State v. Corey ( 2019 )

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unpublished decision of the Court of Appeals, No. COA17-1031, 2018 WL 2642772(N.C. Ct.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-
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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.
-18-
STATE V. COREY
Opinion of the Court
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
Opinion of the Court
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).
-2-
STATE V. COREY
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
-2-
STATE V. COREY
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
-3-
STATE V. COREY
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).
-4-
STATE V. COREY
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
-5-
STATE V. COREY
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,
-6-
STATE V. COREY
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
-7-
STATE V. COREY
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
-8-
STATE V. COREY
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
-9-
STATE V. COREY
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.
-10-
STATE V. COREY
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
-11-
STATE V. COREY
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
-12-
STATE V. COREY
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-