendant’s
indictment were all the facts necessary to convict under § 14-27.28; however, § 14-
27.29 is a lesser-included offense, as it contains all the same elements except the
adulthood of the defendant. It was uncertain under the indictment with which offense
defendant had been charged, as was made clear by the confusion of the trial court.
Under State v. Singleton, our Supreme Court requires that a defendant raising
the issue of an insufficient indictment must show prejudice. 386 N.C. 183, 210 (2024).
Here, defendant was prejudiced by the insufficient indictment; the difference in
length of the sentences he could receive under the two different offenses is significant,
and, at the very least, may well have played a role in his decision to plead not guilty
at his arraignment. Therefore, while we ultimately hold that defendant is entitled to
a new trial due to the plain error of the expert witness testimony at trial, we also
place the State and the trial court on notice that defendant’s conviction would have
been vacated if we were required to rule on the sufficiency of the indictment, and urge
them to ensure that any errors of notice are addressed.
III. Conclusion
For the foregoing reasons, we vacate the sentence of the trial court, and
remand for a new trial on these charges.
VACATED AND REMANDED.
Judge HAMPSON concurs.
Chief Judge DILLON dissents by separate opinion.
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DILLON, Chief Judge, dissenting.
The majority’s mandate is to vacate the judgment and remand for a new trial.
For the reasoning below, my vote is to vacate the judgment sentencing Defendant
under N.C.G.S. § 14-27.28 and remand, not for a new trial, but rather for entry of
judgment sentencing Defendant based on the jury’s verdict convicting Defendant of
first-degree statutory sex offense under N.C.G.S. § 14-27.29. Accordingly, I
respectfully dissent.
The majority reaches its result based on its conclusion that the vouching of the
victim’s credibility by two witnesses for the State constituted plain error. I certainly
agree that the vouching was not competent evidence to prove Defendant’s guilt.
However, I conclude the trial court did not commit plain error concerning the
vouching testimony for two independent reasons.
First, I do not believe the trial court erred at all concerning the vouching
testimony, much less plainly erred.
Our Supreme Court recently explained that a defendant mounting a challenge
on appeal based on plain error must show three things, including that “a fundamental
error occurred at trial.” State v. Reber, 386 N.C. 153, 158 (2024). In other cases, that
Court has instructed that the fundamental error must be “error by the trial court.”
State v. Duke, 360 N.C. 110, 138 (2005) (emphasis added). See also State v.
Cummings, 352 N.C. 600, 636 (2000); State v. Walker, 316 N.C. 33, 39 (1986). For
instance, a defendant is entitled to plain error review where his attorney fails to STATE V. WINGATE
DILLON, C.J., dissenting
object to evidence offered at trial where the trial court previously made a ruling
outside the presence of the jury that the evidence was admissible. See State v.
Williams, 370 N.C. 526 (2018) (adopting dissenting opinion in 253 N.C. App. 606
(2017)). And a defendant may be entitled to plain error review where his attorney
fails to object to trial testimony but where the trial court had an affirmative duty to
intervene ex mero motu when the evidence was being offered. See, e.g., State v. Jones,
355 N.C. 117, 133 (2002) (holding the trial court errs by failing to intervene during a
prosecutor’s closing when the prosecutor makes grossly improper remarks).
However, where the error in allowing improper vouching testimony or other
inadmissible evidence is simply that of a defendant’s attorney failing to object, the
defendant’s remedy is to file a motion for appropriate relief alleging ineffective
assistance of counsel. In such a case, the defendant has failed to meet the first prong
of showing plain error, that a fundamental error was committed by the trial court.
In the present case, it may be that Defendant’s attorney chose not to intervene
based on trial strategy. Perhaps Defendant’s trial counsel did not want to draw extra
attention to the improper vouching statements by objecting to them. In any event,
this mystery can only be resolved in a hearing on a motion for appropriate relief.
Second, even assuming the trial court had a duty to intervene to address the
improper vouching statements, I conclude such error by the trial court did not rise to
the level of plain error. The statements were, indeed, prejudicial to Defendant.
However, Defendant has failed to demonstrate that the jury “probably” would have
2 STATE V. WINGATE
reached a different verdict, but for the vouching. See Reber, 386 N.C. at 160.
Specifically, there was evidence of Defendant’s guilt apart from the vouching
statement, including the victim’s first-hand account of Defendant’s acts.
My vote, though, is to vacate the trial court’s judgment and remand for entry
of a new judgment. I agree with the majority in its dicta contained in the section of
its opinion titled “Sufficiency of Defendant’s Indictment” that the trial judge should
have sentenced under N.C.G.S. § 14-27.29 rather than under N.C.G.S. § 14-27.28.
The indictment states that Defendant was being charged for violating N.C.G.S.
§ 14-27.29, which requires proof that the defendant is at least four years older than
his child victim. N.C.G.S. § 14-27.28, though, requires extra proof that the defendant
is, in fact, at least 18 years of age.
Admittedly, there is no question Defendant was at all times relevant to this
matter over 18 years of age and that the jury would have had no issue making this
additional finding sufficient to convict Defendant under N.C.G.S. § 14-27.28. And I
am not contending that the defect was jurisdictional. However, I agree with the
majority that Defendant suffered prejudice by the pleading deficiency in the
indictment as carried forward in subsequent proceedings. See State v. Singleton, 386
N.C. 183, 210 (2024). As noted by the majority, at his arraignment, Defendant was
never asked to plead to a charge under N.C.G.S. § 14-27.28. He was merely asked to
plead to a charge under N.C.G.S. § 14-27.29. And the jury’s verdict sheet shows that
they were convicting Defendant for violating N.C.G.S. § 14-27.29.
3 STATE V. WINGATE
Defendant’s belief that he was being prosecuted under N.C.G.S. § 14-27.29 may
have played a role in his pleading “not guilty” at his arraignment and otherwise not
negotiating a plea bargain, as a conviction under N.C.G.S. § 14-27.28 carries the
possibility of a substantially greater sentence than the charge for which he thought
he was being prosecuted. Surely, it is within the discretion of the prosecutor to charge
a defendant with a lesser crime is (s)he so chooses, though the prosecutor may have
evidence of the defendant’s guilt of a greater crime.
Accordingly, my vote is to vacate the judgment convicting Defendant of and
sentencing him under N.C.G.S. § 14-27.28 and remand with instructions that the trial
court enter judgment convicting Defendant of violating N.C.G.S. § 14-27.29 and
sentence him accordingly.